Decision of the President of the European Commission of 29 February 2012 on the function and terms of reference of the hearing officer in certain trade proceedings (2012/199/EU)

Decision of the President of the European Commission

of 29 February 2012

on the function and terms of reference of the hearing officer in certain trade proceedings

(2012/199/EU)

THE PRESIDENT OF THE EUROPEAN COMMISSION,

Having regard to the Treaty on European Union,

Having regard to the Treaty on the Functioning of the European Union,

Having regard to the Rules of Procedure of the Commission(1), and in particular Article 22 thereof,

Whereas:

(1) The right to good administration constitutes an established principle of European Union law, which includes the procedural rights of interested parties involved in administrative proceedings, the result of which may affect their interests.

(2) This principle of European Union law is set out in Article 41 of the Charter of Fundamental Rights of the European Union(2). The rights set out in Article 41(1) and (2) of the Charter of a person whose interests are affected by a trade proceeding are also either explicitly set out or should, since they are general principles of law, be applied in Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community(3), Council Regulation (EC) No 597/2009 of 11 June 2009 on protection against subsidised imports from countries not members of the European Community(4), Council Regulation (EC) No 260/2009 of 26 February 2009 on the common rules for imports(5), Council Regulation (EC) No 625/2009 of 7 July 2009 on common rules for imports from certain third countries(6), Council Regulation (EC) No 3286/94 of 22 December 1994 laying down Community procedures in the field of the common commercial policy in order to ensure the exercise of the Community’s rights under international trade rules, in particular those established under the auspices of the World Trade Organisation(7), Council Regulation (EC) No 385/96 of 29 January 1996 on protection against injurious pricing of vessels(8), Regulation (EC) No 868/2004 of the European Parliament and of the Council of 21 April 2004 concerning protection against subsidisation and unfair pricing practices causing injury to Community air carriers in the supply of air services from countries not members of the European Community(9), Council Regulation (EC) No 732/2008 of 22 July 2008 applying a scheme of generalised tariff preferences for the period from 1 January 2009 to 31 December 2011 and amending Regulations (EC) No 552/97, (EC) No 1933/2006 and Commission Regulations (EC) No 1100/2006 and (EC) No 964/2007(10), Council Regulation (EC) No 1515/2001 of 23 July 2001 on the measures that may be taken by the Community following a report adopted by the WTO Dispute Settlement Body concerning anti-dumping and anti-subsidy matters(11) and in Council Regulation (EC) No 427/2003 of 3 March 2003 on a transitional product-specific safeguard mechanism for imports originating in the People’s Republic of China and amending Regulation (EC) No 519/94 on common rules for imports from certain third countries(12).

(3) Since 1 January 2007, the task to safeguard the effective exercise of the procedural rights of the interested parties and ensure that trade proceedings provided in the regulations listed above are handled impartially, fairly and within a reasonable time has been entrusted to an official of the Directorate-General for Trade experienced in trade defence issues, entitled ‘Hearing Officer’.

(4) In order to strengthen this role and reinforce the transparency and the procedural fairness of the relevant proceedings, it is now appropriate to strengthen this function of hearing officer inside the Commission and to lay down his attributions.

(5) This function should be attributed to an independent person experienced in trade proceedings. The hearing officer should be appointed by the Commission in accordance with the rules laid down in the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Union.

(6) In order to ensure the independence of the hearing officer, he should be attached, for administrative purposes, to the member of the Commission responsible for trade policy.

(7) The main attributions of the hearing officer provided for in this decision are to advise the Commissioner responsible for trade policy and the Director-General of Trade DG; to guarantee procedural rights; to allow access to the file; to take a decision on the confidential nature of a document; to review the position of the administration on the extension of deadlines. The hearing officer should seek to ensure that in the preparation of draft Commission legal acts or proposals, due account is taken of all the relevant facts, whether favourable or unfavourable to the parties concerned.

(8) In order to enhance the procedural guarantees for the exercise of the procedural rights of interested parties, it is necessary to determine the types of hearings and to fix the rules for the organisation, conduct and follow-up on hearings with the hearing officer.

(9) The power of the hearing officer to decide on issues concerning access to the file, confidentiality and deadlines should provide the parties involved in a trade proceeding with an additional procedural guarantee without prejudice to the time constraints of the proceeding.

(10) The reports should ensure that the main issues dealt with by the hearing officer and his main recommendations are brought to the attention of the decision-makers and thus provide an additional guarantee for the respect of the rights of parties affected by a trade proceeding. The annual reports should also inform the EU Member States, the European Parliament and the public about the activities of the hearing officer.

(11) When disclosing information on natural persons, particular attention should be paid to Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data(13).

(12) This Decision should be without prejudice to the general rules granting or excluding access to Commission documents,

HAS ADOPTED THIS DECISION:

(1)

OJ L 55, 5.3.2010, p. 60.

(2)

OJ C 83, 30.3.2010, p. 391.

(3)

OJ L 343, 22.12.2009, p. 51.

(4)

OJ L 188, 18.7.2009, p. 93.

(5)

OJ L 84, 31.3.2009, p. 1.

(6)

OJ L 185, 17.7.2009, p. 1.

(7)

OJ L 349, 31.12.1994, p. 71.

(8)

OJ L 56, 6.3.1996, p. 21.

(9)

OJ L 162, 30.4.2004, p. 1.

(10)

OJ L 211, 6.8.2008, p. 1.

(11)

OJ L 201, 26.7.2001, p. 10.

(12)

OJ L 65, 8.3.2003, p. 1.

(13)

OJ L 8, 12.1.2001, p. 1.