1. ” “ International Trade Law Common commercial policy EU (Lecture 13) Prof.ssa M.E. de Leeuw, Ph.D., Dr., Università di Ferrara

2. ” “ International Trade Law  E-mail : dlwmdl@unife.itdlwmdl@unife.it  Cell: 333-2059733  Question hour : Tuesday 13.00-14.00 (after class, same room)  Course Website : Internal Trade Law (in lingua inglese) Internal Trade Law (in lingua inglese) http://www.unife.it/giurisprudenza/giuri sprudenza/studiare/International%20Tr ade%20Law%20%28in%20lingua%20i nglese%29%20  Place : Via Ercole I d’Este 37, class 6  Lezioni : Tuesday and Thursday  Time : 11.00-13.00  Requirement : commercial law  Crediti : 6

3. ” “ The EU and world trade  EU is the worlds largest exporter (14,7%), and second largest importer of goods (15,4%);  EU is the first trader of commercial services (exports 24,8% and 20,1% imports).  EU members are 7% of world population; provide about 1/5 of global import and export.

4. ” “ The Common commercial policy Part V (Title II) TFEU Art.206 TFEU:  ”By establishing a customs union in accordance with Articles 28 to 32, the Union shall contribute, in the common interest, to the harmonious development of world trade, the progressive abolition of restrictions on international trade and on foreign direct investment, and the lowering of customs and other barriers.” Art. 207(1) TFEU:  “The common commercial policy shall be based on uniform principles, particularly with regard to changes in tariff rates, the conclusion of tariff and trade agreements relating to trade in goods and services, and the commercial aspects of intellectual property, foreign direct investment, the achievement of uniformity in measures of liberalisation, export policy and measures to protect trade such as those to be taken in the event of dumping or subsidies. The common commercial policy shall be conducted in the context of the principles and objectives of the Union's external action.

5. ” “ CCP: The scope and competence  Wide Scope ratione materiae  art. 207(1) TFEU provides for non-exhaustive list of instruments  EU has exclusive competence to legislate in the area of CCP and to conclude international agreements with IOs and third states (art. 3 and 207(3) TFEU)

6. ” “ CCP and non-commercial objectives  Trade policy has to be used to attain non-economic objectives, like human rights, good governance, environmental protection, sustainable development (art. 21 and 205 TFEU);  E.g trade agreements include a human right clause;  Role for EP to insert those objective in trade agreements;  Trade restrictions used for foreign policy reasons;  E.g. Syria Council Decision 2013/255/CFSP (OJ L 147, 1.6.2013, p. 14)

7. ” “ embargo on certain goods which might be used for the manufacture and maintenance of products which could be used for internal repression - ban on provision of certain related services - control of export of certain other goods which might be used for the manufacture and maintenance of equipment which might be used for internal repression - control of provision of certain services - import ban on arms and related materiel - ban on provision of certain related services - embargo on telecommunications monitoring and interception equipment - ban on provision of certain services (related to such equipment) - import ban on crude oil and petroleum products - ban on provision of certain services (related to crude oil and petroleum products) - embargo on key equipment and technology for the oil and natural gas industries - ban on provision of certain services (to the oil and natural gas industries) - ban on provision of new Syrian banknotes and coins - ban on trade in gold, precious metals and diamonds with the Government of Syria - embargo on luxury goods - ban on certain investment (in the oil and natural gas industries, in construction of power plants for electricity production) - prohibition to participate in the construction of new power plants for electricity production - restraint on commitments for public and private financial support for trade with Syria and ban on new long term commitments of Member States - ban on new commitments for grants, financial assistance and concessional loans to the Government of Syria - prohibition for the European Investment Bank to make certain payments - restrictions on issuance of and trade in certain bonds - restrictions on establishment of branches and subsidiaries of and cooperation with Syrian banks - restrictions on provision of insurance and re-insurance - restrictions on access to airports in the EU for certain flights - inspection of certain cargoes to Syria and prior information requirement on cargoes to Syria - restrictions on admission of certain persons - freezing of funds and economic resources of certain persons, entities and bodies - prohibition to satisfy claims made by certain persons, entities or bodies - valid until 1.6.2015 Syria Council Decision 2013/255/CFSP (OJ L 147, 1.6.2013, p. 14)

8. ” “ The principles underlying CCP  Principle of uniformity  Principle of assimilation  Principle of non-discrimination?

9. ” “ Two types of legal instruments CCP  Autonomous EU measures: e.g. Regulation 2603/69/EEC laying down common rules for exports, anti-dumping duties and other protective measures…  International agreements: art. 207(3) TFEU attributes to the EU the competence to conclude treaties in CCP field with third counties and IOs (art. 218).

10. ” “ Main legal instruments CCP  Tariff: Common Custom Tariff (exceptions PTAs)  Non-tariff barriers/quotas: common rules on import and export:  Surveillance and safeguard measures;  Exceptions to “free import” to protect certain public interests (….)  Anti-dumping and anti-subsidy  Export subsidy  Technical barriers to trade (WTO TBT Agreement)  EU external policy in services (GATS)  EU protection of intellectual property rights (TRIPS)

11. ” “ The external custom tariff (Reg 952/2013 Union Custom Code (before Reg. 450/2008 Common Custom Code),  Calculate Custom duty of imported product from third country:  Determine “Combined Nomenclatura” (industrial/agriculture; shoes with leather or rubber sole etc..)  Determine origin- classify as non-preferential or preferential origin.  Determine value of the product (shoe value 5 euro, levy is 4.1%= pay x per shoe)  Calculation of import duty to be paid.

12. ” “ Regulation 260/2009 on common rules for imports (quantity)  Rule: Products from third countries may be freely imported in EU and may not be subject to quantitative restrictions.  Exceptions:  Surveillance and safeguard measures:  Trends in import that threatens to cause injury to EU producers: surveillance measures;  Product is imported in such increased quantities as to cause or threaten to cause serious injuries to producers: safeguard measures.  MS may impose prohibitions or take quantitative restrictions and surveillance measures on grounds of public morality, public policy or public security, the protection of human lifes etc…

13. ” “ Unfair trade practices: anti-dumping (I)  Unfair trading: anti-dumping, anti-subsidy and safeguard measures.  Art.VI GATT/Anti-Dumping Agreement: The contracting parties recognize that dumping by which products of one country are introduced into the commerce of another country at less than the normal value of the products, is to be condemned if it causes or threatens material injury to an established industry in the territory of a contracting party or materially retards the establishment of domestic industry  EU anti-dumping Regulation 1225/2009;

14. ” “ Anti-dumping investigation The investigation will examine whether:  Imports must be dumped- dumping is taking place from the country/countries concerned (art. 2 Reg.)  material injury has been suffered by the Community industry (art. 3, 4 Reg.)  the dumping is causing the injury: causal link (art. 3(5) Reg.)  it is not against the economic interests of the EU to impose measures (which are usually in the form of an anti-dumping duty) (art. 9(4) Reg.)

15. ” “ Dumping, injury and EU interest  Imports must be dumped: Determine the normal value/export price;  Dumping margin= fair comparison between normal value and export price  Determine injury:  a) effect on volume (increase in dumped product) and effect on prices (undercutting price);  b) impact of such imports on domestic producers of those products  Determine causal link and Community interest:  Impose measures: duties

16. ” “ Unfair trade practices: Anti-subsidy (II)  Art. VI GATT/Subsidy and counter measure agreement: “No countervailing duty shall be levied on any product of the territory of any contracting party imported into the territory of another contracting party in excess of an amount equal to the estimated bounty or subsidy determined to have been granted, directly or indirectly, on the manufacture production or export of such product in the country of origin or exportation, including any special subsidy to the transportation of a particular product”.  Council Regulation 597/2009

17. ” “ Subsidy, injury and EU interest  A subsidy is “a financial contribution by government in the country of origin or any form of income or price support by which a benefit is conferred” (art.3 Reg.).  Annex I contains an illustrative list of export subsidies (….).  countervailing duty may be imposed where the subsidy causes injury in the EU (art. 1(1), but only in case of subsidies that are specific to an enterprise or industry (art. 4).  The amount of the countervailing subsidy is the benefit conferred upon the recipient of the subsidy (art. 5).

18. ” “ Figures about EU use of trade defense measures In 2011 (30rd annual report):  117 AD and 10 AS measures in force in EU;  0.25% of total import was subject to trade defense measures;  21 new investigations were started: 17 AD and 4 AS (8 against China).11 concluded with definite duties (mostly to China)  New investigations regard products: chemicals, iron and steel, other metals and others.

19. ” “ Trade barrier Regulation  Commission investigates restrictions on export of EU goods and services abroad (all kind of barriers).  If there is a barrier to trade, and action is necessary, the Regulation allows to adopt any type of measure: raise custom duty, quantative restrictions, withdrawal of concessions..  Possible to adhere to WTO against foreign trade barriers.

20. ” “ Decision-making in the CCP  The Commission:  responsible for the day to day administration of trade policy, not involving legislative acts or int. trade agreements, in consultation with the art. 133 Committee (and involvement of comitology committees); e.g. changes to tariffs, investigations in anti-dumping…;  represents EU in WTO;  negotiator of international trade agreements;  starts dispute settlement procedures under international trade agreements.  The Council and EP:  adopt jointly regulations in accordance with ordinary legislative procedure for taking the measures to implement CCP; e.g. Regulation on the common rules for import, regulations laying down anti-dumping measures and anti-subsidy….  The Council:  concludes international agreements art. 218 (5/6); EP consulted (art. 207(3) or gives assent in a number of int. agreements, art. 218 (6))

21. ” “ WTO MFN rule and exception  Art. 1 WTO: most favoured nation (MFN) principle: all WTO members should receive from any given country the same trade preferences accorded to the partner that receives the best (most-favoured) treatment.  Art. XXIV WTO: exception to MFN principle for countries that sign regional trade agreements in the form of custom union or FTA.  Two conditions:  no increase in trade barriers against third parties  lead to elimination of tariffs and non-tarifs barriers on trade between MS countries

22. ” “ The EU trade pyramid of trade preferences* EU Membership Association agreements Free trade areas Non-reciprocal preferences (GSP, EBA) MFN treatment *Source: P.Conconi