Article 1 Aims
This Regulation establishes Community procedures in the field of the common commercial policy in order to ensure the exercise of the Community's rights under international trade rules, in particular those established under the auspices of the World Trade Organization which, subject to compliance with existing international obligations and procedures, are aimed at: (a) responding to obstacles to trade that have an effect on the market of the Community, with a view to removing the injury resulting therefrom; (b) responding to obstacles to trade that have an effect on the market of a third country, with a view to removing the adverse trade effects resulting therefrom. These procedures shall be applied in particular to the initiation and subsequent conduct and termination of international dispute settlement procedures in the area of common commercial policy.
Article 2 Definitions
1. For the purposes of this Regulation, ‘obstacles to trade’ shall be any trade practice adopted or maintained by a third country in respect of which international trade rules establish a right of action. Such a right of action exists when international trade rules either prohibit a practice outright, or give another party affected by the practice a right to seek elimination of the effect of the practice in question. 2. For the purposes of this Regulation and subject to paragraph 8, ‘the Community's rights’ shall be those international trade rights of which it may avail itself under international trade rules. In this context, ‘international trade rules’ are primarily those established under the auspices of the WTO and laid down in the Annexes to the WTO Agreement, but they can also be those laid down in any other agreement to which the Community is a party and which sets out rules applicable to trade between the Community and third countries. 3. For the purposes of this Regulation, ‘injury’ shall be any material injury which an obstacle to trade causes or threatens to cause, in respect of a product or service, to a Community industry on the market of the Community. 4. For the purposes of this Regulation, ‘adverse trade effects’ shall be those which an obstacle to trade causes or threatens to cause, in respect of a product or service, to Community enterprises on the market of any third country, and which have a material impact on the economy of the Community or of a region of the Community, or on a sector of economic activity therein. The fact that the complainant suffers from such adverse effects shall not be considered sufficient to justify, on its own, that the Community institutions proceed with any action. 5. The term ‘Community industry’ shall be taken to mean all Community producers or providers, respectively: — of products or services identical or similar to the product or service which is the subject of an obstacle to trade, or — of products or services competing directly with that product or service, or — who are consumers or processors of the product or consumers or users of the service which is the subject of an obstacle to trade, or all those producers or providers whose combined output constitutes a major proportion of total Community production of the products or services in question; however: (a) when producers or providers are related to the exporters or importers or are themselves importers of the product or service alleged to be the subject of obstacles to trade, the term ‘Community industry’ may be interpreted as referring to the rest of the producers or providers; (b) in particular circumstances, the producers or providers within a region of the Community may be regarded as the Community industry if their collective output constitutes the major proportion of the output of the product or service in question in the Member State or Member States within which the region is located provided that the effect of the obstacle to trade is concentrated in that Member State or those Member States. 6. The term ‘Community enterprise’ shall be taken to mean a company or firm formed in accordance with the law of a Member State and having its registered office, central administration or principal place of business within the Community, directly concerned by the production of goods or the provision of services which are the subject of the obstacle to trade. 7. For the purposes of this Regulation, the notion of ‘providers of services’ in the context of both the term ‘Community industry’ as defined in paragraph 5, and the term ‘Community enterprises’ as defined in paragraph 6, is without prejudice to the non-commercial nature which the provision of any particular service may have according to the legislation or regulation of a Member State. 8. For the purposes of this Regulation, the term ‘services’ shall be taken to mean those services in respect of which international agreements can be concluded by the Community on the basis of Article 113 of the Treaty.
Article 3 Complaint on behalf of the Community industry
1. Any natural or legal person, or any association not having legal personality, acting on behalf of a Community industry which considers that it has suffered injury as a result of obstacles to trade that have an effect on the market of the Community may lodge a written complaint. 2. The complaint must contain sufficient evidence of the existence of the obstacles to trade and of the injury resulting therefrom. Evidence of injury must be given on the basis of the illustrative list of factors indicated in Article 10, where applicable.
Article 4 Complaint on behalf of Community enterprises
1. Any Community enterprise, or any association, having or not legal personality, acting on behalf of one or more Community enterprises, which considers that such Community enterprises have suffered adverse trade effects as a result of obstacles to trade that have an effect on the market of a third country may lodge a written complaint. 2. The complaint must contain sufficient evidence of the existence of the obstacles to trade and of the adverse trade effects, resulting therefrom. Evidence of adverse trade effects must be given on the basis of the illustrative list of factors indicated in Article 10, where applicable.
Article 5 Complaint procedures
1. The complaint shall be submitted to the Commission, which shall send a copy thereof to the Member States. 2. The complaint may be withdrawn, in which case the procedure may be terminated unless such termination would not be in the interests of the Community. 3. Where it becomes apparent that the complaint does not provide sufficient evidence to justify initiating an investigation, the complainant shall be so informed. The Commission shall inform the Member States should it decide that the complaint does not provide sufficient evidence to justify initiating an investigation. 4. The Commission shall take a decision as soon as possible on the opening of a Community examination procedure following any complaint made in accordance with Articles 3 or 4; the decision shall normally be taken within 45 days of the lodging of the complaint; this period may be suspended at the request, or with the agreement, of the complainant, in order to allow the provision of complementary information which may be needed to fully assess the validity of the complainant's case.
Article 6 Referral by a Member State
1. Any Member State may ask the Commission to initiate the procedures referred to in Article 1. 2. It shall supply the Commission with sufficient evidence to support its request, as regards obstacles to trade and of any effects resulting therefrom. Where evidence of injury or of adverse trade effects is appropriate, is must be given on the basis of the illustrative list of factors indicated in Article 10, where applicable. 3. The Commission shall notify the other Member States of the requests without delay. 4. Where it becomes apparent that the request does not provide sufficient evidence to justify initiating an investigation, the Member State shall be so informed. The Commission shall inform the Member States should it decide that the complaint does not provide sufficient evidence to justify initiating an investigation. 5. The Commission shall take a decision as soon as possible on the opening of a Community examination procedure following any referral by a Member State made in accordance with Article 6; the decision shall normally be taken with 45 days of the referral; this period may be suspended at the request, or with the agreement, of the referring Member State, in order to allow the provision of complementary information which may be needed to fully assess the validity of the case presented by the referring Member State.
Article 7 Committee procedure
(a) The Commission shall be assisted by the Trade Barriers Committee, hereinafter referred to as 'the Committee'. That Committee shall be a committee within the meaning of Regulation (EU) No 182/2011 of the European Parliament and of the Council ( 3 ). (b) Where reference is made to this point, Article 4 of Regulation (EU) No 182/2011 shall apply. (c) Where reference is made to this point, Article 5 of Regulation (EU) No 182/2011 shall apply. 2. The Commission shall also refer to the European Parliament and to the Council information provided pursuant to this Regulation, to allow them to consider any wider implications for the common commercial policy.
Article 8 Community examination procedure
1. Where it is apparent to the Commission that there is sufficient evidence to justify initiating an examination procedure and that it is necessary in the interest of the Union, the Commission shall: (a) announce the initiation of an examination procedure in the Official Journal of the European Union . Such announcement shall indicate the product or service and the countries concerned, give a summary of the information received, and provide that all relevant information is to be communicated to the Commission; it shall state the period within which interested parties may apply to be heard orally by the Commission in accordance with paragraph 5; (b) officially notify the representatives of the country or countries which are the subject of the procedure, with whom, where appropriate, consultations may be held; (c) conduct the examination at Union level, acting in cooperation with the Member States. The Commission shall inform the Member States should it decide that the complaint provides sufficient evidence to justify initiating an investigation. (a) If necessary the Commission shall seek all the information it deems necessary and attempt to check this information with the importers, traders, agents, producers, trade associations and organizations, provided that the undertakings or organizations concerned give their consent. (b) Where necessary, the Commission shall carry out investigations in the territory of third countries, provided that the governments of the countries have been officially notified and raise no objection within a reasonable period. (c) The Commission shall be assisted in its investigation by officials of the Member State in whose territory the checks are carried out, provided that the Member State in question so requests. 3. Member States shall supply the Commission, upon request, with all information necessary for the examination, in accordance with the detailed arrangements laid down by the Commission. (a) The complainants and the exporters and importers concerned, as well as the representatives of the country or countries concerned, may inspect all information made available to the Commission except for internal documents for the use of the Commission and the administrations, provided that such information is relevant to the protection of their interests and not confidential within the meaning of Article 9 and that it is used by the Commission in its examination procedure. The persons concerned shall address a reasoned request in writing to the Commission, indicating the information required. (b) The complainants and the exporters and importers concerned and the representatives of the country or countries concerned may ask to be informed of the principal facts and considerations resulting from the examination procedure. 5. The Commission may hear the parties concerned. It shall hear them if they have, within the period prescribed in the notice published in the Official Journal of the European Communities , made a written request for a hearing showing that they are a party primarily concerned by the result of the procedure. 6. Furthermore, the Commission shall, on request, give the parties primarily concerned an opportunity to meet, so that opposing views may be presented and any rebuttal argument put forward. In providing this opportunity the Commission shall take account of the wishes of the parties and of the need to preserve confidentiality. 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. When the information requested by the Commission is not supplied within a reasonable time or where the investigation is significantly impeded, findings may be made on the basis of the facts available. 8. When it has concluded its examination the Commission shall report to the Committee. The report should normally be presented within five months of the announcement of initiation of the procedure, unless the complexity of the examination is such that the Commission extends the period to seven months.
Article 9 Confidentiality
1. Information received pursuant to this Regulation shall be used only for the purpose for which it was requested. (a) The Commission and the Member States, including the officials of either, shall not reveal any information of a confidential nature received pursuant to this Regulation, or any information provided on a confidential basis by a party to an examination procedure, without specific permission from the party submitting such information; (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 normally 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. 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 pursuant to this Regulation are based. Such disclosure must take into account the legitimate interest of the parties concerned that their business secrets should not be divulged.
Article 10 Evidence
1. An examination of injury shall involve where applicable the following factors: (a) the volume of Community imports or exports concerned, notably where there has been a significant increase or decrease, either in absolute terms or relative to production or consumption on the market in question; (b) the prices of the Community industry's competitors, in particular in order to determine whether there has been, either in the Community or on third country markets, significant undercutting of the prices of the Community industry; (c) the consequent impact on the Community industry and as indicated by trends in certain economic factors such as: production, utilization of capacity, stocks, sales, market share, prices (that is depression of prices or prevention of price increases which would normally have occurred), profits, return on capital, investment, employment. 2. Where a threat of injury is alleged, the Commission shall 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 rate of increase of exports to the market where the competition with Community products is taking place; (b) export capacity in the country of origin or export, which is already in existence or will be operational in the foreseeable future, and the likelihood that the exports resulting from that capacity will be to the market referred to in point (a). 3. Injury caused by other factors which, either individually or in combination, are also adversely affecting Community industry must not be attributed to the practices under consideration. 4. Where adverse trade effects are alleged, the Commission shall examine the impact of such adverse effects on the economy of the Community or of a region of the Community, or on a sector of economic activity therein. To this effect, the Commission may take into account, where relevant, factors of the type listed in paragraphs 1 and 2. Adverse trade effects may arise, inter alia , in situations in which trade flows concerning a product or service are prevented, impeded or diverted as a result of any obstacle to trade, or from situations in which obstacles to trade have materially affected the supply or inputs (e.g. parts and components or raw materials) to Community enterprises. Where a threat of adverse trade effects is alleged, the Commission shall also examine whether it is clearly foreseeable that a particular situation is likely to develop into actual adverse trade effects. 5. The Commission shall also, in examining evidence of adverse trade effects, have regard to the provisions, principles or practice which govern the right of action under relevant international rules referred to in Article 2 (1). 6. The Commission shall further examine any other relevant evidence contained in the complaint or in the referral. In this respect, the list of factors and the indications given in paragraphs 1 to 5 are not exhaustive, nor can one or several of such factors and indications necessarily give decisive guidance as to the existence of injury or of adverse trade effects.
Article 11 Termination and suspension of the procedure
1. When it is found, as a result of the examination procedure conducted pursuant to Article 8, that the interests of the Union do not require any action to be taken, the procedure shall be terminated by the Commission acting in accordance with the examination procedure referred to in Article 7(1)(c). (a) When, after an examination procedure conducted pursuant to Article 8, the third country or countries concerned take(s) measures which are considered satisfactory, and therefore no action by the Union is required, the procedure may be suspended by the Commission acting in accordance with the advisory procedure referred to in Article 7(1)(b). (b) The Commission shall supervise the application of these measures, where appropriate on the basis of information supplied at intervals, which it may request from the third countries concerned and check as necessary. (c) Where the measures taken by the third country or countries concerned have been rescinded, suspended or improperly implemented or where the Commission has grounds for believing this to be the case or, finally, where a request for information made by the Commission as provided for by point (b) has not been granted, the Commission shall inform the Member States, and where necessary and justified by the results of the investigation and the new facts available any measures shall be taken in accordance with Article 13(2). 3. Where, either after an examination procedure conducted pursuant to Article 8, or at any time before, during or after an international dispute settlement procedure, it appears that the most appropriate means of resolving a dispute arising from an obstacle to trade is the conclusion of an agreement with the third country or countries concerned which may change the substantive rights of the Union and of the third country or countries concerned, the procedure shall be suspended by the Commission acting in accordance with the advisory procedure referred to in Article 7(1)(b) of this Regulation, and negotiations shall be carried out in accordance with the provisions of Article 207 of the Treaty.
Article 12 Adoption of commercial policy measures
1. Where it is found (as a result of the examination procedure, unless the factual and legal situation is such that an examination procedure may not be required) that action is necessary in the interests of the Community in order to ensure the exercise of the Community's rights under international trade rules, with a view to removing the injury or the adverse trade effects resulting from obstacles to trade adopted or maintained by third countries, the appropriate measures shall be determined in accordance with the procedure set out in Article 13. 2. Where the Community's international obligations require the prior discharge of an international procedure for consultation or for the settlement of disputes, the measures referred to in paragraph 3 shall only be decided on after that procedure has been terminated, and taking account of the results of the procedure. In particular, where the Community has requested an international dispute settlement body to indicate and authorize the measures which are appropriate for the implementation of the results of an international dispute settlement procedure, the Community commercial policy measures which may be needed in consequence of such authorization shall be in accordance with the recommendation of such international dispute settlement body. 3. Any commercial policy measures may be taken which are compatible with existing international obligations and procedures, notably: (a) suspension or withdrawal of any concession resulting from commercial policy negotiations; (b) the raising of existing customs duties or the introduction of any other charge on imports; (c) the introduction of quantitative restrictions or any other measures modifying import or export conditions or otherwise affecting trade with the third country concerned. 4. The corresponding decisions shall state the reasons on which they are based and shall be published in the Official Journal of the European Communities. Publication shall also be deemed to constitute notification to the countries and parties primarily concerned.
Article 13 Decision-making procedures
1. Where the Union, as a result of a complaint pursuant to Article 3 or Article 4, or of a referral pursuant to Article 6, follows formal international consultation or dispute settlement procedures, decisions relating to the initiation, conduct or termination of such procedures shall be taken by the Commission. The Commission shall inform the Member States should it decide to initiate, conduct or terminate formal international consultations or dispute settlement procedures. 2. Where the Union, having acted in accordance with Article 12(2), has to take a decision on the measures of commercial policy to be adopted pursuant to Article 11(2)(c) or Article 12 of this Regulation, it shall act, without delay, in accordance with Article 207 of the Treaty and, as appropriate, any applicable procedures.
Amendment rationale: EXPLANATORY MEMORANDUM 1. INTRODUCTION The entry into force of the Treaty of Lisbon has led to significant changes both in the framework for the adoption of delegated and implementing acts and for the conduct of trade policy. As regards the adoption of delegated and implementing acts the Treaty on the Functioning of the European Union (hereinafter "the Treaty") clearly distinguishes between the two. – The provisions of the Treaty on delegated acts, which are set out in Article 290 of the Treaty on the Functioning of the European Union, provide for the legislator to control the exercise of the Commission's powers by means of a right of revocation and/or a right of objection. – The provisions of the Treaty on implementing acts, which are set out in Article 291, do not provide any role for the European Parliament and the Council to control the Commission's exercise of implementing powers. Such control can only be exercised by the Member States. A legal framework establishing the mechanisms of such control is set out in Regulation (EU) No 182/2011 of the European Parliament and the Council laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers. As regards trade policy, the Treaty of Lisbon provides that the ordinary legislative procedure applies, meaning that for the first time the European Parliament is fully associated in the conduct of trade policy. In relation to the adoption of Regulation (EU) No 182/2011 the Commission made the following statement: "The Commission will proceed to an examination of all legislative acts in force which were not adapted to the regulatory procedure with scrutiny before the entry into force of the Lisbon Treaty, in order to assess if those instruments need to be adapted to the regime of delegated acts introduced by Article 290 of the Treaty on the Functioning of the European Union. The Commission will make the appropriate proposals as soon as possible and no later than at the dates mentioned in the indicative calendar annexed to this declaration." The present proposal results from the Commission's examination of the legislative acts in the field of trade policy. Legislation in the field of trade policy has not been adapted in the past to the regulatory procedure with scrutiny. This proposal accompanies a first proposal the Commission has made on trade policy. That proposal (COM(2011)82 final of 7 March 2011 - referred to as "Trade Omnibus I") amends certain regulations relating to the common commercial policy as regards procedures where the Council was involved in decision-making which were not based on Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission. It proposes that such procedures be converted into either delegated acts pursuant to Article 290 of the Treaty or implementing acts pursuant to Article 291. The current proposal examines all remaining decision-making procedures found in trade policy legislation in order to adapt them, where appropriate, to the regime for delegated acts set down in Article 290. In principle these are decision-making procedures based on Council Decision 1999/468/EC. At the time of making the statement related to the adoption of Regulation 182/2011 the Commission provided a list of acts in annex. As regards trade policy, the Commission listed the following acts: – Council Regulation (EEC) No 3030/93 of 12 October 1993 on common rules for imports of certain textile products from third countries – Council Regulation (EC) No 517/94 of 7 March 1994 on common rules for imports of textile products from certain third countries not covered by bilateral agreements, protocols or other arrangements, or by other specific Community import rules – Council Regulation (EC) No 2248/2001 of 19 November 2001 on certain procedures for applying the Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the Republic of Croatia, of the other part and for applying the Interim Agreement between the European Community and the Republic of Croatia, as amended – Council Regulation (EC) No 953/2003 of 26 May 2003 to avoid trade diversion into the European Union of certain key medicines – Council Regulation (EC) No 673/2005 of 25 April 2005 establishing additional customs duties on imports of certain products originating in the United States of America – Council Regulation (EC) No 1616/2006 of 23 October 2006 on certain procedures for applying the Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the Republic of Albania, of the other part, and for applying the Interim Agreement between the European Community and the Republic of Albania – Council Regulation (EC) No 1528/2007 of 20 December 2007 applying the arrangements for products originating in certain states which are part of the African, Caribbean and Pacific (ACP) Group of States provided for in agreements establishing, or leading to the establishment of, Economic Partnership Agreements – Council Regulation (EC) No 55/2008 of 21 January 2008 introducing autonomous trade preferences for the Republic of Moldova and amending Regulation (EC) No 980/2005 and Commission Decision 2005/924/EC – Council Regulation (EC) No 140/2008 of 19 November 2007 on certain procedures for applying the Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the Republic of Montenegro, of the other part, and for applying the Interim Agreement between the European Community, of the one part, and the Republic of Montenegro, of the other part – Council Regulation (EC) No 594/2008 of 16 June 2008 on certain procedures for applying the Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and Bosnia and Herzegovina, of the other part, and for applying the Interim Agreement on trade and trade-related matters between the European Community, of the one part, and Bosnia and Herzegovina, of the other part – Council Regulation (EC) No 732/2008 of 22 July 2008 applying a scheme of generalised tariff preferences for the period from 1 January 2009 to 31 December 2011 and amending Regulations (EC) No 552/97, (EC) No 1933/2006 and Commission Regulations (EC) No 1100/2006 and (EC) No 964/2007 – Council Regulation (EC) No 1215/2009 of 30 November 2009 introducing exceptional trade measures for countries and territories participating in or linked to the European Union's Stabilisation and Association process – Council Regulation (EC) No 1342/2007 of 22 October 2007 on administering certain restrictions on imports of certain steel products from the Russian Federation – Council Regulation (EC) No 1340/2008 of 8 December 2008 on trade in certain steel products between the European Community and the Republic of Kazakhstan The Commission has examined all of these regulations. Where appropriate, it proposes that certain procedures be converted into delegated acts. The next section explains for each regulation the approach proposed by the Commission.
Revised version (Article 13 Decision-making procedures):
1. Where the Union, as a result of a complaint pursuant to Article 3 or Article 4, or of a referral pursuant to Article 6, follows formal international consultation or dispute settlement procedures, decisions relating to the initiation, conduct or termination of such procedures shall be taken by the Commission. The Commission shall inform the Member States should it decide to initiate, conduct or terminate formal international consultations or dispute settlement procedures. 2. Where the Union, having acted in accordance with Article 12(2), has to take a decision on the measures of commercial policy to be adopted pursuant to Article 11(2)(c) or pursuant to Article 12, it shall act, without delay, in accordance with Article 207 of the Treaty on the Functioning of the European Union and, as appropriate, Regulation (EU) No 654/2014 of the European Parliament and of the Council ( 4 ) or any other applicable procedures.
Article 13a 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 Council Regulation (EC) No 1225/2009 ( 4 ).
Article 15 General provisions
1. This Regulation shall not apply in cases covered by other existing rules in the common commercial policy field. It shall operate by way of complement to: — the rules establishing the common organization of agricultural markets and their implementing provisions, and — the specific rules adopted pursuant to Article 235 of the Treaty, applicable to goods processed from agricultural products. It shall be without prejudice to other measures which may be taken pursuant to Article 113 of the Treaty, as well as to Community procedures for dealing with matters concerning obstacles to trade raised by Member States in the committee established by Article 113 of the Treaty. 2. Regulation (EEC) No 2641/84 is hereby repealed. References to the repealed Regulation shall be construed as references to this Regulation where appropriate.
Article 16 Entry into force
This Regulation shall enter into force on 1 January 1995. It shall apply to proceedings initiated after that date as well as to proceedings pending at that date and in relation to which Community examination procedures have been completed. This Regulation shall be binding in its entirety and directly applicable in all Member States.