Regulation (EU) 2015/1843 of the European Parliament and of the Council of 6 October 2015 laying down Union procedures in the field of the common commercial policy in order to ensure the exercise of the Union’s rights under international trade rules, in particular those established under the auspices of the World Trade Organization (codification)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 207(2) 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 (1),

Acting in accordance with the ordinary legislative procedure (2),

Whereas:

(1) Council Regulation (EC) No 3286/94 (3) has been substantially amended several times (4). In the interests of clarity and rationality, that Regulation should be codified.

(2) It is necessary that the common commercial policy be based on uniform principles, in particular with regard to commercial defence.

(3) It appears necessary to provide for Union procedures to ensure the effective exercise of the rights of the Union under international trade rules.

(4) International trade rules are primarily those established under the auspices of the World Trade Organization (‘WTO’) and laid down in the Annexes to the WTO Agreement, but they can also include rules laid down in any other agreement to which the Union is a party and which are applicable to trade between the Union and third countries. It is appropriate to give a clear idea of the types of agreements to which the term ‘international trade rules’ refers.

(5) Union procedures to ensure the effective exercise of the rights of the Union under international trade rules should be based on a legal mechanism under Union law which is fully transparent, and ensures that the decision to invoke the Union’s rights under international trade rules is taken on the basis of accurate factual information and legal analysis.

(6) Such a mechanism should aim to provide procedural means for requesting that the Union institutions react to obstacles to trade that are adopted or maintained by third countries and which cause injury or otherwise adverse trade effects, provided that a right of action exists, in respect of such obstacles, under applicable international trade rules.

(7) The right of Member States to resort to such a mechanism should be without prejudice to the possibility for Member States to raise the same or similar matters through other existing Union procedures, and in particular before the committee established by Article 207(3) of the Treaty.

(8) Regard should be paid to the institutional role of the committee established by Article 207(3) of the Treaty in formulating advice for the institutions of the Union on all issues of commercial policy. Therefore, that committee should be kept informed of the development of individual cases, in order to enable it to consider their broader policy implications.

(9) It is appropriate to require that the Union act in compliance with its international obligations and, where such obligations result from agreements, that the Union maintain the balance of rights and obligations which it is the purpose of those agreements to establish.

(10) It is also appropriate to provide that any measures taken under the procedures in question should also be in conformity with the Union’s international obligations, as well as being without prejudice to other measures in cases not covered by this Regulation which might be adopted directly pursuant to Article 207 of the Treaty.

(11) The rules of procedure to be followed during the examination procedure provided for in this Regulation should also be laid down, in particular as regards the rights and obligations of the Union authorities and the parties involved, and the conditions under which interested parties may have access to information and may ask to be informed of the essential facts and considerations resulting from the examination procedure.

(12) In acting pursuant to this Regulation, the Union has to bear in mind the need for rapid and effective action through the application of the decision-making procedures provided for in this Regulation.

(13) It is incumbent on the Commission to act in respect of obstacles to trade that are adopted or maintained by third countries, within the framework of the Union’s international rights and obligations, only when the interests of the Union call for intervention. When assessing such interests, the Commission should give due consideration to the views of all interested parties in the proceedings.

(14) The implementation of the examination procedures provided for in this Regulation requires uniform conditions for the adoption of decisions on the conduct of those examination procedures and measures resulting therefrom. Those measures should be adopted in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council (5).

(15) The advisory procedure should be used for the suspension of ongoing examinations given the effects of such measures and their sequential logic in relation to the adoption of measures.

(16) The European Parliament and the Council should be kept informed of the developments under this Regulation, in order to enable them to consider their broader policy implications.

(17) Moreover, in cases where an agreement with a third country appears to be the most appropriate means of resolving a dispute arising from an obstacle to trade, negotiations to this end should be conducted in accordance with the procedures established in Article 207 of the Treaty,

HAVE ADOPTED THIS REGULATION:

Article 1

Subject matter

This Regulation provides for Union procedures in the field of the common commercial policy in order to ensure the exercise of the Union’s rights under international trade rules, in particular those established under the auspices of the World Trade Organization (‘WTO’) which, subject to compliance with existing international obligations and procedures, aim to:

(a) responding to obstacles to trade that have an effect on the market of the Union, 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.

The procedures referred to in the first paragraph 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

(a) ‘obstacles to trade’ means 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;

(b) ‘the Union’s rights’ means the international trade rights of which the Union 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 Union is a party and which sets out rules applicable to trade between the Union and third countries;

(c) ‘injury’ means any material injury which an obstacle to trade causes or threatens to cause, in respect of a product or service, to a Union industry, on the market of the Union;

(d) ‘adverse trade effects’ means the adverse effects which an obstacle to trade causes or threatens to cause, in respect of a product or service, to Union enterprises, on the market of any third country, and which have a material impact on the economy of the Union or of a region of the Union, or on a sector of economic activity in the Union; the fact that the complainant suffers from such adverse effects shall not be considered sufficient to justify, on its own, the Union institutions proceeding with any action;

(f) ‘Union enterprise’ means 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 Union, that is directly concerned by the production of goods or the provision of services which are the subject of the obstacle to trade;

(g) ‘services’ means those services in respect of which international agreements can be concluded by the Union on the basis of Article 207 of the Treaty.

Article 3

Complaint on behalf of the Union industry

Article 4

Complaint on behalf of Union enterprises

Article 5

Complaint procedures

The Commission shall inform the Member States where it decides that the complaint does not provide sufficient evidence to justify initiating an investigation.

The decision shall be taken within 45 days of the lodging of the complaint. That period may be suspended at the request, or with the agreement, of the complainant, in order to allow for the provision of complementary information which may be needed to fully assess the validity of the complainant’s case.

Article 6

Request by a Member State

The Commission shall inform the Member States where it decides that the request does not provide sufficient evidence to justify initiating an investigation.

Article 7

Committee procedure

Article 8

Information to the European Parliament and to the Council

The Commission shall 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 9

Union examination procedure

(a) announce the initiation of an examination procedure in the Official Journal of the European Union; the 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 and 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 where it decides that the complaint provides sufficient evidence to justify initiating an investigation.

(a) seek all the information it deems necessary and attempt to check this information with importers, traders, agents, producers, trade associations and organisations, provided that the undertakings or organisations concerned give their consent;

(b) carry out investigations in the territory of third countries, provided that the governments of those countries have been officially notified and raised no objection within a reasonable time.

The Commission shall be assisted in its investigations by officials of the Member State in whose territory the checks are carried out, provided that the Member State in question so requests.

(a) 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 10 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) ask to be informed of the principal facts and considerations resulting from the examination procedure.