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This regulation transposes the provisions of the Agreement on Subsidies and Countervailing Measures concluded within the framework of the World Trade Organisation (WTO) into European Union (EU) legislation with a view to ensuring appropriate and transparent application of the anti-subsidy rules.
Council Regulation (EC) No 597/2009 of 11 June 2009 on protection against subsidised imports from countries not members of the European Community.
This regulation provides for the imposition of countervailing duties for the purpose of offsetting any subsidy granted, directly or indirectly, for the manufacture, production, export or transport of any product originating in a non-European Union (EU) country whose release for free circulation in the EU causes injury.
This regulation works alongside Regulation (EC) No 1225/2009 (‘the Anti-Dumping Agreement’). The provisions for the determination of injury, the definition of EU industry, the initiation of the proceeding, the investigation, the provisional and definitive measures and the termination of the proceeding are therefore identical in both regulations.
Definition of a subsidy
A subsidy is deemed to exist, firstly, if there is a financial contribution by a government or if there is any form of income or price support within the meaning of Article XVI of the General Agreement on Tariffs and Trade 1994 (GATT 1994) and, secondly, if a benefit is thereby conferred.
Subsidies are subject to countervailing measures only if they are specific to an enterprise or industry or to a group of enterprises or industries. They are specific in cases where the granting authority explicitly limits access to a subsidy to certain enterprises.
Calculation of the amount of countervailable subsidies
This amount is calculated in terms of the benefit conferred on the recipient during the investigation period. This regulation sets the following rules for calculating the benefit to the recipient:
- government provision of equity capital is considered to confer a benefit if the investment can be regarded as inconsistent with the usual investment practice in the country of origin or export;
- a loan by a government is considered to confer a benefit if there is a difference between the amount that the firm receiving the loan pays on the government loan and the amount that the firm would pay for a comparable commercial loan;
- a loan guaranteed by a government is considered to confer a benefit if there is a difference between the amount that the firm receiving the guarantee pays on the loan guaranteed by the government and the amount that the firm would pay for a comparable commercial loan without the government guarantee;
- the provision of goods by a government is considered to confer a benefit if the provision is made for less than adequate remuneration in relation to prevailing market conditions or the purchase is made for more than adequate remuneration in relation to these conditions.
The amount of the subsidy is determined per unit of the subsidised product exported to the EU. Some elements may be deducted from the subsidy, such as any fees or costs incurred in order to qualify for the subsidy or export taxes intended to offset the subsidy. Where a subsidy is not granted by reference to the quantities, the amount of the subsidy is determined by spreading the value of the total subsidy over the level of production, sales or exports of the product during the investigation period.
Determination of injury
The determination of injury must be based on positive evidence and involve an objective examination of the following elements:
- the volume of the subsidised imports;
- the effect of the subsidised imports on prices of like products on the EU market;
- the consequent impact of those imports on the EU industry concerned.
Initiation of proceedings
Proceedings are initiated upon a written complaint by any natural or legal person, or any association not having legal personality, acting on behalf of an EU industry. Where, in the absence of any complaint, an EU country is in possession of sufficient evidence of subsidisation and of resultant injury to the EU industry, it shall immediately communicate such evidence to the Commission. The complaint must include evidence of the existence of countervailable subsidies (including, if possible, of their amount), injury and a causal link between these two elements.
The complaint is considered to have been made by or on behalf of the EU industry if it is supported by those EU producers whose collective output constitutes more than 50 % of the total EU production of the like product produced by that portion of the EU industry expressing either support for or opposition to the complaint. However no investigation is initiated where the portion of EU industry supporting the complaint account for less that 25 % of total production.
Provisional duties may be imposed if:
- proceedings have been initiated and interested parties have had adequate opportunity to submit information and make comments;
- a provisional affirmative determination has been made that the imported product benefits from countervailable subsidies, resulting in injury to the EU industry;
- it is in the EU interest to intervene to prevent such injury.
Imposition of definitive anti-dumping duties
Where the facts show the existence of countervailable subsidies and resultant injury, and the EU interest calls for intervention, a definitive countervailing duty is imposed by the Council. The amount of the countervailing duty must not exceed the amount of the countervailable subsidies established and it should be less if it would be adequate to remove the injury to the EU industry.
|Act||Entry into force||Deadline for transposition in the Member States||Official Journal|
Regulation (EC) No 597/2009
OJ L 188 of 18.7.2009