Regulation (EU) 2016/1035 of the European Parliament and of the CouncilShow full title

Article 5 U.K. Initiation of proceedings

1. Except as provided for in paragraph 8, an investigation to determine the existence, degree and effect of any alleged injurious pricing shall be initiated upon a written complaint by any natural or legal person, or any association not having legal personality, acting on behalf of the Union industry.

The complaint may be submitted to the Commission or to a Member State, which shall forward it to the Commission. The Commission shall send Member States a copy of any complaint it receives. The complaint shall be deemed to have been lodged on the first working day following its delivery to the Commission by registered mail or the issuing of an acknowledgement of receipt by the Commission.

Where, in the absence of any complaint, a Member State is in possession of sufficient evidence of injurious pricing and of resultant injury to the Union industry, it shall immediately communicate such evidence to the Commission.

2. A complaint under paragraph 1 shall be filed no later than:

(a) 6 months from the time that the complainant knew, or should have known, of the sale of the vessel, when:

(i)

the complainant was invited to tender a bid on the contract at issue through a broad multiple bid or any other bidding process;

(ii)

the complainant actually did tender a bid; and

(iii)

the bid of the complainant substantially met bid specifications;

(b) 9 months from the time that the complainant knew, or should have known, of the sale of the vessel in the absence of an invitation to tender, provided that a notice of intent to apply, including information reasonably available to the complainant to identify the transaction concerned, had been submitted no later than 6 months from that time to the Commission or a Member State.

In no event shall a complaint be filed later than 6 months from the date of delivery of the vessel.

The complainant may be considered to have known of the sale of a vessel from the time of publication of the fact of the conclusion of the contract, along with very general information concerning the vessel, in the international trade press.

For the purpose of this Article, a broad multiple bid shall be interpreted to mean a bid in which the proposed buyer extends an invitation to bid to at least all the shipbuilders known to the buyer to be capable of building the vessel in question.

3. A complaint under paragraph 1 shall include evidence:

(a) of injurious pricing;

(b) of injury;

(c) of a causal link between the injuriously priced sale and the alleged injury; and

(d)

(i)

that, if the vessel was sold through a broad multiple bid, the complainant was invited to tender a bid on the contract at issue, it actually did so, and the bid of the complainant substantially met bid specifications (namely, delivery date and technical requirements); or

(ii)

that, if the vessel was sold through any other bidding process and the complainant was invited to tender a bid on the contract at issue, it actually did so, and the bid of the complainant substantially met bid specifications; or

(iii)

that, in the absence of an invitation to tender a bid other than under a broad multiple bid, the complainant was capable of building the vessel concerned and, if the complainant knew, or should have known, of the proposed purchase, it made demonstrable efforts to conclude a sale with the buyer consistent with the bid specifications in question. The complainant may be considered to have known of the proposed purchase if it is demonstrated that the majority of the relevant industry has made efforts with that buyer to conclude a sale of the vessel in question, or if it is demonstrated that general information on the proposed purchase was available from brokers, financiers, classification societies, charterers, trade associations, or other entities normally involved in shipbuilding transactions with whom the complainant had regular contacts or dealings.

4. The complaint shall contain such information as is reasonably available to the complainant on the following:

(a) the identity of the complainant and a description of the volume and value of the Union production of the like vessel by the complainant. Where a written complaint is made on behalf of the Union industry, the complaint shall identify the industry on behalf of which the complaint is made by a list of all known Union producers capable of building the like vessel and, to the extent possible, a description of the volume and value of Union production of the like vessel accounted for by such producers;

(b) a complete description of the allegedly injuriously priced vessel, the names of the country or countries of origin or export in question, the identity of each known exporter or foreign producer and the identity of the buyer of the vessel in question;

(c) the prices at which such vessels are sold in the domestic markets of the country or countries of origin or export (or, where appropriate, the prices at which such vessels are sold from the country or countries of origin or export to a third country or countries or the constructed value of the vessel) and the export prices or, where appropriate, the prices at which such vessels are first resold to an independent buyer;

(d) the effect of the injuriously priced sale on prices of the like vessel on the Union market and the consequent impact of the sale on the Union industry, as demonstrated by relevant factors and indices having a bearing on the state of the Union industry, such as those listed in Article 3(3) and (5).

5. The Commission shall, as far as possible, examine the accuracy and adequacy of the evidence provided in the complaint, to determine whether there is sufficient evidence to justify the initiation of an investigation.

6. An investigation shall not be initiated pursuant to paragraph 1 unless it has been determined, on the basis of an examination as to the degree of support for, or opposition to, the complaint expressed by Union producers capable of building the like vessel, that the complaint has been made by, or on behalf of, the Union industry. The complaint shall be considered to have been made by, or on behalf of, the Union industry if it is supported by those Union producers whose collective capacity to produce the like vessel constitutes more than 50 % of the total capacity of that portion of the Union industry expressing either support for, or opposition to, the complaint. However, no investigation shall be initiated where Union producers expressly supporting the complaint account for less than 25 % of total capacity of the Union producers capable of producing the like vessel.

7. The authorities shall avoid, unless a decision has been taken to initiate an investigation, any publicising of the complaint seeking the initiation of an investigation. However, before proceeding to initiate an investigation, the government of the exporting country concerned shall be notified.

8. If, in special circumstances, the Commission decides to initiate an investigation without having received a written complaint by, or on behalf of, the Union industry for the initiation of such investigation, this shall be done on the basis of sufficient evidence of injurious pricing, injury, a causal link, and that a member of the allegedly injured Union industry met the criteria referred to in paragraph 3 (d), to justify such initiation.

Where appropriate, an investigation may also be initiated upon a written complaint by the authorities of a Contracting Party. Such a complaint shall be supported by sufficient evidence to show that a vessel is being, or has been, injuriously priced and that the alleged sale to a Union buyer at less than normal value is causing, or has caused, injury to the domestic industry of the Contracting Party concerned.

9. The evidence of both injurious pricing and injury shall be considered simultaneously in the decision on whether or not to initiate an investigation. A complaint shall be rejected where there is insufficient evidence of either injurious pricing or of injury to justify proceeding with the case.

10. The complaint may be withdrawn prior to initiation, in which case it shall be considered not to have been lodged.

11. Where it is apparent that there is sufficient evidence to justify initiating proceedings, the Commission shall do so within 45 days of the date on which the complaint was lodged, or, in the case of initiation pursuant to paragraph 8, no later than 6 months from the time the sale of the vessel was known or should have been known, and shall publish a notice in the Official Journal of the European Union. Where insufficient evidence has been presented, the complainant shall be so informed within 45 days of the date on which the complaint is lodged with the Commission. The Commission shall provide information to the Member States once it has determined that there is a need to initiate such proceedings.

12. The notice of initiation of the proceedings shall announce the initiation of an investigation, indicate the name and country of the shipbuilder and the buyer or buyers and a description of the vessel concerned, give a summary of the information received, and provide that all relevant information is to be communicated to the Commission.

It shall state the periods within which interested parties may make themselves known, present their views in writing and submit information if such views and information are to be taken into account during the investigation. It shall also state the period within which interested parties may apply to be heard by the Commission in accordance with Article 6(5).

13. The Commission shall advise the exporter, the buyer or buyers of the vessel and representative associations of producers, exporters or buyers of such vessels known to it to be concerned, as well as representatives of the country the vessel of which is subject to such investigation and the complainants, of the initiation of the proceedings and, with due regard to the protection of confidential information, provide the full text of the written complaint received pursuant to paragraph 1 to the exporter, and to the authorities of the exporting country, and make it available upon request to other interested parties involved.