European Business Law, the fourth volume in our series, shows how the European authorities simultaneously abolish all restrictions on access to and exercise of economic activities and support the growth of domestic markets, through the harmonization the internal legislation or the enactment of genuinely unified regulations.

European Business Law

The Commission must require any exporter from which an undertaking has been accepted to provide, periodically, information relevant to the fulfillment of its undertaking, and to permit verification of pertinent data (Regulation No 2016/1036, Article 8(7)). It thus supervises the compliance with the undertakings it has accepted. 
1) Conditions of withdrawal
Where it finds that an undertaking has be …

Breach/Withdrawal

The Commission must require any exporter from which an undertaking has been accepted to provide, periodically, information relevant to the fulfillment of its undertaking, and to permit verification of pertinent data (Regulation No 2016/1036, Article 8(7)). It thus supervises the compliance with the undertakings it has accepted. 

Where it finds that an undertaking has been breached, the European authority has the possibility to withdraw its acceptance, regardless of the nature and degree of the breach . This is the case where the exporter breaches its obligation to cooperate with the Commission in monitoring its undertaking , does not provide its quarterly sales reports within the prescribed time-limit , has made on several occasions misleading declarations as to the nature, type or origin of the products sold or as to its identity , does not efficiently control the actual price of its own exports  or does not comply with the obligation to provide quarterly reports of sales of the product concerned not covered by the undertaking and infringes its obligation not to issue Undertaking Invoices for products not covered by the undertaking, whereas the reporting obligations must be regarded as essential obligations for the purpose of the proper functioning of the system of undertakings, which is based primarily on the exporter's obligation to cooperate and the monitoring of the proper fulfilment of the undertaking given . The undertaking may also be withdrawn by a party to that undertaking (Art. 8(9)(1)). Any interested party or Member State may provide information to the Commission showing prima facie evidence of a breach of undertakings. The Commission must assess whether a breach has occurred normally within six months, but no later than nine months following a request (Art. 8(9)(2). Withdrawal of the acceptance may also be justified by a change in the circumstances outside any breach, which may result in review.

Irrespective of its origin, the withdrawal has the same effect: the provisional or definitive duty imposed by the Commission automatically apply , provided that the exporter has, except where he himself has withdrawn the undertaking, been given the opportunity to comment (Art. 8(9)). Exporters may also be invited to voluntarily withdraw their undertakings where, no sales being made to the Union during the reference period and having no binding contractual obligation to export in the near future, they can no longer qualify as exporters . When in the course of a review procedure, there are reasons to believe that undertakings have been violated, those undertakings are terminated and replaced by a provisional anti-dumping duty calculated on the basis of the facts established before their acceptance . The breach or circumvention of the undertakings is enough to institute definitive duties and it is not necessary to prove once again dumping and injury which have already been determined as part of the investigation having led to the undertaking .Their re-imposition is not a “punishment” but a way of restoring and ensuring the effectiveness of the trade protection measures originally imposed . Thus, it is only in exceptional circumstances that the Commission may decide not to collect definitive duties where it considers, in the exercise of its discretion, that the European interest does not require such action . Lastly, where the investigation which led to the undertaking has not been concluded, a provisional duty may be imposed on the basis of the best information available, where there is reason to believe that an undertaking is being breached, or in case of breach or withdrawal of an undertaking (Art. 8(10)). 

Non-compliance by an exporter with its undertakings may be justified under certain conditions. The breach must be the inevitable result of an extraneous cause which could not reasonably have been foreseen or pre-empted and makes it objectively impossible for the company concerned to comply with its obligations . The illness of staff members for a few days, or the intense activity of other related production sectors , or the fact that the breach of a minimum price undertaking is due to the action of an employee of the exporter concerned who, after having placed him under scrutiny, continued to make sales at prices which were not in conformity with the undertaking  cannot be considered as circumstances constituting force majeure. On the other hand, no breach of undertaking may be retained where the ambiguous text of an undertaking misled exporters on the possibility to compensate sales below the minimum prices in one presentation of the product with sales above the minimum price in another . Likewise, the non-compliance with the dispatch of reports to the Commission within the prescribed deadline is not a breach of the undertaking by an exporter where it results from a failure of the Commission's electronic mail system .

Commission Decision No 2002/743 of 14 August 2002, imports of farmed Atlantic salmon (Norway), LawLex201100000544JBJ, which considers that the supposed gravity of the breach or its consequences is not relevant to the decision to impose a duty.

Case T-340/99 Arne Mathisen v Council [2002] ECR II-2905, LawLex200900001350JBJ.

Commission Decision No 2002/743 of 14 August 2002, imports of farmed Atlantic salmon (Norway), LawLex201100000544JBJ.

Council Regulation (EU) No 2052/98 of 24 September 1998, imports of farmed Atlantic salmon (Norway), LawLex200900002487JBJ.

Commission Regulation (EC) No 2592/1999 of 8 December 1999, imports of farmed Atlantic salmon (Norway), LawLex200900002900JBJ.

See Commission Regulation (EC) No 929/1999 of 29 April 1999, imports of farmed Atlantic salmon (Norway), LawLex200900002889JBJ, as regards the non-compliance with the time-limit which results from serious technical problems with regard to special computer diskettes used for compiling data or from a failure of the Commission's electronic mail system.

Commission Regulation (EC) No 1826/1999 of 23 August 1999, imports of farmed Atlantic salmon (Norway), LawLex200900002896JBJ; Council Regulation (EU) No 1895/1999 of 27 August 1999, amending Regulation (EC) No 772/1999, LawLex200900002511JBJ.

Commission Regulation (EC) No 1826/1999 of 23 August 1999, imports of farmed Atlantic salmon (Norway), LawLex200900002896JBJ; Council Regulation (EU) No 1895/1999 of 27 August 1999, amending Regulation (EC) No 772/1999, LawLex200900002511JBJ; No 1674/2003 of 22 September 2003, imports of steel ropes and cables (Poland, Ukraine), LawLex200900002537JBJ, as regards an exporter which, contrary to its undertakings, has not sold all its exports of the products concerned to the Union directly to unrelated importers, but via a related importer in the Union, or which has repeatedly submitted misleading information about the relationship with that importer.

Case T-51/96 Miwon v Council [2000] ECR II-1841, LawLex200800000099JBJ; T-340/99 Arne Mathisen v Council [2002] ECR II-2905, LawLex200900001350JBJ.

Case C-552/10 P Usha Martin Ltd, Judgment of 22 November 2012, LawLex201200002405JBJ.

Case 239/82 Allied Corporation and others v Commission [1984] ECR 1005, LawLex200900001675JBJ; Council Regulation (EU) No 1754/95 of 18 July 1995, imports of monosodium glutamate (Indonesia, Korea, Taiwan, Thailand), LawLex200900002751JBJ; Commission Regulation (EC) No 92/96 of 22 January 1996, imports of ferro-silico- manganese (Russia, Ukraine, Brazil, South Africa), LawLex200900002404JBJ.

See Council Regulation (EU) No 2039/98 of 24 September 1998, imports of farmed Atlantic salmon (Norway), LawLex200900002486JBJ.

Commission Regulation (EC) No 1754/95 of 18 July 1995, imports of monosodium glutamate (Indonesia, Korea, Taiwan, Thailand), LawLex200900002751JBJ; Case 239/82 Allied Corporation and others v Commission [1984] ECR 1005, LawLex200900001675JBJ, which states that when an undertaking has been withdrawn, the Commission takes a decision on the basis of the information which was at its disposal when the undertakings were given without conducting a further investigation.

European Business Law

458. Breach/Withdrawal

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458. Breach/Withdrawal

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise