Market protection
IMPACT OF EU ACCESSION ON MARKET PROTECTION
1. European Customs Union and Market Protection.
At the moment of accession to the EU, Poland and other new Member States joined the customs union which previously included all EU Member States as well as Turkey, Andorra and San Marino.
The customs union covers trade in all goods and it is based on a ban on the application of import and export duties, and any other charges having similar effects, between the EU Member States as well as the Common Customs Tariff applicable to trade relations with third countries. Poland has also adopted an extended version of the Common Tariff, or TARIC (Integrated Tariff of the Communities).
The trade relations between the EU Member States are carried out without any tariff and non-tariff barriers or any other barriers (physical, technical and fiscal). This allows Polish entrepreneurs to take advantage of the opportunities afforded by the internal market, which ensures the free movement of goods.
In order to strengthen the effects of the customs union in the trade exchange between the EU and third countries, many common trade instruments are being relied upon. These rules are applied in line with the rules adopted at the international level, such as agreements entered into under the auspices of the WTO.
The Treaty establishing the EC provides for the basic rules of establishing and maintaining trade relations with partners from outside the EU. In accordance with the Treaty, the uniform rules of the common trade policy concern, among others:
- modifying customs duty rates,
- concluding customs and trade agreements,
- implementing an export policy,
- liberalizing the access to the EU market,
- implementing trade protection measures, especially with respect to subsidized imports or imports of products at dumping prices.
Thus, the changes in the market protection system, pertaining above all to the excessive import of products and/or their subsidized import or their import at dumping prices, constitute the most significant consequences of accession for Polish entrepreneurs.
Moreover, as of 1 May 2004, the responsibility for shaping the trade relations with third countries has been transferred from the Polish governmental administration to the relevant community bodies. Hence, Poland participates in the process of determining the common trade policy, mainly through its representatives contributing to the work of various EU bodies (the EU Council, Committee of Permanent Representatives - COREPER, Article 133 Committee).
2. Protection against unfair and excessive imports provided for in EU legislation.
The acquis communautaire, or the body of European laws, in the area of external trade relations includes mainly regulations and decisions of the Commission and the EU Council (which are directly applicable in the legal orders of all Member States), as well as international agreements concluded by the Community and its Member States.
On the day of accession of Poland to the EU, all the above-mentioned regulations and decisions automatically became a part of the Polish legal system.
2.1 Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community
As of 1 May 2004, Polish entrepreneurs may lodge – directly or through relevant state bodies – a complaint to the European Commission, if they acknowledge that the economy of the newly-enlarged EU suffers losses due to dumped imports. Antidumping duty may be imposed on every product, if its export price to the EU is lower than a comparable price for the “like product”, in the ordinary course of trade, as established for the exporting country. A like product is a product which is identical or which is alike in all respects to the product under consideration, or in the absence of such a product, another product which, although not alike in all respects, has characteristics closely resembling those of the product under consideration.
For the complaint to be effective, it must be supported by more than a half of all Community producers of the like product expressing their views with respect to the complaint. However, the Community producers expressly supporting the complaint must account for at least 25% of the total Community production of the like product.
The complaint ought to include evidence of dumping, injury and a causal link between the dumped imports and the alleged injury.
2.2 Council Regulation (EC) No 2026/97 of 6 December 1997on protection against subsidized imports from countries not members of the European Community
A specific type of countervailing measures (countervailing duties) has been introduced to the acquis communautaire for the purpose of offsetting the subsidies granted for the manufacture, production, export or transport of any products imported to the EU from a third country. A necessary condition for the imposition of countervailing duties is evidence that the release of such products for circulation in the Community causes injury. The term injury means material injury or the threat of material injury to the Community industry, or material retardation of the establishment of such a Community industry. The terms community industry means all Community producers of the like product or those producers whose combined output constitutes a major proportion of total Community production of the products in question. However, it ought to be borne in mind that there exist certain exceptions from the above rules.
The Regulation specifies also the entities entitled to institute examination procedures, the manner of the performance of the latter and their consequences.
2.3 Council Regulation (EC) No 3285/94 of 22 December 1994 on the common rules for imports
This regulation sets forth the conditions under which the Community is entitled to apply surveillance and safeguard measures. If an industry suffers injury or is under threat of injury, the safeguard measures provided for in the said Regulation may present an alternative to other trade protection instruments, such as anti-dumping or anti-subsidy measures, since the right to impose safeguard measures is not conditioned by the occurrence of unfair trade practices.
2.4 Council Regulation (EC) N 3286/94 of 22 December 1994 laying down Community procedures in the field of the common commercial policy in order to ensure the exercise of the Community's rights under international trade rules, in particular those established under the auspices of the World Trade Organization.
The Council Regulation (EC) No. 3286/94/EC of 22 December 1994 sets forth a legal instrument (the so-called TBR complaint) which provides a tool for counteracting trade practices (prohibited by international trade rules) adopted or maintained by a third country, which practices cause or threaten to cause obstacles to trade and have or may have a material impact on the economy of the Community or of a region of the Community, or on a sector of economic activity therein.
Obstacles to trade may consist in legislative actions of a public authority body or in a negligence of such public bodies (non-transposition, non-implementation and non-enforcement of necessary legislation). Obstacles to trade may also consist in actions of private entities supported or tolerated by public authorities.
3. Protective measures in the context of EU enlargement
In view of the fact that the accession of the new Member States to the EU resulted in the spread of the internal market principles onto the territories of these countries, the EU Accession Treaty now includes provisions concerning distortions and difficulties which may arise from a different scope of legal protection in the new and old EU Member States.
Articles 37 and 38 of the Act of Accession lay down the rules for different types of protective measures which are to be implemented in certain circumstances to rectify the situation and protect the interests of the old and new EU Member States against any “side effects” of enlargement. Such instruments (i.e. protective measures pertaining to economic difficulties in a particular sector as well as a non-implementation of commitments undertaken in connection with accession negotiations) aim at providing the Community industry with useful tools for the purpose of rectifying economic difficulties resulting from enlargement or the failure of new Member States to properly implement their accession commitments.
source: PAIiIZ
