Text proposed by the Commission

Amendment

(2)  Articles 2(7)(a) and 2(7)(b) of Regulation (EU) 2016/1036 stipulate the basis on which normal value should be determined in the case of imports from non-market economy countries. In view of developments with respect to certain countries that are Members of the WTO, it is appropriate that, for those countries, normal value should be determined on the basis of paragraphs 1 to 6a of Article 2 of Regulation (EU) 2016/1036, with effect from the date on which this Regulation enters into force, and subject to the provisions of this Regulation. In the case of countries which are, at the date of initiation, not Members of the WTO and listed in Annex I of Regulation (EU) 2015/7551, norma1 value should be determined on the basis of paragraph 7 of Article 2 of Regulation (EU) 2016/1036, as amended by this Regulation. This Regulation should be without prejudice to establishing whether or not any WTO Member is a market economy.

(2)  Articles 2(7)(a) and 2(7)(b) of Regulation (EU) 2016/1036 stipulate the basis on which normal value should be determined in the case of imports from non-market economy countries. For countries that are Members of the WTO, it is appropriate that, for those countries, normal value should be determined on the basis of paragraph 6a of Article 2 of Regulation (EU) 2016/1036, with effect from the date on which this Regulation enters into force, and subject to the provisions of this Regulation. In the case of countries which are, at the date of initiation, not Members of the WTO and listed in Annex I of Regulation (EU) 2015/7551, norma1 value should be determined on the basis of paragraph 7 of Article 2 of Regulation (EU) 2016/1036, as amended by this Regulation. This Regulation should be without prejudice to establishing whether or not any WTO Member is a market economy. This Regulation is in accordance with the Union's obligations under international law, including a reference to Member States’ commitments to the United Nations Sustainable Development Goals. Furthermore, it is be without prejudice to the terms and conditions set out in protocols and other instruments in accordance with which countries have acceded to the Marrakesh Agreement establishing the WTO. In applying its rules, it is essential for the Union to coordinate and exchange information with its major trade partners.

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1 Regulation (EU) 2015/755 of the European Parliament and of the Council of 29 April 2015 on common rules for imports from certain third countries (OJ L 123, 19.5.2015, p. 33).

1 Regulation (EU) 2015/755 of the European Parliament and of the Council of 29 April 2015 on common rules for imports from certain third countries (OJ L 123, 19.5.2015, p. 33).

Text proposed by the Commission

Amendment

(3)  In the light of experience gained in past proceedings, it is appropriate to clarify the circumstances in which significant distortions affecting to a considerable extent free market forces may be deemed to exist. In particular, it is appropriate to clarify that this situation may be deemed to exist, inter alia, when reported prices or costs, including the costs of raw materials, are not the result of free market forces because they are affected by government intervention. It is further appropriate to clarify that in considering whether or not such a situation exists regard may be had, inter alia, to the potential impact of the following: the market in question is to a significant extent served by enterprises which operate under the ownership, control or policy supervision or guidance of the authorities of the exporting country; state presence in firms allowing the state to interfere with respect to prices or costs; public policies or measures discriminating in favour of domestic suppliers or otherwise influencing free market forces; and access to finance granted by institutions implementing public policy objectives. It is further appropriate to provide that the Commission services may issue a report describing the specific situation concerning these criteria in a certain country or a certain sector; that such report and the evidence on which it is based may be placed on the file of any investigation relating to that country or sector; and that interested parties should have ample opportunity to comment on the report and the evidence on which it is based in each investigation in which such report or evidence is used.

(3)  In the light of experience gained in past proceedings, it is appropriate to clarify the circumstances in which significant distortions affecting to a considerable extent free market forces occur. In particular, it is appropriate to clarify that this situation occurs, inter alia, when reported prices or costs, including the costs of raw materials, energy and other factors of production, are not the result of free market forces as they are affected by government intervention, or in case of lack of compliance with core ILO Conventions, environmental and tax multilateral agreements leading to a distortion of competition. It is further appropriate to clarify that when assessing the existence of significant distortions regard should be had, inter alia, to the potential impact of the following: government influence, whether direct or indirect, over the allocation of resources and decisions and enterprises; the market in question is to a significant extent served by enterprises which operate under the ownership, control or policy supervision or guidance of the authorities of the exporting country; state presence in firms allowing the state to interfere with respect to prices or costs; public policies or measures discriminating in favour of domestic suppliers or otherwise influencing free market forces; the lack of or discriminatory application or inadequate enforcement of a transparent and effective functioning company law which ensures adequate corporate governance; the lack of or discriminatory application or inadequate enforcement of a transparent and effective set of laws that ensure the respect of property rights and the operation of a functioning bankruptcy regime; wage rates are not the result of free bargaining between labour and management; the absence of a transparent set of laws produces discriminatory effects with regard to joint-ventures and foreign investments and access to finance granted by institutions implementing public policy objectives, including by sectorial subsidies, or the existence of an oligopoly or monopoly in factors of production and other circumstances which the Commission considers to be appropriate in order to evaluate the existence of significant distortions. It is further appropriate that the Commission services should issue a detailed report describing the specific situation concerning those criteria in a certain country or a certain sector. For those countries for which a substantial number of anti-dumping cases have been opened, the report should be adopted by... [insert date that is the entry into force of this Regulation + 15 days]. Such report and the evidence on which it is based should be placed on the file of any investigation relating to that country or sector. Interested parties, including Union industry and trade unions should have ample opportunity to comment on the report and the evidence on which it is based in each investigation in which such report or evidence is used. Such comments should be considered when deciding on producing and updating the relevant reports. The assessment of significant distortions is particularly important in the case of heterogeneous sectors in which there is a high proportion of small and medium- sized enterprises (SMEs) where evidence of sector-specific distortions are the most difficult to find. On the request of the European Parliament, a Member State or on the Commission’s own initiative when circumstances in a specific country or sector have changed the Commission should initiate or update the report. The Commission should include an analysis on the implementation of this Regulation in its annual report on the Union’s anti-dumping, anti-subsidy and safeguard activities and should present it to the European Parliament.

Text proposed by the Commission

Amendment

(4)  It is further appropriate to recall that costs should normally be calculated on the basis of records kept by the exporter or producer under investigation. However, where there are significant distortions in the exporting country with the consequence that costs reflected in the records of the party concerned are artificially low, such costs may be adjusted or established on any reasonable basis, including information from other representative markets or from international prices or benchmarks. In the light of experience gained in past proceedings, it is appropriate to further clarify that, for the purposes of applying the provisions introduced by this regulation, due account should be taken of all relevant evidence, including relevant assessment reports regarding the circumstances prevailing on the domestic market of the exporting producers and the evidence on which they are based, which has been placed on the file, and upon which interested parties have had an opportunity to comment.

(4)  It is further appropriate to recall that costs should normally be calculated on the basis of reliable records kept by the exporter or producer under investigation. However, where there are significant distortions in the exporting country with the consequence that costs reflected in the records of the party concerned are artificially low, such costs should be established on any reasonable basis, including information from other representative markets, from markets in the Union or from undistorted international prices or benchmarks. If an exporting producer from a country or a sector in which there exists one or more significant distortions conclusively demonstrates that it is not directly or indirectly affected by any significant distortion and that its costs in respect of one or more individual factors of production are not distorted, those costs should be used in the construction of its normal value. Such individual findings should not influence the normal value of other producers and therefore should not be extrapolated to the whole country or sector. In the light of experience gained in past proceedings, it is appropriate to further clarify that, for the purposes of applying the provisions introduced by this regulation, due account should be taken of all relevant evidence, including relevant assessment reports regarding the circumstances prevailing on the domestic market of the exporting producers and the evidence on which they are based, which has been placed on the file, and upon which interested parties have had an opportunity to comment. Union industry should be able to present indications as to the existence of significant distortions. Such indications should be considered when deciding on producing or updating the relevant reports. When the report shows the existence of one or more significant distortions, the report should constitute sufficient evidence in order to justify the calculation of the normal value. In any event, no additional burdens should be requested from the Union industry. The parties to the investigation should be informed shortly after initiation of the investigation about the relevant sources that the Commission intends to use, including a preliminary determination as to the existence of significant distortions and shall be given 10 working days to comment. For that purpose, interested parties should be able to access the file after they have registered on a register maintained by the Commission, including any evidence on which the investigating authority relies, without prejudice to rules on confidentiality set out in Regulation (EU) 2016/1036. A definitive determination on the existence of one or more significant distortions in the exporting country in the economy as a whole or in sector therein should be made by the Commission and disclosed to the parties no later than 60 days following the initiation of the investigation. A determination that significant distortions exist in a given country or sector should remain in effect until revoked, and such revocation should take place only if sufficient evidence has conclusively shown that that country or sector is no longer affected by significant distortions.

Text proposed by the Commission

Amendment

(6)  Absent any other specific transitional rules regulating the matter, it is appropriate to provide for the application of this Regulation to all decisions on the initiation of proceedings, and to all proceedings, including original investigations and review investigations, initiated, on or after the date on which this Regulation enters into force, subject to Article 11(9) of Regulation (EU) 2016/1036. Furthermore, by way of specific transitional rule, and having regard to the absence of any other specific transitional rule regulating the matter, it is appropriate to provide that, in the case of a transition from a normal value calculated pursuant to Articles 2(7)(a) or 2(7)(b) to a normal value calculated pursuant to paragraphs 1 to 6a of Article 2, the reasonable period of time provided for in the first sub-paragraph of Article 11(3) of Regulation (EU) 2016/1036 should be deemed to elapse on the date on which the first expiry review following such transition is initiated. With a view to reducing the risk of circumvention of the provisions of this Regulation, the same approach should apply with respect to reviews conducted pursuant to Article 11(4) of Regulation (EU) 2016/1036. It is also appropriate to recall that a transition from a normal value calculated pursuant to Articles 2(7)(a) or 2(7)(b) to a normal value calculated pursuant to paragraphs 1 to 6a of Article 2 would not in itself constitute sufficient evidence within the meaning of Article 11(3) of Regulation (EU) 2016/1036. Such transitional rules should complete a lacuna that would otherwise risk to generate legal uncertainty, should provide a reasonable opportunity for interested parties to adapt themselves to the expiry of the old rules and the entry into force of the new rules, and should facilitate the efficient, orderly and equitable administration of Regulation (EU) 2016/1036.

(6)  Absent any other specific transitional rules regulating the matter, it is appropriate to provide for the application of this Regulation to all decisions on the initiation of proceedings, and to all proceedings, including original investigations and review investigations, initiated, on or after the date on which this Regulation enters into force, subject to Article 11(9) of Regulation (EU) 2016/1036. Furthermore, by way of specific transitional rule, and having regard to the absence of any other specific transitional rule regulating the matter, it is appropriate to provide that, in the case of a transition from a normal value calculated pursuant to Articles 2(7)(a) or 2(7)(b) of Regulation (EU) 2016/1036 to a normal value calculated pursuant to paragraph 1 to 6a of Article 2, the reasonable period of time provided for in the first sub-paragraph of Article 11(3) of Regulation (EU) 2016/1036 should be deemed to elapse on the date on which the first expiry review following such transition is terminated. With a view to reducing the risk of circumvention of the provisions of this Regulation, the same approach should apply with respect to reviews conducted pursuant to Article 11(4) of Regulation (EU) 2016/1036. It is also appropriate to recall that a transition from a normal value calculated pursuant to Articles 2(7)(a) or 2(7)(b) of Regulation (EU) 2016/1036 to a normal value calculated pursuant to paragraph 1 to 6a of Article 2 would not in itself constitute sufficient evidence within the meaning of Article 11(3) of Regulation (EU) 2016/1036. Such transitional rules, enabling the continued application of measures to defend against subsidised imports, should complete a lacuna that would otherwise risk to generate legal uncertainty, should provide a reasonable opportunity for interested parties to adapt themselves to the expiry of the old rules and the entry into force of the new rules, and should facilitate the efficient, orderly and equitable administration of Regulation (EU) 2016/1036.

Text proposed by the Commission

Amendment

'6a.  (a) In case it is determined, when applying this provision or any other relevant provision of this Regulation, that it is not appropriate to use domestic prices and costs in the exporting country due to the existence of significant distortions, the normal value shall be constructed on the basis of costs of production and sale reflecting undistorted prices or benchmarks. For this purpose, the sources that may be used include undistorted international prices, costs, or benchmarks, or corresponding costs of production and sale in an appropriate representative country with a similar level of economic development as the exporting country, provided the relevant cost data are readily available. The constructed normal value shall include a reasonable amount for administrative, selling and general costs and for profits.

'6a.  (a) In case it is determined that it is not appropriate to use domestic prices and costs due to the existence of one or more of significant distortions in the exporting country in the economy as a whole or in sector therein, the normal value shall be constructed on the basis of costs of production and sale reflecting undistorted prices or benchmarks for each and every factor of production. For this purpose, the sources the Commission may use include undistorted international prices, costs, or benchmarks, or corresponding costs of production and sale in an appropriate representative country including those in the Union, provided the relevant cost data are readily available.

If an exporting producer from a country where one or more significant distortions exist clearly demonstrates that it is not directly or indirectly affected by any significant distortion and that its costs of one or more of its individual factors of production are not distorted, as assessed pursuant to the third subparagraph, those costs shall be used in the construction of its normal value.

The absence of distortion of an exporting producer’s costs of a given factor of production and the reliability thereof shall be assessed, inter alia, by reference to the quantities involved, their proportion in relation to the total costs of that factor of production, and actual use in production.

Such individual findings shall not influence the normal value of other exporting producers and therefore shall not be extrapolated to the whole country or sectors regardless of the application of Article 17 of Regulation (EU) 2016/1036.

The constructed normal value shall include an undistorted and reasonable amount for administrative, selling and general costs and profits. In the event of lack of cooperation in drafting the report by an exporting producer or the authorities from a country in which one or more significant distortions are deemed to exist, Article 18 of Regulation (EU) 2016/1036 applies.

Text proposed by the Commission

Amendment

(b) Significant distortions for the product concerned within the meaning of point (a) may be deemed to exist, inter alia, when reported prices or costs, including the costs of raw materials, are not the result of free market forces as they are affected by government intervention. In considering whether or not significant distortions exist regard may be had, inter alia, to the potential impact of the following: the market in question is to a significant extent served by enterprises which operate under the ownership, control or policy supervision or guidance of the authorities of the exporting country; state presence in firms allowing the state to interfere with respect to prices or costs; public policies or measures discriminating in favour of domestic suppliers or otherwise influencing free market forces; and access to finance granted by institutions implementing public policy objectives.

(b) Significant distortions within the meaning of point (a) are those distortions which occur when reported prices or costs, including the costs of raw materials, energy and other factors of production, are not the result of free market forces as they are affected by government intervention, or in the event of lack of compliance with the core ILO conventions listed in Annex -I, multilateral environmental agreements to which the Union is a party and relevant OECD conventions pertaining to the field of taxations, leading to a distortion of competition. In assessing the existence of significant distortions regard shall be had, inter alia, to the potential impact of the following: a high degree of government influence, whether direct or indirect, over the allocation of resources and decisions and enterprises; the market in question is to a significant extent served by enterprises which operate under the ownership, control or policy supervision or guidance of the authorities of the exporting country; state presence in firms allowing the state to interfere with respect to prices or costs; public policies or measures discriminating in favour of domestic suppliers or otherwise influencing free market forces; the lack of or discriminatory application or inadequate enforcement of a transparent and effective functioning company law which ensures adequate corporate governance; the lack of or discriminatory application or inadequate enforcement of a transparent and effectively functioning set of laws that ensures the respect of property rights and the operation of a functioning bankruptcy regime; wage rates are not the result of free bargaining between labour and management; the absence of a transparent set of laws produces discriminatory effects with regard to joint-ventures and foreign investments and access to finance granted by institutions which implement public policy objectives, or otherwise not acting autonomously from the state, including by way of sectorial subsidies, or the existence of an oligopoly or monopoly in factors of production, and other circumstances which the Commission considers to be appropriate in order to evaluate the existence of significant distortions.

Text proposed by the Commission

Amendment

(c) When appropriate, the Commission services may issue a report describing the specific situation concerning the criteria listed in point (b) in a certain country or a certain sector. Such report and the evidence on which it is based may be placed on the file of any investigation relating to that country or sector. Interested parties shall have ample opportunity to supplement, comment or rely on the report and the evidence on which it is based in each investigation in which such report or evidence is used. The determinations made shall take into account all of the relevant evidence on the file.

(c) The Commission services shall issue a detailed report describing the specific situation concerning the criteria listed in point (b) in a certain country or a certain sector. For those countries for which a substantial number of anti-dumping cases have been opened, the report shall be adopted by...[insert date that is date of entry into force of this Regulation + 15 days]. Such report and the evidence on which it is based shall be placed on the file of any investigation relating to that country or sector. Interested parties, including Union industry and trade unions, shall have ample opportunity to comment or rely on the report and the evidence on which it is based in each investigation in which such report or evidence is used. Such indications shall be considered when deciding on producing and updating the relevant reports. In drafting its report the Commission shall take into consideration the economic and trade specificities of SMEs and shall help them in the process of making use of the reports. In making the determinations, the Commission shall take into account all the relevant evidence that is on the file of investigation. On the request of the European Parliament, of a Member State or on the Commission’s own initiative when circumstances in a specific country or sector have changed, the Commission shall initiate or update the report. The Commission shall include an analysis on the implementation of this Regulation in its annual report on the Union’s anti-dumping, anti-subsidy and safeguard activities and shall present it to the European Parliament.

Text proposed by the Commission

Amendment

(d) The Union industry may rely on the report referred to in point (c) for the calculation of normal value when filing a complaint in accordance with Article 5 or a request for a review in accordance with Article 11.

(d) The Union industry may rely on the report referred to in point (c) for the calculation of normal value when filing a complaint in accordance with Article 5 or a request for a review in accordance with Article 11 or in a request for re-investigation in accordance with Article 12. When the report shows the existence of one or more significant distortions, the report pursuant to point (c) shall constitute sufficient evidence in order to justify the calculation of the normal value pursuant to in point (a). In any event, no additional burdens shall be requested from the Union industry in the determination of the existence of significant distortions in a third country or sector. In the absence of a report, the Commission shall use any available information or data to establish the existence of significant distortions and use the methodology referred to in point (a) if the relevant requirements are met.

Text proposed by the Commission

Amendment

(e) The parties to the investigation shall be informed shortly after initiation about the relevant sources that the Commission intends to use for the purpose of point (a) and shall be given 10 days to comment. For this purpose, interested parties shall be given access to the file, including any evidence on which the investigating authority relies, without prejudice to Article 19.

(e) The parties to the investigation shall be informed shortly after initiation about the relevant sources that the Commission intends to use for the purpose of point (a), including a preliminary determination as the existence of significant distortions and shall be given 10 working days to comment. For this purpose, interested parties shall be given access the file after they have registered on a register maintained by the Commission, including any evidence on which the investigating authority relies, without prejudice to Article 19. The Commission shall make a definitive determination on the existence of one or more significant distortions in the exporting country in the economy as a whole or in a sector therein and shall disclose it to the parties no later than 60 days following the initiation of the investigation.

A determination that significant distortions exist in a given country or sector shall remain in effect until revoked, and such revocation shall take place only if sufficient evidence has conclusively shown that that country or sector is no longer affected by significant distortions.

Text proposed by the Commission

Amendment

In the case of imports from countries which are, at the date of initiation, not members of the WTO and listed in Annex I of Regulation (EU) 2015/755, 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 Union, or where those are not possible, on any other reasonable basis, including the price actually paid or payable in the Union for the like product, duly adjusted if necessary to include a reasonable profit margin.

In the case of imports from countries which are, at the date of initiation, not members of the WTO and listed in Annex I of Regulation (EU) 2015/755, normal value shall be determined on the basis of the price or constructed value in an appropriate representative country that is either member of the WTO or not listed in Annex I to Regulation (EU) 2015/755. Otherwise, the normal value shall be determined on the basis of the price from such a third country to other countries, including the Union, or where those are not possible, on any other reasonable basis, including the price actually paid or payable in the Union for the like product, duly adjusted if necessary to include a reasonable profit margin.

Text proposed by the Commission

Amendment

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; where appropriate, a market economy third country which is subject to the same investigation shall be used.

An appropriate representative 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; where appropriate, an appropriate representative country which is subject to the same investigation shall be used.

Text proposed by the Commission

Amendment

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.

The parties to the investigation shall be informed shortly after its initiation of the appropriate representative country envisaged and shall be given 10 days to comment.

Present text

Amendment

(2a)  In Article 3, paragraph 6 is replaced by the following:

‘6. It must be demonstrated, from all the relevant evidence presented in relation to paragraph 2, that the dumped imports are causing injury within the meaning of this Regulation. Specifically, that shall entail demonstrating that the volume and/or price levels identified pursuant to paragraph 3 are responsible for an impact on the Union industry as provided for in paragraph 5, and that that impact exists to a degree which enables it to be classified as material.’

"6. It must be demonstrated, from all the relevant evidence and the best information available presented in relation to paragraph 2, that the dumped imports are causing injury within the meaning of this Regulation. Specifically, that shall entail demonstrating that the volume and/or price levels identified pursuant to paragraph 3 are responsible for an impact on the Union industry as provided for in paragraph 5, and that that impact exists to a degree which enables it to be classified as material.’

Text proposed by the Commission

Amendment

In the case of a transition from a normal value calculated pursuant to the former Articles 2(7)(a) or 2(7)(b) to a normal value calculated pursuant to paragraphs 1 to 6a of Article 2, the reasonable period of time shall be deemed to elapse on the date on which the first expiry review following such transition is initiated.

Where existing anti-dumping measures are based on a normal value calculated pursuant to the former Articles 2(7)(a) or 2(7)(b) of Regulation (EU) 2016/1036, the methodology of paragraph 6a of Article 2 shall not replace the original methodology used for the determination of the normal value until the date on which the first expiry review of those measures, following the entry into force of Regulation ..., is terminated.

Text proposed by the Commission

Amendment

In the case of a transition from a normal value calculated pursuant to the former Articles 2(7)(a) or 2(7)(b) to a normal value calculated pursuant to paragraphs 1 to 6a of Article 2, any review pursuant to this paragraph shall be deferred to the date on which the first expiry review following such transition is initiated.

Where existing anti-dumping measures are based on a normal value calculated pursuant to the former Articles 2(7)(a) or 2(7)(b) of Regulation (EU) 2016/1036, the methodology of paragraph 6a of Article 2 shall not replace the original methodology used for the determination of the normal value until the date on which the first expiry review of those measures, following the entry into force of Regulation ..., is terminated.

Present text

Amendment

(5a)  In Article 16, paragraph 1 is replaced by the following:

‘1. The Commission shall, where it considers it appropriate, carry out visits to examine the records of importers, exporters, traders, agents, producers, trade associations and organisations and to verify information provided on dumping and injury. In the absence of a proper and timely reply the Commission may choose not to carry out a verification visit.’

"1. The Commission shall, where it considers it appropriate, send experienced agents to carry out visits to examine the records of importers, exporters, traders, agents, producers, trade associations and organisations and to verify information provided on dumping and injury. In the absence of a proper and timely reply the Commission may choose not to carry out a verification visit.’

Present text

Amendment

(5b)  In Article 18, paragraph 1, subparagraph 1 is replaced by the following:

‘In cases in which any interested party refuses access to, or otherwise does not provide, necessary information within the time limits provided for 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.

"In cases in which any interested party refuses access to, or otherwise does not provide, necessary information within the time limits provided for in this Regulation, or significantly impedes the investigation, provisional or final findings shall be made on the basis of the best facts available.

Present text

Amendment

(5c)  In Article 18, paragraph 1, subparagraph 3 is replaced by the following:

‘Interested parties shall be made aware of the consequences of non-cooperation.’

‘Interested parties shall be made aware of the consequences of non-cooperation and shall be listed in a register whose use will enable the Commission and the partner countries to focus more attention on the activities of those parties.’

Text proposed by the Commission

Amendment

(5d)  The following annex is inserted:

"Annex -I

1. Convention concerning Forced or Compulsory Labour, No 29 (1930)

2. Convention concerning Freedom of Association and Protection of the Right to Organise, No 87 (1948)

3. Convention concerning the Application of the Principles of the Right to Organise and to Bargain Collectively, No 98 (1949)

4. Convention concerning Equal Remuneration of Men and Women Workers for Work of Equal Value, No 100 (1951)

5. Convention concerning the Abolition of Forced Labour, No 105 (1957)

6. Convention concerning Discrimination in Respect of Employment and Occupation, No 111 (1958)

7. Convention concerning Minimum Age for Admission to Employment, No 138 (1973)

8. Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour, No 182 (1999)."

Text proposed by the Commission

Amendment

The Commission shall also offer consultations to the country of origin and/or export concerned with regard to other subsidies identified in the course of the investigation. In these situations, the Commission shall send to the country of origin and/or export a summary of the main elements concerning other subsidies, in particular those referred to in point (c) of paragraph 2 of this article. If the additional subsidies are not covered by the notice of initiation, the notice of initiation shall be amended and the amended version be published in the Official Journal of the European Union, inviting all interested parties to comment.

The Commission shall also offer consultations to the country of origin and/or export concerned with regard to other subsidies identified in the course of the investigation. In these situations, the Commission shall send to the country of origin and/or export a summary of the main elements concerning other subsidies, in particular those referred to in point (c) of paragraph 2 of this article. If the additional subsidies are not covered by the notice of initiation, the notice of initiation shall be amended and the amended version be published in the Official Journal of the European Union. All interested parties shall be given additional and sufficient time to comment.

Text proposed by the Commission

Amendment

(a)  In case it is determined, when applying this provision or any other relevant provision of this Regulation, that it is not appropriate to use domestic prices and costs in the exporting country due to the existence of significant distortions, the normal value shall be constructed on the basis of costs of production and sale reflecting undistorted prices or benchmarks. For this purpose, the sources that may be used include undistorted international prices, costs, or benchmarks, or corresponding costs of production and sale in an appropriate representative country with a similar level of economic development as the exporting country, provided the relevant cost data are readily available. The constructed normal value shall include a reasonable amount for administrative, selling and general costs and for profits.

(a)  In case it is determined that it is not appropriate to use domestic prices and costs in the exporting country due to the existence of significant distortions in the economy as a whole or in sectors of the economy, the normal value shall be based on a price or be constructed on the basis of costs of production and sale reflecting undistorted prices or benchmarks for every factor of production. For this purpose, the sources that may be used include undistorted international prices, costs, or benchmarks, or corresponding costs of production and sale in an appropriate representative country, including those in the Union, and with sufficient level of international social and environmental standards, provided the relevant data are readily available. The constructed normal value shall include a reasonable amount for administrative, selling and general costs and for profits.

Where an exporter can clearly demonstrate that its prices or costs of all factors of production are not affected by significant distortions, those prices or costs shall be used in the construction of its normal value.

Text proposed by the Commission

Amendment

(b)  Significant distortions for the product concerned within the meaning of point (a) may be deemed to exist, inter alia, when reported prices or costs, including the costs of raw materials, are not the result of free market forces as they are affected by government intervention. In considering whether or not significant distortions exist regard may be had, inter alia, to the potential impact of the following: the market in question is to a significant extent served by enterprises which operate under the ownership, control or policy supervision or guidance of the authorities of the exporting country; state presence in firms allowing the state to interfere with respect to prices or costs; public policies or measures discriminating in favour of domestic suppliers or otherwise influencing free market forces; and access to finance granted by institutions implementing public policy objectives.

(b)  Significant distortions within the meaning of point (a) may be deemed to exist, inter alia, when reported prices or costs, including the costs of raw materials and others factors of production, are not the result of free market forces as they are affected by state intervention at any level. In considering whether or not significant distortions exist regard shall be had, inter alia, to the potential impact of the following:

the market in question is to a significant extent served by enterprises which operate under the ownership, control or policy supervision or guidance, whether directly or indirectly (such as public bodies), of the authorities of the exporting country; state presence in firms allowing the state to interfere with respect to prices or costs; public policies or measures discriminating in favour of domestic suppliers for example through the use of state-fixed prices, or discrimination in the tax, trade or currency regimes; or otherwise influencing free market forces, including the allocation of resources; the absence of a transparent and non-discriminatory company law which ensures adequate corporate governance, such as the application of international accounting standards, protection of shareholders and public availability of accurate company information; the absence and implementation of a coherent, effective and transparent set of laws which ensure the respect of property rights and the operation of a functioning bankruptcy regime; the absence of a genuine financial sector which operates independently from the state and which in law and practice is subject to sufficient guarantee provisions and adequate supervision; lack of compliance with international social and environmental standards having as result an impact on costs production;

Text proposed by the Commission

Amendment

(ba)  Significant distortions for the product concerned within the meaning of point (a) shall be deemed to exist, inter alia, when reported prices or costs are the result of overcapacities in the sense that the price or the cost of the product is not the result of free market forces as they are affected by levels of overproductions which reduce the impact of fixed costs.

Text proposed by the Commission

Amendment

(c)  When appropriate, the Commission services may issue a report describing the specific situation concerning the criteria listed in point (b) in a certain country or a certain sector. Such report and the evidence on which it is based may be placed on the file of any investigation relating to that country or sector. Interested parties shall have ample opportunity to supplement, comment or rely on the report and the evidence on which it is based in each investigation in which such report or evidence is used. The determinations made shall take into account all of the relevant evidence on the file.

(c)  The Commission shall issue, as soon as possible, a public report describing the specific situation concerning the criteria listed in points (b) in a certain country or a certain sector. Inter alia, the report shall, where appropriate, include information on the compliance with international environmental and social standards that affect the cost production. Such report and the evidence on which it is based, as well as relevant findings from prior Union investigations and country reports, shall be placed on the file of any investigation relating to that country or sector. Interested parties, including trade unions and SMEs, shall have ample opportunity to supplement, comment or rely on the report and the evidence on which it is based in each investigation in which such report or evidence is used. The Commission shall inform the European Parliament and the Council accordingly. The determinations made shall take into account all relevant evidence on the file, based on reliable, secure and timely information and data available. The report or the evidence on which it is based shall be updated by the Commission on a regular basis at least every five years or whenever the situation concerning the criteria laid down in point (b) have changed.

Text proposed by the Commission

Amendment

(d)  The Union industry may rely on the report referred to in point (c) for the calculation of normal value when filing a complaint in accordance with Article 5 or a request for a review in accordance with Article 11.

(d)  The Union industry and trade unions may rely on the report referred to in point (c) for the calculation of normal value when filing a complaint in accordance with Article 5, request for a review in accordance with Article 11 or request for a reinvestigation in accordance with Article 12. That report shall constitute sufficient evidence to justify the calculation of normal value in the complaint or request on the basis of the methodology specified in paragraph 6a. Furthermore, where a significant portion of the complaining Union industry is made up of SMEs, the normal value calculations in the complaint or request may be based on information related to costs of production in the Union of the product concerned.

Text proposed by the Commission

Amendment

(e)  The parties to the investigation shall be informed shortly after initiation about the relevant sources that the Commission intends to use for the purpose of point (a) and shall be given 10 days to comment. For this purpose, interested parties shall be given access to the file, including any evidence on which the investigating authority relies, without prejudice to Article 19.

(e)  The parties to the investigation, including trade unions and SMEs, shall be informed shortly after initiation about the relevant sources that the Commission intends to use for the purpose of point (a) and shall be given 10 days to comment. For this purpose, interested parties shall be given access to the file, including any evidence on which the investigating authority relies, without prejudice to Article 19. A disclosure regarding the methodology to be used shall be communicated to the parties no later than three months from initiation of the investigation.