Diritto Amministrativo, Pubblico Comunitario
Nctm, con una vasta esperienza nel settore del diritto amministrativo nazionale e comunitario, fornisce agli operatori economici privati e pubblici qualificata assistenza specialistica in tutte le aree di attività nelle quali la disciplina pubblicistica interferisce con le iniziative economiche.
Il dipartimento di diritto amministrativo e di diritto pubblico comunitario, in stretto collegamento con gli altri dipartimenti dello Studio, svolge a favore di imprese e di enti pubblici attività di consulenza stragiudiziale e attività di patrocinio nei giudizi innanzi agli organi giurisdizionali nazionali e comunitari.
Il lavoro del dipartimento ha ad oggetto le questioni inerenti ai rapporti tra impresa e pubblica amministrazione e si estende ai settori del diritto pubblico dell’economia e alla disciplina delle attività regolamentate.
- appalti pubblici di lavori, servizi e forniture, project financing per la realizzazione di opere pubbliche;
- procedimenti di gara comunitari, fondi di sviluppo europeo, programmi europei di assistenza;
- public utilities e società miste per la gestione dei servizi pubblici;
- edilizia ed urbanistica;
- tutela del paesaggio e dell’ambiente;
- assistenza giudiziale in relazione ai provvedimenti delle Autorità indipendenti;
- diritto sanitario e farmaceutico;
- diritto agro-alimentare;
- espropriazioni per pubblica utilità;
- giudizi innanzi alle Corti nazionali e comunitarie.
It’s easy and also the same time it’s very important to look at the Map of Europe. It allows you to imagine the priories for the European Integration Process: free movements of goods, capital, services and people, but also transport and energy networks, a common environmental law, a common European Agriculture policy and food safety rules. All this represents the connective tissue of a European integrated economy and society, completed by a competition policy and state aid legislation which is a check and balance system for a right development of the Single Market.
What did Europe do?
A first-time foreign tourist to Europe would soon realize that something called the European Europe (EU) exists but might not understand exactly what it is. Signs at the airport in a EU Member State (by far the majority of European States and with the exemption of some states, like France, which has implemented some specific anti-terrorisms rules) would direct the visitors into the “NON-EU” line for inspections by national immigration officers (there are no EU immigration officers). Once finished with border formalities, the visitors would need to change money.
In twelve of the EU’s currently twenty-height Member States the visitors would receive euro notes and coins but in other Member States would receive national currency. Travelling around the Country, the visitors would see the distinctive EU flag prominently displayed. In the EU’s poorer regions, the visitors would notice signs adorned with the EU flag proudly proclaiming that various infrastructural projects were being found in part by EU Commission. Staying within the territory of EU, the visitor would be able to travel unimpeded across some, but not all, national borders.
A curious and discerning visitor would discover that national political systems are alive and well in the EU, but there is a complementary political system centered on Brussels, meaning in this case not the politics of Belgium, but the locus of EU policy making. National Governments, Parliaments, Courts and other bodies participate in the EU system, as do separate EU institutions such as the European Commission and the European Parliament, located in Brussels and Strasbourg, the Court of Justice located in Luxembourg and the Social and Economic Committee, as far as the Regions Committee (these last bodies are only advisory bodies). Further enquiry would reveal that a complex system of EU governance produces rules and regulations harmonizing the national legislations of the Member States, sometimes substituting them, sometimes only “point the way” to the national legislators.
All these Institutions, with the Council representing the Member States “as a whole”, created for the Europeans a unique space for live and work together.
The “European Big Market”: a way to live equally
For citizens and enterprises, the Single Market refers to the EU as one territory without any internal borders or other regulatory obstacles to the free movement of goods and services. A functioning Single Market stimulates competition and trade, improves efficiency, raises quality and helps cut prices. The European Single Market is one of the EU’s greatest achievements. It has fueled economic growth and made the everyday life of European Businesses and consumers easier.
The Single Market Strategy is the European Commission plan to unlock the full potential of the Single Market. The Single Market is the Heart of the European Project, but its benefits do not always materialize because Single Market rules are not known or full implemented, or they are undermined by other barriers. So that the Commission has decided to give the Single Market a boost by improving mobility for services provided, ensuring that innovative business models can flourish, making it easier for retailers to do business across borders and enhancing access to goods and services throughout in the EU.
The EU Single Market accounts for 500 million consumers and 21 million small and medium-size enterprises (SMEs). The Commission’s main goal is to ensure the free-movement of goods within the market, and to set high safety standards for consumers and the protection of the environment.
Services are crucial to the Single Market. They account for over 70% of all economy activity in the EU and a similar proportion of its employment. EU companies have the freedom to establish themselves in other EU countries and the freedom to provide services in countries other than the one in which they are established.
A fully functional Digital Single Market would bring many benefits to European businesses and consumers. It would promote innovation and create hundreds of thousands of new jobs. The Commission has adopted an ambitious strategy to complete the Digital Single Market that targets ICT standards and interoperability and e-commerce.
Standards are voluntary technical specification that apply to various products, materials, services and processes. They can help reduce costs, improve safety, enhance competition and facilitate the acceptance of innovation.
The Commission works to remove barriers to intra-EU trade and prevent to the creation of new ones so enterprises can trade freely in the EU and beyond. It applies Treaty rules prohibiting quantitative restrictions on imports and exports.
The Commission introduced the CE mark to indicate that a product meets high safety, health and environment protection requirements and can be sold throughout the European Economic Area.
Public Procurement is the acquisition of goods and services by public authorities such as national, regional or municipal governments. The EU works to ensure that public procurement is fair, competitive and conducive to the Single Market.
All these issues constitute the New Commission Strategy on Single Market.
It will be difficult for UK withdraw from this legal framework. Negotiations will be very intensive for all the parties, but it is clear that the cost of replicating some or all of these features in the UK will be costly both in economic and human terms.
Across the EUniverse does not wish to see the UK leave but at the same time wishes to see that the EU grows and grows in a way that will make it attractive to others as a cultural, social and economic center that will be the envy of all.
As it is known, the EC put forward an initial circular economy package in July 2014, but withdrew the legislative proposal on waste included in the package in February 2015, in order to make way for a new proposal. On 2 December 2015, the same Institution presented its new circular economy package containing a Communication and four legislative proposals on EU waste policy. This package included also an Action Plan to support the circular economy in each step of the value chain, from production to consumption, repair and manufacturing, waste management and secondary raw materials that are fed back into the economy. The Commission committed to undertake the detailed list of actions within its current mandate.
The aim of the Commission Report is “[…] to present a complete overview of the action already delivered in the implementation of the EU Action Plan since its adoption in December 2015, and to introduce key deliverables for 2017”. From a procedural point of view, the European Parliament position can be described as follows.
In its Report adopted on 24 January 2017, the Committee on Environment, Public Health and Food Safety (ENVI) proposes to raise the ambition of the targets; to introduce separate targets for reuse, food waste, marine litter and waste oils; to introduce a single circular method; and to make derogation for individual MS subject to stricter conditions. The Report also reinforce the implementation of the waste hierarchy, make extended producer responsibility mandatory for specific waste streams, and strengthen requirements related to separate waste collection. The Committee on Industry, Research and Energy (ITRE) adopted its opinion on 13 October 2016. Votes on Proposals are take place during the last Plenary Session on 14 March 2017. The amendments adopted are relating to the proposal for a Directive amending Directives 2000/53/EC on end-of-life vehicles, 2006/66/EC on batteries and accumulators and waste batteries and accumulators, and 2012/19/EU on waste electrical and electronic equipment.
The Council is said to be close to reaching a common understanding on the Proposals, which are among the Maltese Presidency’s priorities and thus can be expected before the end of June 2017.
2017 is also a crucial year to develop a policy dialogue with stakeholders. In the occasion of the Inter-Institutional Stakeholders Conference on Circular Economy held in Brussels on 9-10 March, the Commission and the European Economic and Social Committee will launch a circular economy stakeholders platform.
During 2016 the European Commission has put in place a number of key initiatives to support the circular economy. These initiatives cover the full value chain, from production to consumption, waste management and use secondary raw materials. They are presented below in chronological order of their completion. The proposals presented are concerning: Online sales of goods (December 2015); Fertilisers (March 2016); Ecodesign (November 2016); Food waste (December 2016); Waste-to-Energy (January 2017) and the Proposal to amend the Directive on the restriction of the use of certain hazardous substances in electrical and electronic equipment (January 2017).
Two issues are approached by the Commission in a special way: the Platform to support the financing of circular economy (January 2017), and the Green Public Procurement.
Relating to the first issue, together with the Report on the Implementation the Commission launched a platform with the European Investment Bank (EIB), financial market participants and business to increase awareness of the circular economy business logic and improve the uptake of circular economy projects by investors. While the business case for the circular economy is clear, this message still has to reach s good part of businesses in the EU and of the financial and banking sector.
New Green Public Procurement criteria was published by the Commission in 2016 for office buildings, for roads and for computers and monitors. These can be used by public authorities on a voluntary basis, and include requirements relevant to the circular economy. For examples, computers and monitors have to be designed so that they can be repaired with commonly available tools and that batteries can be easily replaces, and the possibility to upgrade them is rewarded. The used of recycled materials for the construction of roads and buildings is encouraged. As public procurements accounts for a large proportion of European consumption the inclusion of requirements related top circularity in public authorities purchasing will play a key role in the transition towards a circular economy.
The European Commission adopted some other new texts in five sectors.
The first one is a “stepping up enforcement “of the revised Waste Shipment Regulation. On July 2016, the Commission adopted an implementing act setting out a preliminary correlation table between customs and waste codes. This new tool will help customs officials identify waste crossing EU borders illegally, for instance labelled as second-hand goods. It will strengthen the enforcement of the Waste Shipment Regulation and will help to prevent the leakage of valuable raw materials out of the EU.
Separate waste collection across EU Member States is a good practice that Commission has identify throughout 2016 reviewing the state of implementation of separate collection, including an assessment of the legal framework and the practical implementation of separate collection systems. Based on this assessment, the review led to a set of recommendations addressing different levels of decision-making. The recommendations have been discussed with stakeholders and EU Member States in a conference held on 29 January 2016. In addition, Horizon 2020 is supporting this work stream by financing a number of concrete projects in this area.
Relating to the water reuse, in June 2016, guidelines were issued under the Common Implementation Strategy from the Water framework Directive with the aim to better integrate water reuse in water planning and management. “As water scarcity has worsened in some parts of the EU, the reuse of treated wastewater in safe and cost-effective conditions is valuable but under-used means of increasing water supply and alleviating pressure on resources. Facilitating water reuse in agriculture will also contribute to recycling of nutrients by substitutions of solid fertilisers”.
On November 2016, the Commission proposed an industry-wide voluntary protocol on the management of construction and demolition waste. The aim of the protocols is to improve the identification, source separation and collection of waste, as well as logistics, processing, and quality management. The protocol will this thus increase trust in the quality of recycled materials and encourage their use in the construction sector.
Based on volume, construction and demolition waste is the largest waste stream in the EU. The Waste Framework Directive 2008/98/EC establishes a target of 70% of construction and demolition waste to be recovered by 2020. However the potential for reuse and recycling of this waste stream is not being fully exploited. One obstacle is the lack of confidence in the quality of construction and demolition recycled materials. Horizon 2020 is also supporting several innovation projects in this area.
The recast of the Renewable Energy Directive as part of the package on Clean Energy package was the occasion for the European Commission for adopting sustainability criteria for all bioenergy uses. In order to limit pressure on limited biomass resources, the Commission proposed that only efficient convention of biomass to electricity should receive support. This will facilitate synergies with the circular economy in the uses of biomass and particularly wood, which can be used for a range of products as well as for energy.
The 2017 Commission Work Programme confirms the full commitment to ensure the timely implementation of the Circular Economy Action Plan. During this year, the Commission will propose a Plastic Strategy to improve the economics, quality and uptake of plastic recycling reuse, to reduce plastic leakage in the environment and to decouple plastics production form fossil fuels.
The Commission will also put forward a detailed analysis of the legal, technical or practical problems at the interface of chemical, product and waste legislation that may hinder the transition of recycled material into the productive economy. In particular, the Commission will consider options to improve information but substances of concern in products and waste, and options to facilitate the management of substances of concern found in recycled materials. The objective is not only to promote non-toxic material cycles, but also enhance the uptake of secondary raw materials.
The Commission will also come forward with a legislative proposal on minimum quality requirements to promote the safe reuse of treated waste water, while ensuring the health and environmental safety of water reuse practices and free trade of food products in the EU.
The monitoring framework assessing the progress of the circular economy in the EU and its Member States will also presented in 2017 .
Circular Economy is a reality with benefits for all Europeans. The consistent delivery of the Action Plan and a swift adoption of the legislative proposals on waste and fertilisers will help to bring clear directions to investors and support the transition.
 See Across The EUniverse, number eleven, April 2016 “Circular Economy – More Flexible Law: The 2015 Legislative Package”.
 COM(2015)0593 – C8-0383/2015-2015/0272(COD). Ordinary legislative procedure: first reading.
 A sixth sector is the object of a revised text relating to the Updated Guidance on Unfair Commercial Practices Directive ( Directive 2005/29/EC, in OJEU L 149 – 11.5.2005 ). On May 2016 the Commission adopted a revised version of its guidance which includes specific elements to make green claims more trustworthy and transparent.
 Horizon 2020 is the biggest EU Research and Innovation program ever with nearly €80 billion of funding available over 7 years (2014 to 2020) – in addition to the private investment that this money will attract. It promises more breakthroughs, discoveries and world-firsts by taking great ideas from the lab to the market.
 OJEU L 327, 22.10 2000.
 “ Using historical data, expert judgment and multivariate analysis according to the Water Framework Directive”, in marine Pollution Bulletin, vol. 55.issue 1-6, 2007, p.28.
 Directive 2009/28/EC, in OJEU L 140, 5.6.2009
 In 2017 the implementation of the Ecodesign working plan will have an increased focus on circular economy and resources efficiency beyond energy efficiency. The Commission will also publish the Fitness Check on EU Ecolabel and EMAS .
The Trial Implementation Plan (the “Plan”) was adopted by the State Administration of Foreign Experts Affairs of the PRC on 27 September 2016. It reforms the regime for work permits for foreigners and merges the two previously separate systems of the “Work Permit for Foreign Experts in China” (applying to certain categories of specialised foreign workers) and the “Foreigners Employment Permit” (applying to “common” employees) into one system. The outcome is the “Work Permit for Foreigners in China” (the “Work Permit”).
The Plan is restricted to the municipalities of Beijing, Tianjin and Shanghai and in the provinces of Hebei, Anhui, Shandong, Guangdong, Sichuan, Yunnan and Ningxia Hui from October, and is on trial from 2016 until March, 2017. The aim is to adopt the new system nationwide starting from April, 2017, after which working permits issued under the “old regime” will remain valid and will be converted into “new regime” permits on a voluntary basis.
The Plan splits the procedure to obtain a work permit into two main parts. Before entering China, the applicant must submit application documents through an online system for preliminary examination (the employer will need to register into the system by means of a specific procedure). Then, generally, the documents will be sent in printed format to the competent authorities in China, leading to the issuance of a “Notification Letter for Work Permit” (“Notification Letter”).
The “Notification Letter” will then be presented to the PRC embassy or consulate of the applicant’s residence in order to obtain a visa; within 15 days of entry into China, the “Notification Letter”, along with the application documents in printed format, must be submitted to apply for a Work Permit. Finally, the Work Permit will be submitted to the local Public Security Bureau (police station) to obtain a residence permit.
The new system divides applicants into three categories.
Category A (“outstanding foreign talents”) brings together, among others, persons having outstanding achievements in the fields of medicine, economics, technology, scientific research, architecture, industrial design, literature, sports, etc.; high-level personalities at certain international academic institutions, international financial institutions and international accounting firms; holders of high leadership posts in foreign government administrations, international organisations and NGOs; high level managers in foreign-invested enterprises in China belonging to the encouraged sectors of economy that fulfil certain standards in terms of revenue, employees, etc.; persons fulfilling certain remuneration standards and paying taxes for a certain amount (to be defined from time to time by the authorities); persons having invested in enterprises by means of own inventions, patents, etc..
Category B (“foreign professional talents”) mainly includes foreign professionals holding a bachelor’s degree or higher study qualification and having working experience of two years or more in the relevant field, as long as they “meet the requirements of the Guidance Catalogue for Foreigners Coming to Work in China” (a list-type document yet to be issued; it is interesting to notice that Guangdong province has had a similar document in place for some time) and are “talents needed for the social and economic development” of the country. The interpretation of these two requirements doubtlessly creates a margin of uncertainty and is possibly meant to allow “leeway” for policy changes by the Chinese government.
Category C (“ordinary personnel”) groups foreigners hired based on a permit by the Chinese government or based on agreements between the Chinese government and a foreign government, trainees under intergovernmental agreements, etc.
In addition, the Plan provides for a (provisional) table that attributes a score to individuals according to parameters such as remuneration, study and professional qualification, working experience, age, etc.. Individuals meeting a certain threshold are admitted into category A or B, according to the number of points, even though they do not belong to the groups listed in the Plan a belonging to such categories.
No restriction on the number of permits is stipulated for category A, nor are there age or working experience requirements. A so-called “green channel” treatment applies, meaning that category A individuals benefit from an accelerated procedure for issuance of a Notification Letter and of a Work Permit. Moreover, individuals falling into category A do not need to submit application documents in printed format until after they have entered into China.
Category B individuals are granted work permits “based on market demand” and will need to fulfil the requirements of the above-mentioned Guidance Catalogue; they will generally need to be 60 or younger, to hold at least a bachelor’s degree and to have at least two years’ experience in the relevant working field.
Lastly, a so-called “quota administration” applies to category C workers, meaning that permits will be granted in the maximum number stipulated by the Chinese government from time to time. No privileged application channels apply to either category B individuals or category C individuals.
On one hand, the Plan brings unification, by merging the two previously existing regimes into one system for all foreigners working in China. This entails the obvious advantages of straightening out procedures and rationalising the use of administrative resources.
The new system differentiates applicants based on the degree to which they meet the needs of Chinese economic policies. Notably, the introductory part of the Notice uses the expression “gather and put to use the talented of the world”: indeed, the Plan provides a privileged path for applicants whose skills and qualifications are especially valued.
China must become more and more competitive in attracting foreign qualified personnel – not only in comparison with other developing economies, but also in comparison with the economies of “first world” countries. The reform is aimed at “better serve overseas talent coming to work in China”, said Zhang Jianguo, the leader of the PRC State Administration of Foreign Experts; “encourage the top, control the middle and limit the bottom”, goes a slogan circulated in connection with the Plan.
On 13 March the Commission has adopted a report (hereinafter, the “Report”) on the mandatory labelling of the list of ingredients and the nutrition declaration for alcoholic beverages. The Commissioner for Health and Safety, Vytenis Andriukaitis, said: “This report supports the right of people in the European Union to be fully informed about what they drink. Moreover, it does not identify any objective grounds justifying the absence of the list of ingredients and nutrition information on alcoholic beverages. The expansion of voluntary initiatives from the sector has already been ongoing and is brought to the fore in the report”.
This Report responds to the obligation set for the Commission by Article 16(4) of Regulation 1169/2011 on the provision of food information to consumers. The Regulation establishes the basis for a high level of consumer protection in relation to food information, ensuring that consumers are not misled by food labels and can make informed choices.
Under the current rules, unlike for other foods, the indication of the list of ingredients and the nutrition declaration is not mandatory for alcoholic beverages. With the nutrition declaration having become mandatory for the vast majority of pre-packed food as of 13 December 2016, the particular situation of alcoholic beverages is now even more salient. European consumers have therefore reduced access to the nutrition declaration and to the list of ingredients with the exception of ingredients which may have an allergenic effect.
Therefore, consumers are informed only when a substance or a product, amongst those listed in the Regulation as the most common allergens, is present in alcoholic beverages, like sulphites that are often added to wine.
However, other food ingredients which were not considered for the listing of substances that could trigger allergic reactions in certain groups of consumers are not in the Regulation and would therefore not be present on the label of alcoholic beverages due to the absence of a list of ingredients.
This approach does not seem to be entirely suitable given the recognition of the importance of information and the rights of citizens to be adequately informed of what they consume.
Regarding nutritional labelling, recital 42 of the Regulation encourages food business operators to provide on a voluntary basis the information contained in the nutrition declaration for foods such as alcoholic beverages for which the possibility should be given to declare only limited elements of the nutrition declaration.
Another EU provision on the labelling of alcoholic beverages is set out in Regulation (EU) No. 1308/2013 which provides on exhaustive set of technical standards which fully cover all oenological practices, manufacturing methods and means of presentation and labelling of wines.
In view of the lack of legal action in this area, some Member States have adopted national rules requesting partial indication of ingredients for certain alcoholic drinks. Even if the provisions for the nutrition declaration are fully harmonised, some Member States are also notifying national measures addressing the nutrition declaration for alcoholic beverages. Such behaviour contributes to an increased risk of market fragmentation.
The Report shows that the sector is more and more prepared to provide responses to consumers’ expectation to know what they are drinking. This is demonstrated by the expansion of concerted or independent voluntary initiatives developed and implemented by the sector to provide consumers with information on the list of ingredients, the energy value and/or the full nutrition declaration on or off label. It has to be particularly noted that a rising number of alcoholic beverages present on the EU market already bear the full nutrition declaration.
On the basis the Report, the EU alcoholic drinks industry should propose, within a year, a harmonised approach aiming to provide consumers with information about the ingredients present in alcoholic beverages and the nutritional value of alcoholic beverages. This proposal will be assessed by the Commission. Should the Commission consider the self-regulatory approached proposed by the industry as unsatisfactory, it would then launch an impact assessment to review further available options in line with Better Regulation principles.
In line with the need of transparency on foodstuffs, the European Parliament adopted on 15 March its position on the new Regulation on Official Controls (hereinafter, the “OC Regulation”), proposed by the European Commission to increase Member States’ ability to prevent, eliminate or reduce health risks to humans, animals and plants. The OC Regulation provides a package of measures that will strengthen the enforcement of health and safety standards as an international reference for integrated rules covering the whole agri-food chain.
The new rules aim at modernising and simplifying the European control system to ensure that food in the European Union is safe along the entire agri-food chain. They overhaul the current system and will provide a single framework for all official controls.
From one hand, EU citizens will benefit from safer products and more effective and more transparency on how controls are carried out to ensure food safety and high standards for plant health, animal health and welfare and to prevent the fraud. From another hand, businesses and authorities will benefit from reduced administrative burdens and more efficient processes.
Official controls, undertaken by competent authorities in each Member State, serve to check whether these rules are correctly implemented. It consists in checks performed by Member States in order to verify that businesses comply with agri-food chain rules. These rules cover the safety and quality of food and feed and also apply to agri-food chain products entering the EU from third countries and via the Internet. Consequently, e-commerce must be part of official controls. The OC Regulation aims to tackle food fraud. This includes checking compliance against marketing standards for agricultural products. Financial penalties for fraud will need to reflect the expected economic gain or a percentage of the turnover made by fraudulent operator.
The previous regulation, adopted in 2004, initiated the integration of rules on official controls. The OC Regulation, proposed by the Commission in 2013, takes it further in providing comprehensive risk-based control rules along the agri-food chain. This will allow national authorities to put their resources where they are most needed.
The OC Regulation will enter into force 20 days after its publication in the Official Journal of the EU. The rules will be gradually phased in to give EU countries and industry the time to adapt.
This article seeks to introduce non-lawyers to the Commission’s new proposal on dumping. The circumstances are complex. The proposal is all about China and it’s not about China at all. It’s about special and general methods for calculating dumping. It’s about burdens of proof and litigation strategies. It’s about the correct interpretation of China’s WTO Accession Protocol. However, an examination of the themes underlying the Commission’s proposal reveals some simple ideas and gives guidance on how to improve it.
The Commission’s radical new thinking on dumping
The Commission proposal [COM(2016) 721final] to change the EU’s approach to the calculation of dumping is all about China and nothing to do with China at all. In fact, there’s no mention of China. This is natural given the nature of the proposal. The proposal seeks to end the EU system of classifying, in law, countries as market or non-market economies and replace it with a system of classifying countries as WTO or non-WTO.
At the same time the proposal is all about China. This is because the reflections on the functionality of the EU’s dumping methodologies came about while considering the consequences of the expiry of one sentence of Article 15 of China’s 2001 WTO Accession Protocol as well as reflections on the market distortions which are evident in China.
Under current EU law, the world is divided into market economies and non-market economies. China is defined as a non-market economy. The method for calculating the level of dumping from market economies is set out in Article 2(1) to 2(6) in the basic anti-dumping Regulation [Regulation 2016/1036] and in Article 2(7) for non-market economies (the analogue country approach). As today, China is classified as a non-market economy, the Commission uses Article 2(7) to calculate dumping from China. Under the new proposal, Article 2(7) would apply to non-WTO members only and the provisions of Article 2(1) to 2(6) would apply to all WTO Members, including China, whether or not they are market economies.
Not only is China defined in law as a non-market, it is not a market economy in reality. When it joined the WTO in 2001, China agreed that it was not a market economy. Rules were written into Article 15(d) of its WTO Accession Protocol [WT/L/432] setting out the procedure to be followed if China was to demonstrate that it had made the transition to a market economy. These rules did not expire in December 2016. China has tried in the past to demonstrate that it was a market economy to the EU, but on three occasions the EU Commission has found that China did not meet all the EU’s five criteria. In the last months, the responsible EU Commissioners have all confirmed that China is still not a market economy.
That being said, the definition of China as a non-market economy will no longer be relevant for the calculation of dumping in EU law. The issue for the Commission is the level of the distortions in any particular economy rather than how the law classifies that economy. And, as market distortions can found in all economies whatever their market classification, the Commission proposal seeks to improve the mechanisms for addressing these distortions wherever they are found.
The proposal recognises that the current text of 2(1) to 2(6), which will in the future apply to all WTO members, may not be adequate to address problems with calculating dumping from countries such as China. If the market is distorted then the costs and prices on that market are distorted as well. Thus, they may not be suitable for the calculation of dumping (which measures the difference between the price in the market of origin and the price for export to the market of sale). For this reason, the Commission proposes to add Article 2(6a) to the basic anti-dumping Regulation to address significant market, and therefore price, distortions.
This article looks at the new approach being proposed. Some fundamental questions are asked about the overall approach being taken. The article then describes the changes being make and finally makes some suggestions as to improvement.
Does China get market economy status by default?
The change from classifying countries as market economies or non-market economies has profound effects on EU dumping investigations. The classification system has the big advantage of giving certainty to the system. Today complainants know how dumping from non-market economies should be calculated and how to construct a prima facie case on the basis of methodology set out in Article 2(7). The proposal removes this certainty. The methodology proposed for the future to show prima facie evidence of dumping is vague. To what extent do complainants bear the burden of proving that there are distortions in a particular economy? And if distortions are considered to be present what costs and prices can be used. This lack of certainty is at the basis of the concerns raised by many observers and users of the dumping instrument.
It has also raised the question whether the Commission is proposing that China should be granted market economy status by default. By removing the classification system, the Commission seeks to side-step the consequences of the issue of China’s status. Under the proposal, the classification of a particular market becomes irrelevant. This in turn means that the specific consequences of the expiry of one sentence of Article 15 of the WTO Accession Protocol on dumping methodologies also becomes irrelevant. In addition, the Commission also tries to side-step or anticipate the consequences of the outcome of the WTO dispute settlement procedure that China has launched against the current EU classification system.
All WTO economies will now be considered equal in law and subject to the general WTO dumping methodologies set out in Article 2(1) to 2(6). If any one of these economies is significantly distorted then the significant distortions provisions of Article 2(6a) will come into play. But Articles 2(1) to 2(6) are the provisions applicable to market economies and not non-market economies. If the Commission had intended to change the non-market provisions it would have added the new provisions to Article 2(7) rather than to Article 2(6). And if the intention was to introduce a completely new methodology surely it should have been placed in a new 2(8). By introducing the changes to the market economy provisions the Commission is in fact proposing to bring China within the market economy provisions of both EU and WTO law.
In law, the implication of the Commission’s approach is that the EU is abandoning the idea that Article 15 of the Accession Protocol can be the legal basis for treating China differently from other WTO members. This is despite the fact that only one sentence of Article 15 expires, that there is significant debate as to the legal consequence of that expiry, and that Article 15 as a whole is a recognition, by China and all other WTO members, that China was not a market economy in 2001 and that it cannot be considered a market economy until it demonstrates that it is one. China has failed to demonstrate that it is a market economy and yet the Commission seeks to treat it equally with market economies. This is unfortunate.
We now turn to the provisions of the Commission’s proposal.
Article 2(6a) is divided into five subparagraphs (also, a little confusingly, lettered (a) to (e)). Paragraph (a) would allow the Commission to determine, in the course of a specific investigation, that there are significant distortions in the economy of the country of origin of the goods, and that therefore the price of the good from that country can be constructed using input costs and prices from outside the country of origin. Paragraph (b) then provides a non-exhaustive list of what might be considered a significant distortion. These include government interference in the market or any other factor distorting free market forces.
The idea of significant distortions is not provided for in WTO law or the laws of any other country. It’s a completely new concept. This has good and bad consequences. The main disadvantage is that it is not clear how it will work. On the plus side, it allows room for the EU to address the substantive problems of distortions of costs and prices in all countries.
The not knowing how it will work is maybe not the biggest problem. With time, we will learn. But there is a lot to learn and there is concern that EU industry will be harmed during the learning process. What are significant distortions and what are the consequences of the finding of a significant distortion? In many energy-rich middle eastern or north African countries the energy market is both isolated from world markets and prices are kept artificially low. Is this a significant distortion? And does that distortion affect the whole market or just the energy market?
Taking this idea a step further, China’s market for capital and finance is both closed and government managed. Only state-owned banks are licenced and those banks are obliged to finance industries considered to be favoured under the five-year plans. Most observers agree that this is a significant distortion: it is the basis of the build-up of massive overcapacities in many sectors. But is the distortion only felt in the finance and capital market or does it infect the whole economy. In a particular anti-dumping investigations does this mean that when constructing the price of the good in China all input costs and prices must be taken from outside China or only some? What has to be learnt over the coming years is what weight to give to the different distortions in a given economy and the consequences of that weight. All parties will have to become familiar with the traceability of distortions though production processes.
A significant gap in the Commission’s proposal is that it does not spell out clearly how the new approach should be considered in WTO law. General WTO law allows the construction of the price (the legal term is called the normal value) when the price is not set ‘in the ordinary course of trade’ or because a ‘particular market situation’ makes an input cost or price unreliable. The general WTO law is reflected in Article 2(1) to 2(6) of the basic anti-dumping regulation.
As the Commission considers that the general WTO rules apply, then the concept of significant distortions must come within the general WTO rules for the construction of prices and thus will be framed by the general WTO rules on what can be considered as being ‘in the ordinary course of trade’ or a ‘particular market situation’ and not by the Protocol of Accession which defines China as a non-market economy.
The WTO has not given members much guidance on what these concepts mean. Recently, the EU lost a WTO dispute settlement case about constructing the Argentinian price for Biodiesel. The EU had considered the soya price in Argentina distorted thus distorting the Biodiesel price. The WTO Appellate Body found that the EU had not shown in sufficient detail how an export tax on soya had distorted the Argentinian soya price. The AB did not find that a distortion could never be found. Rather it found that the EU had not proved the distortion in sufficient detail. A good aspect of Biodiesel for the purposes of the Commission’s new approach is that it shows off-shore price benchmarks can be used as a reference when local prices are distorted. But again, very little guidance was given by the Appellate Body as to how this would work. Can the distorted price be replaced completely or can it only be adjusted upwards towards the off-shore benchmark price and if it can be adjusted upwards, by how much?
This highlights the fundamental problems addressed previously: has the Commission abandoned too easily (and too early) the possibility of using the WTO Accession Protocol as a legal basis for special rules for China or will the proposed new rules in Article 2(6a) turn out only to be an embellishment of the existing rules in Article 2(1) to 2(6) which in turn are the general WTO rules. A second question is whether the general WTO rules on which Article 2(1) to 2(6) is based are sufficiently robust to support the new significant distortions approach.
The Country reports
Paragraph (c) of the Commission’s proposal provides that the Commission may issue Reports on distortions in markets around the world. These Reports would list distortions in the economies (or sectors of the economy) in the countries for which they would be written.
The reports would not draw any conclusions as to the impact of the distortions or the weight to be given to them. Rather the reports would be placed on the file of the of a particular investigation and the parties to that investigation would have ample opportunity to comment on them. Decisions on the consequences of the distortions would only be taken in the context of the specific investigation. In other words, if the investigation concerned a particular steel originating in China, the Report would allow the parties to the investigation to consider the distortions in the report and to argue the weight and the consequences of the distortions for that particular steel product. The Commission in turn would only make conclusions on the distortions in relation to that steel product.
Paragraph (d) of the Commission proposal provides that complainants may rely on the contents of reports when making complaints. Under EU and WTO law a complainant must show prima facie evidence of dumping. To do that the complainant must be able to know how to measure the dumping and therefore what prices from the country of origin to use. Paragraph (d) seeks to give clarity on this issue.
This aspect of the proposal gives rise to three basic problems. One, what if there is no country report? Or, what if the country report does not address all sectors of an economy and in particular the sector of concern to the complainant? Second, what are the consequences of the distortions? It is the complainant which much first determine the consequences of any particular distortion because on the basis of the weight that a complainant will give to that distortion the complainant will either dismiss all costs and prices in constructing the price and use off shore benchmarks or it will only dismiss a limited number of the input costs and prices. Third, what if the complainant gets it wrong? Does that mean the complaint has not met the prima facie test? Fourth, how will the exchange of evidence between the complainants and the exporting producers play out in the course of the investigation? What certainty can the complainants place on the report? What extra evidence might be needed to be placed on the file to show the impact of any one distortion on a particular product? Finally, what is the status of the three reports that the Commission has already issued that conclude that China has not met the five EU criteria for market economy status and that the economy is thereby distorted?
All these questions hinge around the issue of burden of proof. Under the current approach complainants know to use Article 2(7) and the clear rules set out in that article for non-market economies. Under the new proposal, there is only the uncertainty of the significance of the distortions for particular products. A particular distortion might be relevant for one product and not another or have difference consequences for the different products. But most importantly who will have the burden of showing the consequence of the distortion for a particular product.
The fact that any particular report does not draw conclusion has advantages. The main advantage is that it would not be a formal decision of the Commission and therefore not subject to challenge before the EU courts in Luxembourg (for those who might have standing to challenge it). And it is clear that the drawing up of reports would ease the burden on complainants which do not have the resources to find distortions in third country markets. But it cannot be denied that the new approach is more complex than the current approach and that it requires more work from EU complainants.
The proposal does not align the EU with the US
Underlying the Commission’s proposal, but not spelt out in it, is a shift to a Costs of Production method for constructing the price in the country of origin where there are significant distortions. The Commission will break down the costs of production into different factors. It is not known what these factors will be, but they are likely to include: capital, labour, raw materials, parts, energy, land, maintenance as well as accounting issues such as depreciation, administration and profits.
If one of the factors is distorted then the price will be constructed using an undistorted benchmark from outside the country of origin. This is current Commission practice for market economies. If more than one factor is distorted then more non-country of origin benchmarks can be used. One of the many questions to be determined is whether a particular distortion of the economy in the country of origin affects all the factors of production or only one, or some, of them and which costs or prices to use in constructing the costs of production. Would a distortion in the energy sector or in the provision of capital to a market be sufficient to distort the costs and prices of all or more than one factors of production?
The Commission is clearly attempting to mirror the approach taken in the United States to calculating dumping from non-market economies. The US uses the Factors of Production approach. However, the Commission Cost of Production approach is significantly different from the US Factors of Production approach and cannot be considered an alignment with it.
First, the US uses the factors of production approach for non-market economies only and thus the very use of the factors of production approach is based on the preliminary determination that a country has or has not a market economy. The US determined in 2006 that China was not a market economy and, until that determination is changed, complainants in the US have the certainty of using this approach when making complaints.
Second, because the US approach is based on the preliminary determination that a country is non-market, all values or costs and prices of all factors of production are taken from off-shore benchmarks. Thus, the complainant knows, in making the complaint, how to get a value for all the factors of production and can easily construct the price for the country of origin.
Third, the US approach does not allow the use of any costs and prices from the country of origin. The EU approach will result in a mix of both country of origin and international benchmarks as, unlike the US, it starts from an examination of country of origin prices.
Fourth, the US approach means that because of the 2006 determination that China is a non-market economy complainants in the US do not bear the burden of proving that a particular cost or price is distorted.
In simple terms, the US approach gives certainty. The EU approach does the opposite.
Improving on the Commission’s approach
The Commission’s approach is not without merit. It seeks to address the economic reality, and the consequences, of distortions to markets rather than the legal classification of those markets.
The Commission seeks to balance the absence of certainty in WTO law as to the substance of the concepts of ‘not in the ordinary course of trade’ and ‘particular market situation’ and the need to give effect to those concepts in EU law. The Commission proposal is intentionally flexible so as to allow for the implementation of the future rulings of the WTO as to how the concepts should be interpreted.
But it is this very flexibility that is causing such concern for the Union industry. These concerns relate to the functioning of the new system, its ability to provide an effective tool to address the evident distortions of the market in China, what new burdens will be placed on complainants and whether, over time, lawyers will whittle away the room for the Commission to achieve the promises it has made for the new system: that it will result in measures as effective as under the current Article 2(7) calculation methodology.
The uncertainty could be removed by recognising that the 2001 Accession Protocol provides a sufficiently strong basis for treating China differently from other WTO members. The WTO will, in the not too distant future, determine the full scope of this possibility.
That being said, amendments could be introduced into the proposal to remove many of the uncertainties inherent in the current text. Changes to the Commission proposal could include:
- In paragraph 6a(a) make clear that the new methodology is, in law, a new and stand-alone methodology, as the Commission insists it is, and not simply an embellishment of the existing Article 2(1) to 2(6) market economy approach. This can be achieved by removing the reference to ‘when applying this provision or any other relevant provision of this Regulation’ and or by placing the new provisions in a new Article 2(8).
- In paragraph 6a(a) ensure that the stand-alone methodology also allows the use of off-shore prices for the product concerned (rather than just values for the different factors of production of that product). This would ensure that the new rules allow the use of an off-shore price for the product concerned as a whole as well as allowing for the use of off-shore values for each element of the cost of production. This can be ensured by including the words ‘….. the normal value shall be based on a price or a price to be constructed ….’
- In paragraph 6a(a) remove the phrase ‘with a similar level of economic development as the exporting country’. This is too limiting of the range of sources for obtaining un-distorted prices.
- In paragraph 6a(b) expand the list of distortions to include the five NME criteria used heretofore and in particular reference to the absence of a competitive and independent financial sector and a functioning bankruptcy system. In other words, make reference to systemic distortions of markets.
- In paragraph 6a(c) require that the Report comes to a prima facie conclusion giving greater certainty to complainants and parties to investigations. This would bring the EU closer to the US system and lessen the burdens on EU complainants.
- In paragraph 6a(c) allow the use of old reports examining the market economy status of different countries as well as the conclusions of investigations of dumping of other products.
- In paragraph 6a(c) introduce a right for exporting producers to establish that the significant distortions do not distort costs and prices in the sector producing the product under consideration. This would reflect, but be more comprehensive than, the market economy treatment provisions in Article 2(7) and implement the provisions of Article 15(d) of China’s Accession Protocol.
- In paragraph 6a(d) expand the use of the Report and introduce the idea that a finding of distortions is prima facie evidence that prices and costs are not reliable and that all costs and prices to be used in constructing the normal value should come from off-shore benchmarks. This would improve the alignment of the EU system with that of the US.
- In paragraph 6a(d) introduce special rules to allow industries with a large incidence of SMEs to use prices for the product concerned rather than having to construct the normal value based on international benchmarks.
- In paragraph 6a(e) introduce a time limit on discussions of the methodology to be used.
Create a new paragraph 6a(f) to deal with the consequences of less than adequate cooperation by exporting producers and introducing consequences for lack of cooperation. For example, in the absence of cooperation or in the presence of significant distortions, the lesser duty rule should not be applied.
The changes proposed in this note would have the effect of giving more certainty to both complainants and exporting producers in EU anti-dumping investigations. This can only be to the benefit of all.
Cause di ineleggibilità e decadenza del sindaco professionista in uno studio associato
Ai sensi dell’art. 2399, lett. c), c.c. è ineleggibile, e se eletto decade dall’ufficio, il sindaco che intrattiene con la società o sue controllate rapporti di natura patrimoniale che ne compromettano l’indipendenza. Ci si interroga se il caso in cui il sindaco sia parte di uno studio associato che presta attività di consulenza alla medesima società integri l’ipotesi prevista dalla legge. Sebbene il quesito sia risolto tendenzialmente in senso affermativo, permangono tuttavia dubbi circa i criteri adottati dalla Corte di Cassazione al fine di determinare i casi in cui, concretamente, l’indipendenza del sindaco possa dirsi compromessa.
La portata della delega gestoria nelle s.r.l.: contenuto e limiti
La Suprema Corte, con sentenza n. 25085 del 7 dicembre 2016, ha riconosciuto la legittimità di una delega di gestione di carattere generale, da parte del consiglio di amministrazione a favore di singoli consiglieri delegati con esercizio disgiunto dei poteri, nella misura in cui la stessa non sia diretta ad escludere l’esercizio di un concorrente potere di gestione da parte dell’organo collegiale amministrativo.
Trattamento di dati per finalità di marketing: la tutela delle persone giuridiche
Il Garante per la Protezione dei Dati Personali, con provvedimento n. 4 del 12 gennaio 2017, ha precisato la disciplina relativa al trattamento di dati personali per finalità di marketing, dichiarando illegittimo sia il trattamento di dati raccolti per il tramite di moduli presenti all’interno dei siti internet delle società sia il trattamento di dati (i.e. le utenze telefoniche) autonomamente reperiti sul web.
La responsabilità amministrativa degli enti ex d.lgs. n. 231/2001 all’interno dei gruppi di imprese
È ammissibile una responsabilità, ai sensi del d.lgs. n. 231 del 2001, della società capogruppo per reati commessi nell’ambito delle attività svolte dalle società da essa controllate a condizione che a) il soggetto che agisce per conto della holding concorra con il soggetto che commette il reato per conto della persona giuridica controllata; e che b) possa ritenersi che la holding abbia ricevuto un concreto vantaggio o perseguito un effettivo interesse a mezzo del reato commesso nell’ambito dell’attività svolta dalla società controllata.
Considerazioni in merito alla rinunciabilità dell’effetto risolutorio della diffida ad adempiere
La sentenza della Corte di Cassazione, sez. II, n. 4205 del 3 marzo 2016 offre l’opportunità per dare brevemente conto delle diverse posizioni di giurisprudenza e dottrina in materia di rinunciabilità dell’effetto risolutorio della diffida ad adempiere.
La responsabilità degli amministratori non operativi e il dovere di agire in modo informato
La responsabilità degli amministratori privi di deleghe operative, alla luce della sentenza della Corte di Cassazione Civile, Sez. I, 31 agosto 2016, n. 17441 in commento, non può discendere da una generica condotta di omessa vigilanza – tale da essere identificata nei fatti come una responsabilità oggettiva – ma deve essere ricondotta alla violazione del dovere di agire informati, sia sulla base delle informazioni che devono essere rilasciate da parte degli amministratori operativi, sia sulla base delle informazioni che gli amministratori non operativi possono acquisire di propria iniziativa. L’individuazione dei presupposti della responsabilità degli amministratori deleganti si inquadra, pertanto, in un discorso che valorizza la differenziazione dei doveri imposti agli amministratori delegati e quelli tipici degli amministratori non esecutivi.
Le Sezioni Unite della Corte di Cassazione sulla qualificazione e l’impugnazione del lodo non definitivo e del lodo parziale
Lodo che decide parzialmente il merito della controversia, immediatamente impugnabile a norma dell’art. 827 c.p.c., comma 3, è sia quello di condanna generica ex art. 278 c.p.c. sia quello che decide una o alcune delle domande proposte senza definire l’intero giudizio, non essendo immediatamente impugnabili i lodi che decidono questioni pregiudiziali o preliminari.
Europe Must Go On
The 60th anniversary of the Treaty of Rome sees the EU much changed from its early origins. We have moved from an economic community to a Union based on civil and human rights and the values common to the peoples of Europe. It has been, and is, a great success.
However it is clear that the Union is not without its troubles on this important anniversary. The Brexit negotiations are about to start. There are nationalist and decentralizing tendencies in many Member States and important elections in Germany and France. There are real problems of immigration and the absence of, or the uneven distribution of, economic growth.
These problems should not daunt us. Our fathers in the integration process faced greater problems. They sought to make peace and to make an institution to guarantee peace from the ashes of the most destructive of European wars.
What we must do is face up to our problems and resolve them. We have great shoulders to stand on. We have been given the evolving EU treaties, the Single Market, a strong Court of Justice in Luxembourg, good competition law, the rights of citizens, in other words a strong legal framework.
This is no time for faintheartedness. We must move on with courage and ensure that the Union is with us for more than another 60 years.
In questo numero, analizziamo una pronuncia del Consiglio di Stato secondo la quale non sarebbe necessaria la pubblicazione sulla Gazzetta UE dell’istanza di proroga di una concessione portuale. I terzi eventualmente interessati a presentare offerte concorrenti sarebbero garantiti, infatti, dalla possibilità di potersi preventivamente informare circa la scadenza della concessione e dalla istruttoria della Autorità Portuale (oggi Autorità di Sistema Portuale), che dovrà rispettare il principio dell’affidamento al soggetto che offre le «maggiori garanzie di proficua utilizzazione della concessione».
Approfondiamo poi le differenze nel diritto italiano tra un contratto di trasporto e un contratto di appalto avente ad oggetto l’esecuzione di trasporti. È importante qualificare correttamente il tipo di rapporto e qui spieghiamo il perché.
Passiamo, poi, ad esaminare due recenti sentenze dei Tribunali Amministrativi Regionali. La prima decisione riguarda le possibili modalità di assentimento delle concessioni demaniali marittime. La seconda statuisce l’applicabilità del Codice dei Contratti Pubblici anche alla gestione degli interporti con le inevitabili conseguenze che brevemente ricordiamo.
Alla luce della prossima entrata in vigore della Convenzione IMO per il controllo e la gestione delle acque di zavorra, esaminiamo le prevedibili ripercussioni per il settore armatoriale. Uno dei problemi più rilevanti consiste nel fatto che, ad oggi, mancano chiare indicazioni di come rendere le navi compliant rispetto alla nuova normativa. Vi sono, poi, Stati che hanno normative più stringenti rispetto alla Convenzione IMO. Il rischio è quindi quello di investire in apparecchiature che potrebbero non essere ritenute idonee.
Una recente sentenza della Corte di Cassazione ci consente di fare un breve punto sul tema del mancato pagamento di un premio assicurativo e la conseguente sospensione della garanzia. La Suprema Corte, in particolare, afferma la sussistenza della copertura assicurativa qualora il sinistro si verifichi entro il «periodo di tolleranza», a prescindere dal pagamento della successiva rata di premio.
In materia aeroportuale, la Suprema Corte ha aperto le porte alla possibile configurazione di nuovi profili di responsabilità in capo all’ENAC, l’ente che sovraintende alla attività aereoportuale e della navigazione aerea in Italia, nel caso di inadeguata manutenzione della pista che abbia creato danno ad un aeromobile.
Infine, concludiamo con la consueta rassegna delle notizie dal mondo del lavoro marittimo e portuale. La notizia di maggior rilievo è il rinnovo, in Italia, del contratto collettivo nazionale dei dirigenti delle Agenzie Maritime, che ha portato un miglioramento della situazione corrente.
Ringraziamo i nostri colleghi dell’ufficio di Bruxelles per il loro consueto aggiornamento sulle azioni più significative delle istituzioni dell’UE adottate in materia di trasporti e di commercio intenzionale.
Troverete, infine, un primo elenco dei prossimi eventi previsti nelle nostre sedi di Milano e di Roma, oltre al consueto update sulle attività dello Studio nel bimestre passato.
Per la Cassazione non è fattibile il concordato se il piano non specifica le modalità di attuazione
La Corte di Cassazione (n. 4915 del 27 febbraio 2017) ha ribadito che il Tribunale può sindacare la «causa concreta» del concordato preventivo, interpretando in senso estensivo il criterio della assoluta, manifesta inettitudine del piano del debitore a raggiungere gli obiettivi prefissati.
Spettano ai creditori tutte le risorse generate dalla prosecuzione dell’attività nel concordato con continuità aziendale ?
Il Tribunale di Firenze (2 novembre 2016) ha confermato che il debitore può conservare parte dell’attivo, in un’ottica di favore verso il risanamento dell’impresa ed in deroga ai principi della responsabilità patrimoniale.
Cram down ex art. 182-septies l.fall. se l’accordo è conveniente per la banca rispetto al fallimento
La recente decisione del Tribunale di Padova (31 dicembre 2016) viene messa a raffronto con i pochi precedenti editi in tema di estensione degli effetti degli accordi di ristrutturazione dei debiti a creditori finanziari non aderenti.