International Trade & Customs
Il Dipartimento di Diritto Doganale fornisce consulenza in materia di spostamento di beni e servizi oltre i confini nazionali e accesso ai mercati esteri.
Nctm è una realtà affermata nell’offerta di consulenza legale su misura in un ampio ventaglio di temi nell’ambito del diritto doganale.
I nostri legali hanno prestato assistenza a società e governi innanzi alle autorità doganali europee e di stati terzi in materia di restrizioni all’accesso al mercato, dual use, richieste di licenze di esportazione, barriere tecniche al commercio, aliquote tariffarie, norme sull’origine dei prodotti, classificazioni doganali e tariffe preferenziali.
Difesa del Commercio Europeo
La Difesa del Commercio è uno dei cardini della nostra attività.
Assistiamo alcune delle maggiori imprese europee in procedure Antidumping e Antisovvenzioni, rappresentandone gli interessi in procedimenti amministrativi dinnanzi alla Commissione Europea nonché in procedimenti contenziosi dinnanzi alle Corti di Giustizia.
Nctm presta assistenza legale al Consiglio dell’Unione Europea nei casi di reclami presentati da terzi contro le regolamentazioni sulla difesa del commercio presso la Corte Generale Europea e la Corte di Giustizia Europea in Lussemburgo.
Grazie alla consolidata collaborazione con la Commissione, il nostro studio ha contatti privilegiati con molti dei funzionari della Direzione Generale Trade, soprattutto nel settore della Difesa del Commercio.
Conciliazioni innanzi all’OMC
Nctm ha una solida esperienza nella consulenza legale su temi attinenti al GATT e all’OMC. Nel corso degli ultimi vent’anni abbiamo lavorato per conto di paesi terzi su alcune delle maggiori controversie all’interno dell’OMC, ivi inclusi i principali casi di acceso al mercato europeo nei settori industriale e agricolo come quelli relativi a DRAM, banane, zucchero, ormoni e pollame.
Ci siamo concentrati, in particolare, sulle relazioni commerciali bilaterali tra Europa e paesi terzi e sulle relazioni commerciali multilaterali. Siamo in grado di prestare assistenza a società internazionali e governi con rifermento a tutti gli aspetti relativi alle barriere normative sul commercio di beni e servizi. I nostri legali rappresentano Stati Membri dell’Unione Europea, governi di paesi terzi e associazioni commerciali non solo nelle trattative con le istituzioni europee e gli altri Stati Membri ma anche con i governi di stati terzi.
Abbiamo inoltre assistito governi stranieri nei negoziati del Doha Round e dell’Uruguay Round e nei negoziati di adesione all’OMC nonché organizzazioni private in questioni legate alle implicazioni per la loro attività.
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.
The 25th of March marked the 60th anniversary of the signing of the 1957 Treaty of Rome creating the European Economic Community. The EEC entered into effect in 1958 and has changed all our lives since. I was five at the time and spent the next 25 years fairly ignorant of the organisation despite the fact that my father drafted many of the tax laws necessary for Irish membership in 1973 and I qualified as a lawyer in Ireland in 1980.
It was only after a couple of years practicing Irish law in Dublin that I began taking EEC law seriously. I completed specialist post graduate degrees in EEC law in Amsterdam and at the European University Institute in Fiesole and in 1986 I moved to Brussels to practice what for me was the new world of EEC law. I moved to Brussels not out of love of the city but because it was the only place, at that time, where a lawyer could practice EEC law full time. It was then considered a marginal speciality. In fact, a number of my lawyer friends advised against it. They argued that EEC law was not real law and it was not the basis for a successful career. And they were right. At first. There was not that much law work around.
The EU in the mid 1980s was very different from today. There were still borders and border posts between the Member States. Products crossing the borders still had to go through customs procedures, get back and pay taxes, show compliance with health and safety requirements and many of the other procedures now carried out at the external frontiers of the Union. It is true that actual customs duties had been removed but non-tariff barriers to trade were very present. The EU was sufficiently divided and broken up that individual Member States were still able to keep their individual trade relations with third countries for certain products.
Legal work in Brussels at that time broke down into three broad areas: competition, anti-dumping and free movement. The biggest problems on free movement were in relation to food standards and product safety. What is now Article 26 TFEU prohibited quantitative restrictions on movement and measures having an equivalent effect. Article 36 set out the exceptions on the basis of the protection of the health and life of humans, animals and plants. The questions before the courts were whether an Irish government campaign to ‘Buy Irish’ was a restriction on free movement or whether France could be held liable for not preventing farmers stopping Spanish goods crossing the border. In practice this meant that there was little free movement of foodstuffs as each Member State set their own standards.
And then came Cassis de Dijon in 1979. This changed everything (even if it too a bit of time to sink in). The Court of Justice ruled that as most standards had the same objective of protecting health and safety they could be considered equivalent. Member States should mutually recognise the validity of each others standards. The formula handed down by the judges was that if a good was legally produced and marketed in one Member State then it should be able to move freely into a second state.
Member States with high standards were concerned that products would be legally placed on the market in low standard Member States and then undermine the higher standard. In addition, manufacturing could move from high standard to low standard states. The EU’s reaction was comprehensive and all encompassing. The decision was taken to change the approach to standards and to move away from product specific standards in the food sector and move to minimum health and safety standards. And it was decided to change the decision-making rules and reintroduce majority voting in the Council.
The 1992 programme was designed to complete the single market. This programme foresaw the adoption more than 300 laws in a five-year period that would allow the removal of the physical, economic and technical borders between the Member States and the completion of the external frontier of the Community. Work is still going on to complete the single market particularly for services but for the most part it is complete for goods.
In Competition, the work was two fold. One main strand of work was in relation to distribution and agency agreement. To what extent could manufacturers tie-in their agents and distributors and restrict their ability to sell outside the zones for which they had an agreement. These were the exclusive rights to sell in one Member State and not in another. What was an exclusive distributor for Germany to do if a French customer asked for goods. Could they sell or not? And could manufacturers use intellectual property to maintain divisions in the single market.
The second strand of work in competition law was the break-up of national monopolies. To what extent could it be considered that national and most often state owned energy or transport or telecommunication companies be considered to be in abuse of their dominant or exclusive positions in different Member States? Slowly competition law was applied to break down the monopolies and introduce competition.
The liberalisation of certain sectors at the Member State level automatically resulted in the need to regulate these sectors at the EU level. This implied the granting of greater competence to the Union to undertake the regulatory functions inherent in the management of the single market. So over the 1990s and into the 2000s the Member States slowly increased the competence of the Union and slowly improved the way in which decisions were to be made in Brussels. In a series of changes to the Treaty of Rome leading to the Lisbon Agreement (the failed constitution agreement) we changed the Community to the Union, we gave greater power to the Parliament, we gave more competence to the Union.
As all this happened the nature of law work changed. As the Union got more competence and became the regulator of the single market for more and more sectors, decisions of the institutions had a greater and greater impact on industry and there was a notable increase in litigation to annul Commission and Council decisions. The Commission as the executive of the Union became stronger. This in turn allowed the Commission to implement the competences it had in a more robust manner. This can be seen in relation to competition law. The focus shifted from distribution and dominance so as to complete the single market to attacking collusion between enterprises across the single market.
Lawyers also become more involved in the formulation and the quality of laws. In other words, lobbying. The idea that lawyers were lobbyists was, and for many still is, problematical. But why should this be? Lobbying is in fact advocacy. But rather than trying to persuade a judge as to the correctness of your arguments you are trying to persuade the legislator of the correctness of your analysis. The more lobbing there is the better the law is.
The last 30 years have been eventful and fun to have been part of. One case, bananas, lasted from 1988 to 2010. The hormones case lasted 10 years. Today we are working on the EU’s relationship with China and the US which will last for many years to come. The EU has built competence on the environment, on health and safety and the welfare of consumers. We have built and protected the common values of the EU. It has been fun, yes, but important too. We need another sixty years and more to continue the great European project.
The UK is nothing if not pragmatic. The pragmatism has sometime been referred to as perfidiousness: perfidious Albion. What is sure is that the UK will approach the divorce with the EU in a very pragmatic fashion. It will seek to develop bi-lateral relations with its direct trading partners. It will seek to revive the trade pre erences in the Commonwealth. It will seek independent influence in all international bodies.
Trade features significantly in this first edition of Across the EUniverse for the year 2017. It cannot be otherwise. US President Trump has said that he will change US trade policy building barriers to market access and forcing US companies to manufacture at home. China President Xi has said that China promotes barrier free trade so long as the barriers are in third countries (not in China). The EU is in the process of reforming its trade defence instruments and digesting how a post Brexit world will look. This change in trade is evidence of wider change that is taking place around us and which is likely to continue into 2017. There will be federal elections in Germany and national elections in France. If Italy gets to change its electoral law there may well be an election in Italy. Will the forces that backed President Trump in the US win in the EU as well. The country most likely to change is the Netherlands, once a bastion of openness but now toying with the idea of giving the most votes to an anti-Islam party.
In this issue we look at the legal debate concerning an Italian exit from the Euro; a comparison between Trump and Xi approach on the concept of trade; some consequences of the excessive length of court proceeding; we also examine the advantages of the new italian “rent to buy” agreement; as well as the Multilateral Investment Court; an overview of the service sector; a further examination of the trade consequences of Brexit and finally the advantages or disadvantages of enhancing the bilateral framework between EU and US in the field of energy.
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.