CELEX: 52014PC0605
Language: en
Date: 2014-09-29
Title: Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on protection against injurious pricing of vessels (codification)

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		52014PC0605
		
			Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on protection against injurious pricing of vessels (codification) /* COM/2014/0605 final - 2014/0280 (COD) */
			
				
		
		
			
			   	EXPLANATORY MEMORANDUM
1.           In the context of a people’s
Europe, the Commission attaches great importance to simplifying and clarifying
the law of the Union so as to make it clearer and more accessible to citizens,
thus giving them new opportunities and the chance to make use of the specific
rights it gives them.
This aim cannot be achieved so long as numerous
provisions that have been amended several times, often quite substantially,
remain scattered, so that they must be sought partly in the original instrument
and partly in later amending ones. Considerable research work, comparing many
different instruments, is thus needed to identify the current rules.
For this reason a codification of rules that
have frequently been amended is also essential if the law is to be clear and
transparent.
2.           On 1 April 1987 the Commission
decided[1]
to instruct its staff that all acts should be codified after no more than ten
amendments, stressing that this is a minimum requirement and that departments
should endeavour to codify at even shorter intervals the texts for which they
are responsible, to ensure that their provisions are clear and readily
understandable.
3.           The Conclusions of the Presidency
of the Edinburgh European Council (December 1992) confirmed this[2], stressing the
importance of codification as it offers certainty as to the law applicable to a
given matter at a given time.
Codification must be undertaken in full
compliance with the normal procedure for the adoption of acts of the Union.
Given that no changes of substance may be made
to the instruments affected by codification, the European Parliament, the
Council and the Commission have agreed, by an interinstitutional agreement
dated 20 December 1994, that an accelerated procedure may be used for the
fast-track adoption of codification instruments.
4.           The purpose of this proposal is
to undertake a codification of Council Regulation (EC) No 385/96 of
29 January 1996 on protection against injurious pricing of vessels[3]. The new Regulation
will supersede the various acts incorporated in it[4]; this proposal fully
preserves the content of the acts being codified and hence does no more than
bring them together with only such formal amendments as are required by the
codification exercise itself.
5.           The codification proposal was drawn up on the basis of
a preliminary consolidation, in 22 official languages, of Regulation (EC)
No 385/96 and the instrument amending it, carried out by the Publications
Office of the European Union, by means of a data‑processing system.
Where the Articles have been given new numbers, the correlation between the old
and the new numbers is shown in a table set out in Annex II to the
codified Regulation.
ê 385/96
(adapted)
2014/0280 (COD)
Proposal for a
REGULATION OF THE EUROPEAN PARLIAMENT
AND OF THE COUNCIL
on protection against injurious pricing of
vessels (codification)
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty Ö on the
Functioning of the European Union Õ, and in
particular Article Ö 207(2) Õ thereof,
Having regard to the proposal from the
European Commission,
After transmission of the draft legislative
act to the national Parliaments,
Having regard to the opinion of the
European Economic and Social Committee[5],

Acting in accordance with the ordinary
legislative procedure,
Whereas:
ê 
(1)       Council Regulation (EC)
No 385/96[6]
has been substantially amended[7].
In the interests of clarity and rationality, that Regulation should be
codified.
ê 385/96
recital 1
(2)       Multilateral negotiations
conducted under the auspices of the Organisation for Economic Co-operation and
Development led to the conclusion, on 21 December 1994, of an
Agreement Respecting Normal Competitive Conditions in the Commercial Shipbuilding
and Repair Industry (‘the Shipbuilding Agreement’).
ê 385/96
recital 2 (adapted)
(3)       It has been recognised in
the framework of the Shipbuilding Agreement that the special characteristics of
ship-purchase transactions have made it impractical to apply countervailing and
anti-dumping duties, as provided Ö for Õ under Article
VI of the General Agreement on Tariffs and Trade, the Agreement on Subsidies
and Countervailing Measures, and the Agreement on Implementation of Article VI
of Ö the
General Agreement on Tariffs and Trade Õ 1994 Ö (‘the
1994 Anti-Dumping Agreement’) Õ annexed to the
Agreement establishing the World Trade Organization. The need to provide for an
effective means of protection against sales of ships below their normal value
which cause injury has led to the conclusion of a Shipbuilding Injurious
Pricing Code which, together with its Basic Principles, constitutes Annex III
to the Shipbuilding Agreement (‘the IPI Code’).
ê 385/96
recital 3 (adapted)
(4)       The text of Ö the Õ IPI Code is
mainly based on the Ö 1994
Anti-Dumping Õ Agreement, but
deviates from Ö that Õ Agreement when
warranted by the specific nature of ship‑purchase transactions. Therefore
the language of the IPI Code Ö should be
reflected Õ in Ö Union Õ legislation,
to the extent possible on the basis of the text of [Council Regulation (EC) No 1225/2009[8]].
ê 385/96
recital 4 (adapted)
(5)       The Shipbuilding Agreement
and the legislative provisions deriving therefrom are of significant importance
for Ö Union Õ law.
ê 385/96
recital 5 (adapted)
(6)       To maintain the balance of
rights and obligations which the Shipbuilding Agreeement establishes, action
should be taken by the Ö Union Õ against any
injuriously priced vessel whose sale at less than normal value causes injury to
the Ö Union Õ industry.
ê 385/96
recital 6 (adapted)
(7)       Vis-à-vis
shipbuilders from parties to the Shipbuilding Agreement, the sale of a vessel
may be subject to an investigation by the Ö Union Õ only when the
buyer of the vessel is a Ö Union Õ buyer, and
provided the ship is not a military vessel.
ê 385/96
recital 7 (adapted)
(8)       It is desirable to Ö set
out Õ clear and
detailed rules on the calculation of Ö the Õ normal value.
In particular such value should where possible be based on a representative
sale of a like vessel in the ordinary course of trade in the exporting country.
It is expedient to define the circumstances in which a domestic sale may be
considered to be made at a loss and may be disregarded and in which recourse
may be had to sale of a like vessel to a third country or to constructed normal
value. It is also desirable to provide for a proper allocation of costs, even
in start-up situations. It is also necessary, when constructing normal value,
to indicate the methodology to be applied in determining the amounts for
selling, general and administrative costs and the profit margin that should be
included in such value.
ê 385/96
recital 8 (adapted)
(9)       In order to be able to
apply correctly the instrument for combating injurious pricing, the Commission Ö should Õ take all
necessary steps to ascertain, in the large conglomerates and holdings of third
countries, the validity of accounting charges when the cost price structure
needs to be estimated.
ê 385/96
recital 9 (adapted)
(10)     When determining Ö the Õ normal
value for non-market economy countries, it appears prudent to set out rules for
choosing the appropriate market-economy third country to be used for such
purpose and, where it is not possible to find a suitable third country, to
provide that Ö the Õ normal
value may be established on any other reasonable basis.
ê 385/96
recital 10 (adapted)
(11)     It is expedient to define
the export price and to enumerate the adjustments which Ö should Õ be made in
those cases where a reconstruction of Ö that Õ price from the
first open-market price is deemed necessary.
ê 385/96
recital 11 (adapted)
(12)     For the purpose of ensuring
a fair comparison between Ö the Õ export
price and Ö the Õ normal
value, it is advisable to list the factors, including contractual penalties,
which may affect prices and price comparability.
ê 385/96
recital 12 (adapted)
(13)     It is desirable to Ö provide
for Õ clear and
detailed guidance as to the factors which may be relevant for the determination
of whether the injuriously priced sale has caused material injury or is
threatening to cause injury. In demonstrating that the price level of the sale
concerned is responsible for injury sustained by a Ö Union Õ industry,
attention should be given to the effect of other factors and in particular
prevailing market conditions in the Ö Union Õ .
ê 385/96
recital 13 (adapted)
(14)     It is advisable to define
the term ‘ Ö Union Õ industry’ by
reference to the capability to build a like vessel and to provide that parties
related to exporters may be excluded from such industry, and to define the term
‘related’.
ê 385/96
recital 14 (adapted)
(15)     It is necessary to Ö set
out Õ the procedural
and substantive conditions for lodging a complaint against injurious pricing,
including the extent to which it should be supported by the Ö Union Õ industry, and
the information on the buyer of the vessel, injurious pricing, injury and
causation which such complaint should contain. It is also expedient to specify
the procedures for the rejection of complaints or the initiation of
proceedings.
ê 385/96
recital 15 (adapted)
(16)     When the buyer of the
injuriously priced vessel is established in the territory of another
Contracting Party to the Shipbuilding Agreement, a complaint may also contain a
request that an investigation be initiated by the authorities of that
Contracting Party. Such request Ö should Õ be transmitted
to the authorities of the Contracting Party, where warranted.
ê 385/96
recital 16
(17)     Where appropriate, an
investigation may also be initiated upon a written complaint by the authorities
of a Contracting Party to the Shipbuilding Agreement, in accordance with this
Regulation and under the conditions of the Shipbuilding Agreement.
ê 385/96
recital 17 (adapted)
(18)     It is necessary to Ö specify Õ the manner in
which interested parties should be given notice of the information which the
authorities require. Ö Interested
parties Õ should have
ample opportunity to present all relevant evidence and to defend their
interests. It is also desirable to set out clearly the rules and procedures to
be followed during the investigation, in particular the rules whereby
interested parties are to make themselves known, present their views and submit
information within specified time limits, if such views and information are to
be taken into account. It is also appropriate to set out the conditions under
which an interested party may have access to, and comment on, information
presented by other interested parties. There should also be cooperation between
the Member States and the Commission in the collection of information.
ê 385/96
recital 18
(19)     It is necessary to provide
that the termination of cases should, irrespective of whether an injurious
pricing charge is imposed or not, take place no later than one year from the
date of initiation or the date of delivery of the vessel, as the case may be.
(20)     Investigations or
proceedings should be terminated where the margin of injurious pricing is de
minimis.
ê 385/96
recital 19
(21)     The investigation may be
terminated without the imposition of an injurious pricing charge if the sale of
the injuriously priced vessel is definitively and unconditionally voided or if
an alternative equivalent remedy is accepted. The need to avoid jeopardising
achievement of the aim pursued under this Regulation should, however, be given
special consideration.
ê 385/96
recital 20 (adapted)
(22)     An injurious pricing charge
equal to the amount of the injurious pricing margin Ö should Õ be imposed by
decision on the shipbuilder whose injuriously priced sale of a vessel has
caused injury to the Ö Union Õ industry,
where all the conditions provided for in this Regulation are fulfilled. Precise
and detailed rules should be provided for the implementation of such decision,
including all measures necessary for its actual enforcement, in particular the
taking of countermeasures if the shipbuilder does not pay the injurious pricing
charge within the applicable time limit.
ê 385/96
recital 21 (adapted)
(23)     It is necessary to Ö set
out Õ precise rules for
the denial of the right to load and unload in Ö Union Õ ports to
vessels built by shipbuilders subject to countermeasures.
ê 385/96
recital 22
(24)     The obligation to pay the
injurious pricing charge expires only when such charge is fully paid or at the
end of the period during which the countermeasures are applicable.
ê 385/96
recital 23 (adapted)
(25)     Any action taken under this
Regulation should not be contrary to the Ö Union Õ interest.
ê 385/96
recital 24 (adapted)
(26)     In acting pursuant to this
Regulation, the Ö Union should Õ bear in mind
the need for rapid and effective action.
ê 385/96
recital 26
(27)     It is expedient to provide
for verification visits to check information submitted on injurious pricing and
injury, such visits being, however, conditional on proper replies to
questionnaires being received.
ê 385/96
recital 27
(28)     It is necessary to provide
that, where parties do not cooperate satisfactorily, other information may be
used to establish findings and that such information may be less favourable to
the parties than if they had cooperated.
ê 385/96
recital 28
(29)     Provision should be made
for the treatment of confidential information so that business secrets are not
divulged.
ê 385/96
recital 29 (adapted)
(30)     It is essential that
provision be made for the proper disclosure of the essential facts and considerations
to parties which qualify for such treatment and that such disclosure be made,
with due regard to the decision-making process in the Ö Union Õ , within a
time period which permits parties to defend their interests.
ê 37/2014
Art. 1 and Annex .5 (adapted)
(31)      The implementation of the
procedures provided for in Ö this Õ Regulation
requires uniform conditions for the adoption of measures necessary for its
implementation in accordance with Regulation (EU) No 182/2011 of the
European Parliament and of the Council[9],
ê 385/96
(adapted)
HAVE ADOPTED THIS REGULATION:
Article 1
Principles and definitions
1. An injurious pricing charge may be
imposed on the builder of any injuriously priced vessel whose sale to a buyer
other than a buyer of the country in which the vessel originates causes injury.
2. A vessel is to be considered as being
injuriously priced if the export price of the vessel sold is less than a
comparable price for Ö a Õ like vessel,
in the ordinary course of trade, when sold to a buyer of the exporting country.
3. For the Ö purposes Õ of this
Regulation, Ö the following definitions shall apply: Õ
(a)           ‘vessel’ Ö means Õ any
self-propelled sea-going vessel of 100 gross tonnes and above used for
transportation of goods or persons or for performance of a specialised service
(for example, ice breakers and dredgers) and any tug of 365 kW and over;
(b)           ‘like vessel’ Ö means Õ any vessel of
the same type, purpose and approximate size as the vessel under consideration
and possessing characteristics closely resembling those of the vessel under
consideration;
(c)           ‘same general category of
vessel’ Ö means Õ any vessel of
the same type and purpose, but of a significantly different size;
(d)           ‘sale’ Ö covers Õ the creation
or transfer of an ownership interest in the vessel, except for an ownership
interest created or acquired solely for the purpose of providing security for a
normal commercial loan;
(e)           ‘ownership interest’ Ö includes Õ any contractual
or proprietary interest which allows the beneficiary or beneficiaries of such
interest to take advantage of the operation of the vessel in a manner
substantially comparable to the way in which an owner may benefit from the
operation of the vessel. In determining whether such substantial comparability
exists, the following factors shall be considered, inter alia:
(i)      the terms and circumstances of the
transaction,
(ii)     commercial practice within the
industry,
(iii)    whether the vessel subject to the
transaction is integrated into the operations of the beneficiary or
beneficiaries, and
(iv)    whether in practice there is a
likelihood that the beneficiary or beneficiaries of such interests will take
advantage of, and the risk for, the operation of the vessel for a significant
part of the life-time of the vessel;
(f)           ‘buyer’ Ö means Õ any person
who, or any company which, acquires an ownership interest, including by way of
lease or long-term bareboat charter, in conjunction with the original transfer
from the shipbuilder, either directly or indirectly, including a person who, or
company which, owns or controls a buyer, or gives instructions to the buyer. A
person or company owns a buyer when it has more than a 50 % interest in
the buyer. A person or company controls a buyer when the person or company is
legally or operationally in a position to exercise restraint or direction over
the buyer, which is presumed at a 25 % interest. If ownership of a buyer
is shown, a separate control of it is presumed not to exist unless established
otherwise. There may be more than one buyer of any one vessel;
(g)           ‘company’ Ö means Õ any company or
firm constituted under civil or commercial law, including cooperative
societies, and other legal persons governed by public or private law, including
those which are non-profitmaking;
(h)           ‘Contracting Party’ Ö means Õ any third
country party to the Shipbuilding Agreement.
Article 2
Determination of injurious pricing
A. Normal
value
1. The normal value shall normally be based
on the price paid or payable, in the ordinary course of trade, for a like
vessel by an independent buyer in the exporting country.
2. Prices between parties which appear to
be associated or to have a compensatory arrangement with each other may not be
considered to be in the ordinary course of trade and may not be used to
establish normal value unless it is determined that they are unaffected by the
relationship.
3. When there are no sales of like vessels
in the ordinary course of trade, or where, because of the particular market
situation, such sales do not permit a proper comparison, the normal value of
the like vessel shall be calculated on the basis of the export price of a like
vessel, in the ordinary course of trade, to an appropriate third country,
provided that this price is representative. If such sales to any appropriate
third country do not exist or do not permit a proper comparison, the normal
value of the like vessels shall be calculated on the basis of the cost of
production in the country of origin plus a reasonable amount for selling,
general and administrative costs and for profits.
4. Sales of like vessels in the domestic
market of the exporting country, or export sales to a third country, at prices
below unit production costs (fixed and variable) plus selling, general and
administrative costs may be treated as not being in the ordinary course of
trade by reason of price, and may be disregarded in determining normal value, only
if it is determined that such sales are at prices which do not provide for the
recovery of all costs within a reasonable period, which should normally be five
years.
5. Costs shall normally be calculated on
the basis of records kept by the shipbuilder under investigation, provided that
such records are in accordance with the generally accepted accounting
principles of the country concerned and that it is shown that the records
reasonably reflect the costs associated with the production and sale of the vessel
under consideration.
Consideration shall be given to evidence
submitted on the proper allocation of costs, provided that it is shown that
such allocations have been historically utilised. In the absence of a more
appropriate method, preference shall be given to the allocation of costs on the
basis of turnover. Unless already reflected in the cost allocations under this
subparagraph, costs shall be adjusted appropriately for those non-recurring
items of cost which benefit future and/or current production, or for
circumstances in which costs are affected by start-up operations.
6. The amounts for selling, Ö for Õ general and
administrative costs and for profits shall be based on actual data pertaining
to production and sales, in the ordinary course of trade, of like vessels by
the shipbuilder under investigation. When such amounts cannot be determined on
this basis, the amounts may be determined on the basis of:
(a)          the weighted average of the
actual amounts determined for other shipbuilders of the country of origin in
respect of production and sales of like vessels in that country's domestic
market;
(b)          the actual amounts applicable to
production and sales, in the ordinary course of trade, of the same general
category of vessels for the shipbuilder in question in the domestic market of
the country of origin;
(c)          any other reasonable method,
provided that the amount for profit so established shall not exceed the profit
normally realised by other shipbuilders on sales of vessels of the same general
category in the domestic market of the country of origin.
Furthermore, the profit added in
constructing value shall, in all instances, be based upon the average profit
realised over a reasonable period of time of normally six months both before
and after the sale under investigation and shall reflect a reasonable profit at
the time of such sale. In making such calculation, any distortion which is
demonstrated to result in a profit which is not a reasonable one at the time of
the sale shall be eliminated.
7. Given the long lead time between
contract and delivery of vessels, a normal value shall not include actual costs
for which the shipbuilder demonstrates that they are due to force majeure
and that they are significantly over the cost increase which the shipbuilder
could reasonably have anticipated and taken into account when the material
terms of sales were fixed.
8. In the case of sales from non-market
economy countries and, in particular, those to which Council Regulation (EC) No
625/2009[10]
applies, normal value shall be determined on the basis of the price or
constructed value in a market economy third country, or the price from such a
third country to other countries, including the Ö Union Õ , or, where
those are not possible, on any other reasonable basis, including the price
actually paid or payable in the Ö Union Õ for the like
vessel, duly adjusted if necessary to include a reasonable profit margin.
An appropriate market economy third country
shall be selected in a not unreasonable manner, due account being taken of any
reliable information made available at the time of selection. Account shall
also be taken of time limits.
The parties to the investigation shall be
informed shortly after its initiation of the market economy third country
envisaged and shall be given 10 days to comment.
B. Export
price
9. The export price shall be the price
actually paid or payable for the vessel under consideration.
10. In cases where there is no export price
or where it appears that the export price is unreliable because of an
association or a compensatory arrangement between the shipbuilder and the buyer
or a third party, the export price may be constructed on the basis of the price
at which the vessel is first resold to an independent buyer, or, if the vessel
is not resold to an independent buyer or is not resold in the condition in
which it was originally sold, on any reasonable basis.
In Ö those Õ cases,
adjustment for all costs, including duties and taxes, incurred between the
original sale and resale, and for profits accruing, shall be made so as to
establish a reliable export price.
The items for which adjustment shall be
made Ö shall Õ include those
normally borne by a buyer but paid by any party, either inside or outside the Ö Union Õ , which
appears to be associated or to have a compensatory arrangement with the
shipbuilder or buyer, including usual transport, insurance, handling, loading
and ancillary costs, customs duties, and other taxes payable in the importing
country by reason of the purchase of the vessel, and a reasonable margin for
selling, general and administrative costs and profit.
C.
Comparison
11. A fair comparison shall be made between
the export price and the normal value. This comparison shall be made at the
same level of trade and in respect of sales made at, as Ö closely Õ as possible,
the same time, which will normally mean sales within three months before or
after the sale under investigation, or in the absence of such sales, any
appropriate period. Due allowance shall be made in each case, on its merits,
for differences which affect price comparability, including differences in
conditions and terms of sale, contractual penalties, taxation, level of trade,
quantities, physical characteristics, and any other differences which are also
demonstrated to affect price comparability. Where, in cases referred to in paragraph
10, price comparability has been affected, the normal value shall be
established at a level of trade equivalent to the level of trade of the
constructed export price, or due allowance made, as warranted, under this
paragraph. Any duplication when making adjustments shall be avoided, in
particular in relation to discounts and contractual penalties. When the price
comparison requires a conversion of currencies, such conversion shall be made
using the rate of exchange on the date of sale, except that when a sale of
foreign currency on forward markets is directly linked to the export sale
involved the rate of exchange in the forward sale shall be used. For the
purpose of this provision, the date of sale shall be the date on which the
material terms of sale are established, normally the date of contract. However,
if the material terms of sale are significantly changed on another date, the
rate of exchange on the date of the change should be applied. In such case,
appropriate adjustments shall be made to take into account any unreasonable
effect on the injurious pricing margin due solely to exchange rate fluctuations
between the original date of sale and the date of this change.
D.
Injurious pricing margin
12. Subject to the relevant provisions
governing fair comparison, the existence of injurious pricing margins shall
normally be established on the basis of a comparison of a weighted average
normal value with a weighted average of prices of all sales, or by a comparison
of individual normal values and individual export prices on a
transaction-to-transaction basis. However, a normal value established on a
weighted average basis may be compared to prices of all individual sales, if
there is a Ö significant
difference in the Õ pattern of
export prices among different purchasers, regions or time periods, and if the
methods specified in the first sentence of this paragraph would not reflect the
full degree of injurious pricing being practised.
13. The injurious pricing margin shall be
the amount by which the normal value exceeds the export price. Where injurious
pricing margins vary, a weighted average injurious pricing margin may be
established.
Article 3
Determination of injury
1. Pursuant to this Regulation, the term
‘injury’ shall, unless otherwise specified, be taken to mean material injury to
the Ö Union Õ industry,
threat of material injury to the Ö Union Õ industry or
material retardation of the establishment of such an industry and shall be
interpreted in accordance with the provisions of this Article.
2. A determination of injury shall be based
on positive evidence and shall involve an objective examination of : 
(a)          the effect of the sale at less
than normal value on prices in the Ö Union Õ market for
like vessels; and
(b)          the consequent impact of that
sale on the Ö Union Õ industry.
3. With regard to the effect of the sale at
less than normal value on prices, consideration shall be given to whether there
has been significant price undercutting by the sale at less than normal value
as compared with the price of like vessels of the Ö Union Õ industry, or
whether the effect of such sale is otherwise to depress prices to a significant
degree or prevent price increases, which would otherwise have occurred, to a
significant degree. No one or more of Ö those Õ factors can
necessarily give decisive guidance.
4. Where
sales of vessels from more than one country are simultaneously subject to
injurious pricing investigations, the effects of such sales shall be
cumulatively assessed only if it is determined that:
(a)          the margin of injurious pricing
established in relation to the purchases from each country is more than de
minimis as defined in Article 7(3); and 
(b)          a cumulative assessment of the
effects of the sales is appropriate in the light of the conditions of
competition between vessels sold by Ö non‑Union Õ shipbuilders
to the buyer and the conditions of competition between such vessels and the
like Ö Union Õ vessels.
5. The examination of the impact of the
sale at less than normal value on the Ö Union Õ industry
concerned shall include an evaluation of all relevant economic factors and
indices having a bearing on the state of the industry, including the fact that
an industry is still in the process of recovering from the effects of past
dumping, injurious pricing or subsidisation, the magnitude of the actual margin
of injurious pricing, actual and potential decline in sales, profits, output,
market share, productivity, return on investments, utilisation of capactiy,
factors affecting Ö Union Õ prices, actual
and potential negative effects on cash flow, inventories, employment, wages,
growth, ability ro raise capital or investments. This list is not exhaustive,
nor can any one or more of these factors necessarily give decisive guidance.
6. It must be demonstrated, from all the
relevant evidence presented in relation to paragraph 2, that the sale at less
than normal value is causing, or has caused, injury within the meaning of this
Regulation. Specifically, Ö that Õ shall entail a
demonstration that the price levels identified pursuant to paragraph 3 are
responsible for an impact on the Ö Union Õ industry as
provided for in paragraph 5, and that Ö that Õ impact exists
to a degree which enables it to be classified as material.
7. Known factors other than the sale at
less than normal value which at the same time are injuring the Ö Union Õ industry shall
also be examined to ensure that injury caused by Ö those Õ other factors
is not attributed to the sale at less than normal value under paragraph 6.
Factors which may be considered in Ö that Õ respect Ö shall Õ include the
volume and prices of sales by shipbuilders of countries other than the
exporting country not realised at less than normal value, contraction in demand
or changes in the patterns of consumption, restrictive trade practices of, and
competition between, third country and Ö Union Õ producers,
developments in technology and the export performance and productivity of the Ö Union Õ industry.
8. The effect of the sale at less than
normal value shall be assessed in relation to the production of the Ö Union Õ industry of
like vessels when available data permit the separate identification of that
production on the basis of such criteria as the production process, producers'
sales and profits. If such separate identification of that production is not
possible, the effects of the sale at less than normal value shall be assessed
by examination of the production of the narrowest group or range of vessels,
which includes the like vessel, for which the necessary information can be
provided.
9. A determination of a threat of material
injury shall be based on facts and not merely on allegation, conjecture or
remote possibility. The change in circumstances which would create a situation
in which the sale at less than normal value would cause injury must be clearly
foreseen and imminent.
In making a
determination regarding the existence of a threat of material injury,
consideration should be given to such factors as:
(a)          sufficient freely disposable
capacity of the shipbuilder or an imminent and substantial increase in such
capacity indicating the likelihood of substantially increased sales at less
than normal value, account being taken of the availability of other export
markets to absorb any additional exports; 
(b)          whether vessels are being
exported at prices that would, to a significant degree, depress prices or
prevent price increases which otherwise would have occurred, and would probably
increase demand for further purchases from other countries.
No one of the factors listed above by
itself can necessarily give decisive guidance, but the totality of the factors
considered must lead to the conclusion that further sales at less than normal
value are imminent and that, unless protective action is taken, material injury
will occur.
Article 4
Definition of Ö Union Õ industry
1. For the purposes of this Regulation, the
term ‘ Ö Union Õ industry’
shall be interpreted as referring to the Ö Union Õ producers as a
whole capable of producing a like vessel with their present facilities or whose
facilities can be adapted in a timely manner to produce a like vessel, or to
those of them whose collective capability to produce a like vessel constitutes
a major proportion, as defined in Article 5(6), of the total Ö Union Õ capability to
produce a like vessel. However, when producers are related to the shipbuilder,
exporters or buyers or are themselves buyers of the allegedly injuriously
priced vessel, the term ‘the Ö Union Õ industry’ may
be interpreted as referring to the rest of the producers.
2. For the purpose of paragraph 1,
producers shall be considered to be related to the shipbuilder, exporters or
buyers only if:
(a)          one of them directly or
indirectly controls the other; or
(b)          both of them are directly or
indirectly controlled by a third person; or
(c)          together they directly or indirectly
control a third person, provided that there are grounds for believing or
suspecting that the effect of the relationship is such as to cause the producer
concerned to behave differently from non-related producers.
For the purpose of this paragraph, one shall
be deemed to control another when the former is legally or operationally in a
position to exercise restraint or direction over the latter.
3. The provisions of Article 3(8) shall be
applicable to this Article.
Article 5
Initiation of proceedings
1. Except as provided for in paragraph 8,
an investigation to determine the existence, degree and effect of any alleged
injurious pricing shall be initiated upon a written complaint by any natural or
legal person, or any association not having legal personality, acting on behalf
of the Ö Union Õ industry.
The complaint may be submitted to the
Commission or to a Member State, which shall forward it to the Commission. The
Commission shall send Member States a copy of any complaint it receives. The
complaint shall be deemed to have been lodged on the first working day
following its delivery to the Commission by registered mail or the issuing of
an acknowledgement of receipt by the Commission.
Where, in the absence of any complaint, a Member State is in possession of sufficient evidence of injurious pricing and of resultant
injury to the Ö Union Õ industry, it
shall immediately communicate such evidence to the Commission.
2. A complaint under paragraph 1 shall be
filed no later than:
(a)          six months from the time that the
complainant knew, or should have known, of the sale of the vessel, Ö when: Õ
i)        the complainant was invited to
tender a bid on the contract at issue through a broad multiple bid or any other
bidding process;
ii)       the complainant actually did so
tender a bid; and
iii)      the bid of the complainant
substantially met bid specifications;
(b)          nine months from the time that
the complainant knew, or should have known, of the sale of the vessel in the
absence of an invitation to tender, provided that a notice of intent to apply,
including information reasonably available to the complainant to identify the
transaction concerned, had been submitted no later than six months from that
time to the Commission or a Member State.
In no event shall a complaint be filed
later than six months from the date of delivery of the vessel.
The complainant may be considered to have
known of the sale of a vessel from the time of publication of the fact of the
conclusion of the contract, along with very general information concerning the
vessel, in the international trade press.
For the purpose of this Article, a broad
multiple bid shall be interpreted to mean a bid in which the proposed buyer
extends an invitation to bid to at least all the shipbuilders known to the
buyer to be capable of building the vessel in question.
3. A complaint under paragraph 1 shall
include evidence:
(a)          of injurious pricing;
(b)          of injury;
(c)          of a causal link between the injuriously
priced sale and the alleged injury; and
(d)          (i)      that, if the
vessel was sold through a broad multiple bid, the complainant was invited to
tender a bid on the contract at issue, it actually did so, and the bid of the
complainant substantially met bid specifications (Ö namely Õ, delivery date
and technical requirements); or
(ii)     that, if the vessel was sold through
any other bidding process and the complainant was invited to tender a bid on
the contract at issue, it actually did so, and the bid of the complainant
substantially met bid specifications; or
(iii)    that, in the absence of an invitation
to tender a bid other than under a broad multiple bid, the complainant was
capable of building the vessel concerned and, if the complainant knew, or
should have known, of the proposed purchase, it made demonstrable efforts to
conclude a sale with the buyer consistent with the bid specifications in
question. The complainant may be considered to have known of the proposed
purchase if it is demonstrated that the majority of the relevant industry has
made efforts with that buyer to conclude a sale of the vessel in question, or
if it is demonstrated that general information on the proposed purchase was
available from brokers, financiers, classification societies, charterers, trade
associations, or other entities normally involved in shipbuilding transactions
with whom the complainant had regular contacts or dealings.
4. The complaint shall contain such
information as is reasonably available to the complainant on the following:
(a)          Ö the Õ identity of
the complainant and a description of the volume and value of the Ö Union Õ production of
the like vessel by the complainant. Where a written complaint is made on behalf
of the Ö Union Õ industry, the
complaint shall identify the industry on behalf of which the complaint is made
by a list of all known Ö Union Õ producers
capable of building the like vessel and, to the extent possible, a description
of the volume and value of Ö Union Õ production of
the like vessel accounted for by such producers;
(b)          a complete description of the
allegedly injuriously priced vessel, the names of the country or countries of
origin or export in question, the identity of each known exporter or foreign
producer and the identity of the buyer of the vessel in question;
(c)          Ö the Õ prices at
which such vessels are sold in the domestic markets of the country or countries
of origin or export (or, where appropriate, the prices at which such vessel is
sold from the country or countries of origin or export to a third country or
countries or on the constructed value of the vessel) and Ö the Õ export prices
or, where appropriate, the prices at which such vessel is first resold to an
independent buyer;
(d)          the effect of the injuriously
priced sale on prices of the like vessel on the Ö Union Õ market and the
consequent impact of the sale on the Ö Union Õ industry, as
demonstrated by relevant factors and indices having a bearing on the state of
the Ö Union Õ industry, such
as those listed in Article 3(3) and (5).
5. The Commission shall, as far as
possible, examine the accuracy and adequacy of the evidence provided in the
complaint, to determine whether there is sufficient evidence to justify the
initiation of an investigation.
6. An investigation shall not be initiated
pursuant to paragraph 1 unless it has been determined, on the basis of an
examination as to the degree of support for, or opposition to, the complaint
expressed by Ö Union Õ producers
capable of building the like vessel, that the complaint has been made by or on
behalf of the Ö Union Õ industry. The
complaint shall be considered to have been made by or on behalf of the Ö Union Õ industry if it
is supported by those Ö Union Õ producers
whose collective capacity to produce the like vessel constitutes more than 50 %
of the total capacity of that portion of the Ö Union Õ industry
expressing either support for or opposition to the complaint. However, no
investigation shall be initiated when Ö Union Õ producers
expressly supporting the complaint account for less than 25 % of
total capacity of the Ö Union Õ producers
capable of producing the like vessel.
7. The authorities shall avoid, unless a
decision has been made to initiate an investigation, any publicising of the
complaint seeking the initiation of an investigation. However, before
proceeding to initiate an investigation, the government of the exporting
country concerned shall be notified.
8. If, in special circumstances, Ö the
Commission decides Õ to initiate an
investigation without having received a written complaint by or on behalf of
the Ö Union Õ industry for
the initiation of such investigation, this shall be done on the basis of
sufficient evidence of injurious pricing, injury, a causal link, and that a
member of the allegedly injured Ö Union Õ industry met
the criteria of paragraph 3 (d), to justify such initiation.
Where appropriate, an investigation may
also be initiated upon a written complaint by the authorities of a Contracting
Party. Such a complaint shall be supported by sufficient evidence to show that
a vessel is being, or has been, injuriously priced and that the alleged sale to
a Ö Union Õ buyer at less
than normal value is causing, or has caused, injury to the domestic industry of
the Contracting Party concerned.
9. The evidence of both injurious pricing
and injury shall be considered simultaneously in the decision on whether or not
to initiate an investigation. A complaint shall be rejected where there is
insufficient evidence of either injurious pricing or of injury to justify
proceeding with the case.
10. The complaint may be withdrawn prior to
initiation, in which case it shall be considered not to have been lodged.
ê 37/2014
Art. 1 and Annex .5(1) (adapted)
11. Where it is apparent that there is
sufficient evidence to justify initiating proceedings, Ö the
Commission Õ shall do so
within 45 days of the date on which the complaint was lodged, or, in the case
of initiation pursuant to paragraph 8, no later than six months from the time
the sale of the vessel was known or should have been known, and shall publish a
notice in the Official Journal of the European Union. Where insufficient
evidence has been presented, the complainant shall be so informed within 45
days of the date on which the complaint Ö is Õ lodged with
the Commission. The Commission shall provide information to the Member States
once it has determined the need to initiate such proceedings.
ê 385/96
(adapted)
12. The notice of initiation of the
proceedings shall announce the initiation of an investigation, indicate the
name and country of the shipbuilder and the buyer(s) and a description of the
vessel concerned, give a summary of the information received, and provide that
all relevant information is to be communicated to the Commission.
It shall state the periods within which
interested parties may make themselves known, present their views in writing
and submit information if such views and information are to be taken into
account during the investigation. It shall also state the period within which
interested parties may apply to be heard by the Commission in accordance with
Article 6(5).
13. The Commission shall advise the
exporter, the buyer(s) of the vessel and representative associations of
producers, exporters or buyers of such vessels known to it to be concerned, as
well as representatives of the country the vessel of which is subject to such
investigation and the complainants, of the initiation of the proceedings and,
with due regard to the protection of confidential information, provide the full
text of the written complaint received pursuant to paragraph 1 to the exporter,
and to the authorities of the exporting country, and make it available upon
request to other interested parties involved.
Article 6
The investigation
1. Following the initiation of the
proceedings, the Commission, acting in cooperation with the Member States and,
where appropriate, with the authorities of third countries, shall commence an
investigation at Ö Union Õ level. Such
investigation shall cover both injurious pricing and injury and these shall be
investigated simultaneously.
2. Parties receiving questionnaires used in
an injurious pricing investigation shall be given at least 30 days to reply.
The time-limit for exporters shall be counted from the date of receipt of the
questionnaire, which for this purpose shall be deemed to have been received one
week from the day on which it was sent to the exporter or transmitted to the
appropriate diplomatic representative of the exporting country. An extension to
the 30-day period may be granted, due account being taken of the time limits of
the investigation, provided that the party shows due cause for such extension,
in terms of its particular circumstances.
3. The Commission may request the
authorities of third countries, where appropriate, as well as the Member
States, to supply information, and Member States shall take whatever steps are
necessary in order to give effect to such requests.
They shall send to the Commission the
information requested together with the results of all inspections, checks or
investigations carried out.
Where Ö that Õ information is
of general interest or where its transmission has been requested by a Member State, the Commission shall forward it to the Member States, provided it is not
confidential, in which case a non-confidential summary shall be forwarded.
4. The Commission may request the
authorities of third countries, where appropriate, as well as the Member
States, to carry out all necessary checks and inspections, particularly amongst
Ö Union Õ producers, and
to carry out investigations in third countries, provided that the firms
concerned give their consent and that the government of the country in question
has been officially notified and raises no objection.
Member States shall take whatever steps are
necessary in order to give effect to such requests from the Commission.
Officials of the Commission shall be
authorised, if the Commission or a Member State so requests, to assist the
officials of Member States in carrying out their duties. Likewise, officials of
the Commission may assist the officials of the authorities of third countries
in carrying out their duties, upon agreement between the Commission and such
authorities.
5. The interested parties which have made
themselves known in accordance with Article 5(12) shall be heard if they
have, within the period prescribed in the notice published in the Official
Journal of the European Ö Union Õ , made a
written request for a hearing showing that they are an interested party likely
to be affected by the result of the proceedings and that there are particular
reasons why they should be heard.
6. Opportunities shall, on request, be
provided for the shipbuilder, the buyer(s), representatives of the government
of the exporting country, the complainants, and other interested parties, which
have made themselves known in accordance with Article 5(12), to meet those
parties with adverse interests, so that opposing views may be presented and
rebuttal arguments offered.
Provision of such opportunities must take
account of the need to preserve confidentiality and of the convenience to the
parties.
There shall be no obligation on any party
to attend a meeting, and failure to do so shall not be prejudicial to that
party's case.
Oral information provided under this
paragraph shall be taken into account insofar as it is subsequently confirmed
in writing.
7. The complainants, the shipbuilder, the
buyer(s) and other interested parties, which have made themselves known in
accordance with Article 5(12), as well as the representatives of the exporting
country, may, upon written request, inspect all information made available by
any party to an investigation, as distinct from internal documents prepared by
the authorities of the Ö Union Õ or its Member
States, which is relevant to the presentation of their cases and not
confidential within the meaning of Article 13, and is used in the
investigation.
Such parties may respond to such
information and their comments shall be taken into consideration, wherever they
are sufficiently substantiated in the response.
8. Except in the circumstances provided for
in Article 12, the information which is supplied by interested parties and upon
which findings are based shall be examined for accuracy as far as possible.
9. For proceedings involving price to price
comparison, where a like vessel has been delivered, the investigation shall be
concluded no later than one year from the date of initiation.
For proceedings in which the like vessel is
under construction, the investigation shall be concluded no later than one year
from the date of delivery of that like vessel.
Investigations involving constructed value
shall be concluded within one year of their initiation or within one year of
delivery of the vessel, whichever is the later.
Ö Those Õ time limits
are suspended to the extent that Article 16(2) is applied.
Article 7
Termination without measures,
imposition and collection of injurious pricing charges
1. Where the complaint is withdrawn, the
proceedings may be terminated.
ê 37/2014
Art. 1 and Annex .5(2)
2. Where measures are unnecessary the
investigation or proceedings shall be terminated. The Commission shall
terminate the investigation in accordance with the examination procedure
referred to in Article 10(2).
ê 385/96
3. There shall be immediate termination
where it is determined that the margin of injurious pricing is less than 2 %,
expressed as a percentage of the export price.
ê 37/2014
Art. 1 and Annex .5(2) (adapted)
4. Where the facts as finally established
show that there is injurious pricing and injury caused thereby, an injurious
pricing charge shall be imposed on the shipbuilder by the Commission Ö acting Õ in accordance
with the examination procedure referred to in Article 10(2). The amount of the
injurious pricing charge shall be equal to the margin of injurious pricing
established. The Commission shall, after having informed the Member States,
take the necessary measures for the implementation of its decision, in
particular the collection of the injurious pricing charge.
ê 385/96
(adapted)
5. The shipbuilder shall pay the injurious
pricing charge within 180 days of notification to it of the imposition of the
charge, which for this purpose shall be deemed to have been received one week
from the day on which it was sent to the shipbuilder. The Commission may give
the shipbuilder a reasonably extended period of time to pay where the
shipbuilder demonstrates that payment within 180 days would render it insolvent
or would be incompatible with a judicially supervised reorganisation, in which
case interest shall accrue on any unpaid portion of the charge, at a rate equal
to the secondary market yield on medium term Ö euro Õ bond in the
Luxembourg stock exchange plus 50 basis points.
Article 8
Alternative remedies
ê 37/2014
Art. 1 and Annex .5(3)
The investigation may be terminated without
the imposition of an injurious pricing charge if the shipbuilder definitively
and unconditionally voids the sale of the injuriously priced vessel or complies
with an alternative equivalent remedy accepted by the Commission.
ê 385/96
A sale shall be considered to have been
voided only where all contractual relationships between the parties concerned
by the sale in question have been terminated, all consideration paid in
connection with the sale is reimbursed and all rights in the vessel concerned
or parts thereof are returned to the shipbuilder.
Article 9
Countermeasures — denial of loading
and unloading rights
ê 37/2014
Art. 1 and Annex .5(4)
1. If the shipbuilder concerned does not
pay the injurious pricing charge imposed under Article 7, countermeasures under
the form of denial of loading and unloading rights shall be imposed by the
Commission on the vessels built by the shipbuilder in question.
The Commission shall provide information to
the Member States once the grounds for countermeasures referred to in the first
subparagraph arise.
ê 385/96
(adapted)
2. The decision imposing the
countermeasures shall enter into force 30 days after its publication in the Official
Journal of the European Ö Union Õ and
shall be repealed on full payment of the injurious pricing charge by the
shipbuilder. The countermeasure shall cover all vessels contracted for during a
period of four years from the date of entry into force of the decision. Each
vessel shall be subject to the countermeasure for a period of four years after
its delivery. Such periods may be reduced only following and in accordance with
the outcome of an international dispute settlement procedure concerning the
countermeasures imposed.
The vessels subject to the denial of
loading and unloading rights shall be specified by decision to be adopted by
the Commission and published in the Official Journal of the European Ö Union Õ .
3. The Member States' customs authorities
shall not grant permission to load or unload to vessels subject to the denial
of loading and unloading rights.
ê 37/2014
Art. 1 and Annex .5(5)
Article 10
Committee procedure
1. The Commission shall be assisted by the
Committee established by [Regulation (EC) No 1225/2009]. That Committee
shall be a committee within the meaning of Regulation (EU) No 182/2011.
2. Where reference is made to this
paragraph, Article 5 of Regulation (EU) No 182/2011 shall apply.
ê 385/96
(adapted)
Article 11
Verification visits
1. The Commission shall, where it considers
it appropriate, carry out visits to examine the records of exporters,
shipbuilders, traders, agents, producers, trade associations and organisations,
to verify information provided on injurious pricing and injury. In the absence
of a proper and timely reply, a verification visit may not be carried out.
2. The Commission may carry out
investigations in third countries as required, provided Ö that Õ it obtains the
agreement of the firms concerned, that it notifies the representatives of the
government of the country in question and that the latter does not object to
the investigation. As soon as the agreement of the firms concerned has been obtained
the Commission Ö shall Õ notify the
authorities of the exporting country of the names and addresses of the firms to
be visited and the dates agreed.
3. The firms concerned shall be advised of
the nature of the information to be verified during verification visits and of
any further information which needs to be provided during such visits, though
this should not preclude requests made during the verification of further
details to be provided in the light of information obtained.
4. In investigations carried out under
paragraphs 1, 2 and 3, the Commission shall be assisted by officials of those
Member States who so request.
Article 12
Non-cooperation
1. In cases in which any interested party
refuses access to, or otherwise does not provide, necessary information within
the time limits provided in this Regulation, or significantly impedes the
investigation, provisional or final findings, affirmative or negative, may be
made on the basis of the facts available.
Where it is found that any interested party
has supplied false or misleading information, the information shall be
disregarded and use may be made of facts available.
Interested parties should be made aware of
the consequences of non-cooperation.
2. Failure to give a computerised response
shall not be deemed to constitute non-cooperation, provided that the interested
party shows Ö that Õ presenting the
response as requested would result in an unreasonable extra burden or
unreasonable additional cost.
3. Where the information submitted by an
interested party is not ideal in all respects it should nevertheless not be
disregarded, provided that any deficiencies are not such as to cause undue
difficulty in arriving at a reasonably accurate finding and that the
information is appropriately submitted in good time and is verifiable, and that
the party has acted to the best of its ability.
4. If evidence or information is not
accepted, the supplying party shall be informed forthwith of the reasons
therefor and shall be granted an opportunity to provide further explanations
within the time limit specified. If the explanations are considered
unsatisfactory, the reasons for rejection of such evidence or information shall
be disclosed and given in published findings.
5. If determinations, including those
regarding normal value, are based on the provisions of paragraph 1, including
the information supplied in the complaint, it shall, where practicable and with
due regard to the time limits of the investigation, be checked by reference to
information from other independent sources which may be available, such as
published price lists, official statistics of sales and customs returns, or
information obtained from other interested parties during the investigation.
6. If an interested party does not
cooperate, or cooperates only partially, so that relevant information is
thereby withheld, the result may be less favourable to the party than if it had
cooperated.
Article 13
Confidentiality
1. Any information which is by nature
confidential (for example, because its disclosure would be of significant
competitive advantage to a competitor or would have a significantly adverse
effect upon a person supplying the information or upon a person from whom he
has acquired the information) or which is provided on a confidential basis by
parties to an investigation shall, if good cause is shown, be treated as such
by the authorities.
2. Interested parties providing
confidential information shall be required to Ö provide Õ non-confidential
summaries thereof. Those summaries shall be in sufficient detail to permit a
reasonable understanding of the substance of the information submitted in
confidence. In exceptional circumstances, such parties may indicate that such
information is not susceptible of summary. In such exceptional circumstances, a
statement of the reasons why summarisation is not possible must be provided.
3. If it is considered that a request for
confidentiality is not warranted and if the supplier of the information is
either unwilling to make the information available or to authorise its
disclosure in generalised or summary form, such information may be disregarded
unless it can be satisfactorily demonstrated from appropriate sources that the
information is correct. Requests for confidentiality shall not be arbitrarily
rejected.
4. This Article shall not preclude the
disclosure of general information by the Ö Union Õ authorities,
and in particular of the reasons on which decisions taken pursuant to this
Regulation are based, or disclosure of the evidence relied on by the Ö Union Õ authorities
insofar as is 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.
ê 37/2014
Art. 1 and Annex .5(6)
5. The Commission and the Member States, including the officials of either, shall not reveal any information received
pursuant to this Regulation for which confidential treatment has been requested
by its supplier, without specific permission from that supplier. Exchanges of
information between the Commission and Member States, or any internal documents
prepared by the authorities of the Union or the Member States, shall not be
divulged except as specifically provided for in this Regulation.
ê 385/96
(adapted)
6. Information received pursuant to this
Regulation shall be used only for the purpose for which it was requested.
Article 14
Disclosure
1. The complainants, the shipbuilder, the
exporter, the buyer(s) of the vessel and their representative associations, and
representatives of the exporting country, may request disclosure of the details
underlying the essential facts and considerations Ö on Õ the basis of
which it is intended to recommend the imposition of an injurious pricing
charge, or the termination of an investigation or proceedings without the
imposition of a charge.
2. Requests for final disclosure, as
defined in paragraph 1, shall be addressed to the Commission in writing and be
received within time limits set by the Commission.
ê 37/2014
Art. 1 and Annex .5(7) (adapted)
3. Ö Final Õ disclosure
shall be Ö given Õ in writing. It
shall be Ö made Õ , due regard
being had to the need to protect confidential information, as soon as possible
and, normally, not less than one month before a definitive decision. Where the
Commission is not in a position to disclose certain facts or considerations at
that time, they shall be disclosed as soon as possible thereafter.
Disclosure shall not prejudice any
subsequent decision which may be taken by the Commission, but where such a
decision is based on any different facts and considerations they shall be
disclosed as soon as possible.
ê 385/96
4. Representations made after disclosure is
given shall be taken into consideration only if received within a period to be
set by the Commission in each case, which shall be at least 10 days, due
consideration being given to the urgency of the matter.
ê 37/2014
Art. 1 and Annex .5(8)
Article 15
Report
The Commission shall include information on
the implementation of this Regulation in its annual report on the application
and implementation of trade defence measures presented to the European
Parliament and to the Council pursuant to [Article 22a of Regulation (EC)
No 1225/2009].
ê 385/96
(adapted)
Article 16
Final provisions
1. This Regulation shall not preclude the
application of:
(a)          any special rules laid down in
agreements concluded between the Ö Union Õ and third
countries;
(b)          special measures, provided that
such action does not run counter to obligations pursuant to the Shipbuilding
Agreement.
2. An investigation pursuant to this
Regulation shall not be carried out nor measures be imposed or maintained when
such measures would be contrary to the Ö Union’s Õ obligations
emanating from the Shipbuilding Agreement or any other relevant international
agreement.
This Regulation shall not prevent the Ö Union Õ from
fulfilling its obligations under the provisions of the Shipbuilding Agreement
concerning dispute settlement.
ê 
Article 17
Repeal 
Regulation (EC)
No 385/96 is repealed.
References to the repealed Regulation shall
be construed as references to this Regulation and shall be read in accordance
with the correlation table in Annex II.
ê 385/96
(adapted)
Article 18
Entry into force
This Regulation shall enter into force on
the Ö twentieth Õ day following that
of its publication in the Official Journal of the European Ö Union Õ .
It shall apply from the date of entry into
force of the Shipbuilding Agreement[11].
It shall not apply to vessels contracted
for before the date of entry into force of the Shipbuilding Agreement, except
for vessels contracted for after 21 December 1994 and for delivery more than
five years from the date of the contract. Such vessels shall be subject to this
Regulation, unless the shipbuilder demonstrates that the extended delivery date
was for normal commercial reasons and not to avoid the application of this
Regulation.
This Regulation shall be binding
in its entirety and directly applicable in all Member States.
Done at Brussels,
For the European Parliament                        For
the Council
The President                                                 The
President
[1]               COM(87) 868 PV.
[2]               See Annex 3 to Part A of the Conclusions.
[3]               Entered in the legislative programme for 2014.
[4]               See Annex I to this proposal.
[5]               OJ C […], […], p. […].
[6]               Council Regulation (EC) No 385/96 of 29 January
1996 on protection against injurious pricing of vessels (OJ L 56, 6.3.1996, p.
21).
[7]               See Annex I.
[8]               Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (OJ L 343, 22.12.2009, p. 51).
[9]               Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission's exercise of implementing powers (OJ L 55, 28.2.2011, p. 13).
[10]             Council Regulation (EC) No 625/2009 of 7 July 2009 on common rules for imports from certain third countries (OJ L 185, 17.7.2009, p. 1).
[11]             The date of entry into force of the Shipbuilding
Agreement will be published in the Official Journal of the European Ö Union Õ, L series.
é
ANNEX I
Repealed
Regulation with the amendment thereto
 Council Regulation (EC) No 385/96 (OJ L 56, 6.3.1996, p. 21) ||   || 
 || Regulation (EU) No 37/2014 of the European Parliament and of the Council (OJ L 18, 21.1.2014, p. 1) || Only point 5 of the Annex 
_____________
ANNEX II
Correlation Table
 Regulation (EC) No 385/96 || This Regulation 
 Articles 1 to 4 || Articles 1 to 4 
 Article 5(1) || Article 5(1) 
 Article 5(2), first subparagraph, introductory wording || Article 5(2), first subparagraph, introductory wording 
 Article 5(2), first subparagraph, point (a), introductory wording || Article 5(2), first subparagraph, point (a), introductory wording 
 Article 5(2), first subparagraph, point (a), first indent || Article 5(2), first subparagraph, point (a)(i) 
 Article 5(2), first subparagraph, point (a), second indent || Article 5(2), first subparagraph, point (a)(ii) 
 Article 5(2), first subparagraph, point (a), third indent || Article 5(2), first subparagraph, point (a)(iii) 
 Article 5(2), second, third and fourth subparagraph || Article 5(2), second, third and fourth subparagraph 
 Article 5(3) to (10) || Article 5(3) to (10) 
 Article 5(11), first subparagraph || Article 5(11), first and second sentence 
 Article 5(11), second subparagraph || Article 5(11), third sentence 
 Article 5(12), first sentence || Article 5(12), first subparagraph 
 Article 5(12), second and third sentence || Article 5(12), second subparagraph 
 Article 6(1) and (2) || Article 6(1) and (2) 
 Article 6(3), first sentence || Article 6(3), first subparagraph 
 Article 6(3), second sentence || Article 6(3), second subparagraph 
 Article 6(3), third sentence || Article 6(3), third subparagraph 
 Article 6(4), first sentence || Article 6(4), first subparagraph 
 Article 6(4), second sentence || Article 6(4), second subparagraph 
 Article 6(4), third and fourth sentence || Article 6(4), third subparagraph 
 Article 6(5) || Article 6(5) 
 Article 6(6), first sentence || Article 6(6), first subparagraph 
 Article 6(6), second sentence || Article 6(6), second subparagraph 
 Article 6(6), third sentence || Article 6(6), third subparagraph 
 Article 6(6), fourth sentence || Article 6(6), fourth subparagraph 
 Article 6(7), first sentence || Article 6(7), first subparagraph 
 Article 6(7), second sentence || Article 6(7), second subparagraph 
 Article 6(8) and (9) || Article 6(8) and (9) 
 Articles 7 to 11 || Articles 7 to 11 
 Article 12(1), first sentence || Article 12(1), first subparagraph 
 Article 12(1), second sentence || Article 12(1), second subparagraph 
 Article 12(1), third sentence || Article 12(1), third subparagraph 
 Article 12(2) to (6) || Article 12(2) to (6) 
 Article 13 || Article 13 
 Article 14(1) and (2) || Article 14(1) and (2) 
 Article 14(3), first, second and third sentence || Article 14(3), first subparagraph 
 Article 14(3), fourth sentence || Article 14(3), second subparagraph 
 Article 14(4) || Article 14(4) 
 Article 14a || Article 15 
 Article 15 || Article 16 
 - || Article 17 
 Article 16 || Article 18 
 - || Annex I 
 - || Annex II 
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