Transcript International Trade Law Lecture 1: International

“
International Trade Law
Common commercial policy EU
(Lecture 13)
”
Prof.ssa M.E. de Leeuw, Ph.D., Dr., Università di Ferrara
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International Trade Law
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E-mail: [email protected]

Place: Via Ercole I d’Este 37, class 6
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Cell: 333-2059733
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Lezioni: Tuesday and Thursday
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Question hour: Tuesday 13.00-14.00
(after class, same room)
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Time: 11.00-13.00
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Requirement: commercial law ”
Crediti: 6
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Course Website:
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

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.
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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.
CCP: The scope and competence
“


Wide Scope ratione materiae art. 207(1) TFEU
provides for non-exhaustive list of instruments
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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)
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
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. EU partial trade embargo against Serbia and Montenegro (1992)
The
principles
underlying
CCP
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Principle of uniformity
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Principle of assimilation
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Principle of non-discrimination?
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Two types of legal instruments CCP
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Autonomous EU measures: e.g. Regulation
2603/69/EEC laying down common rules for exports
(import quotas), 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).
Main
legal
instruments
CCP
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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)
The external custom tariff
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Council Reg. 2913/92/EEC creating Common Custom Code
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Calculate Custom duty of imported product from third
country:
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Determine “Combined Nomenclatura”
(industrial/agriculture; shoes with leather or rubber sole
”
etc..)
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Determine origin- classify as non-preferential or
preferential origin.
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Determine value of the product (shoe value 5 euro, levy
is 4.1%= pay x per shoe)
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Calculation of import duty to be paid.
Regulation 260/2009 on common rules for
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imports (quantity)
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
Rule: Products from third countries may be freely imported in
EU and may not be subject to quantitative restrictions.
Exceptions:
 Surveillance and safeguard measures:
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 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…
Unfair trade practices:
anti-dumping (I)
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Unfair trading: anti-dumping, anti-subsidy and safeguard
measures.
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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
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EU anti-dumping Regulation 1225/2009;
Anti-dumping
investigation
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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.)
Dumping, injury and EU interest
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Imports must be dumped: Determine the normal value/export price;
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Dumping margin= fair comparison between normal value and export price
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Determine injury:
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a) effect on volume (increase in dumped product) and effect on prices (undercutting price);
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b) impact of such imports on domestic producers of those products
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Determine causal link and Community interest:
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Impose measures: duties ad valorem,specific or variable duties
”
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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”.
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Council Regulation 597/2009
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
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).
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.
Trade
barrier
Regulation
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
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..
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Possible to adhere to WTO against foreign trade barriers.
Decision-making
in
the
CCP
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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.
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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….
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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))
WTO
MFN
rule
and
exception
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
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.
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Two conditions:
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no increase in trade barriers against third parties
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lead to elimination of tariffs and non-tarifs barriers on trade between
MS countries
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The EU trade pyramid of trade
preferences*
EU
Membership
Association
agreements
Free trade areas
Non-reciprocal preferences
(GSP, EBA)
*Source:
P.Conconi
MFN treatment
”