16.5.2012 EN Official Journal of the European Union L 129/1 REGULATION (EU) No 386/2012 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 19 April 2012 on entrusting the Office for Harmonization in the Internal Market (Trade Marks and Designs) with tasks related to the enforcement of intellectual property rights, including the assembling of public and private-sector representatives as a European Observatory on Infringements of Intellectual Property Rights (Text with EEA relevance) THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty on the Functioning of the European Union, and in particular Article 114 and the first paragraph of Article 118 thereof, Having regard to the proposal from the European Commission, After transmission of the draft legislative act to the national parliaments, Having regard to the opinion of the European Economic and Social Committee (1), Acting in accordance with the ordinary legislative procedure (2), Whereas: (1) The economic well-being of the Union relies on sustained creativity and innovation. Therefore, measures for their effective protection are indispensable in ensuring its future prosperity. (2) Intellectual property rights are vital business assets that help to ensure that creators and innovators get a fair return for their work and that their investment in research and new ideas is protected. (3) A sound, harmonised and progressive approach to intellectual property rights is fundamental in the endeavour to fulfil the ambitions of the Europe 2020 Strategy including A Digital Agenda for Europe. (4) The constant increase in infringements of intellectual property rights constitutes a genuine threat not only to the Union economy, but also, in many cases, to the health and safety of Union consumers. Therefore, effective, immediate and coordinated action at national, European and global levels is needed to successfully combat this phenomenon. (5) In the context of the overall intellectual property rights strategy envisaged by the Council Resolution of 25 September 2008 on a comprehensive European anti-counterfeiting and anti-piracy plan (3), the Council called on the Commission to set up a European Observatory on Counterfeiting and Piracy. The Commission therefore formed a network of experts from the public and the private sectors and described the tasks of that network in its Communication entitled ‘Enhancing the enforcement of intellectual property rights in the internal market’. The name of the European Observatory on Counterfeiting and Piracy should be changed to the European Observatory on Infringements of Intellectual Property Rights (‘the Observatory’). (6) That Communication stated that the Observatory should serve as the central resource for gathering, monitoring and reporting information and data related to all infringements of intellectual property rights. It should be used as a platform for cooperation between representatives from national authorities and stakeholders to exchange ideas and expertise on best practices and make recommendations to policymakers for joint enforcement strategies. The Communication specified that the Observatory would be hosted and managed by the services of the Commission. (7) In its Resolution of 1 March 2010 on the enforcement of intellectual property rights in the internal market (4), the Council invited the Commission, the Member States and industry to provide the Observatory with available reliable and comparable data on counterfeiting and piracy and to jointly develop and agree, in the context of the Observatory, on plans to collect further information. The Council also invited the Observatory to publish each year a comprehensive annual report covering the scope, scale and principal characteristics of counterfeiting and piracy as well as its impact on the internal market. That annual report should be prepared using the relevant information provided in that regard by the authorities of the Member States, the Commission and the private sector within the limits of data protection law. The Council also recognised the importance of developing new competitive business models enlarging the legal offer of cultural and creative content and at the same time preventing and combating infringements of intellectual property rights as necessary means for fostering economic growth, employment and cultural diversity. (8) In its Conclusions of 25 May 2010 on the future revision of the Trade Mark system in the European Union (5), the Council called on the Commission to establish a legal basis for the involvement of the Office for Harmonization in the Internal Market (Trade Marks and Designs) (‘the Office’) in enforcement-related activities, including the fight against counterfeiting, in particular through fostering its cooperation with the national trade mark offices and the Observatory. In that respect, Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights (6) provides, inter alia, for certain measures to promote cooperation, including the exchange of information, among Member States and between Member States and the Commission. (9) In its Recommendation of 26 March 2009 on strengthening security and fundamental freedoms on the internet (7), the European Parliament recommended that the Council preserve full and safe access to the internet while encouraging private/public cooperation in enhancing law enforcement cooperation. (10) In its Resolution of 22 September 2010 on enforcement of intellectual property rights in the internal market (8), the European Parliament called on the Member States and the Commission to extend the cooperation between the Office and national intellectual property offices so as to include the fight against infringements of intellectual property rights. (11) In its Resolution of 12 May 2011 on unlocking the potential of cultural and creative industries (9), the European Parliament urged the Commission to take into account the specific problems encountered by small and medium-sized enterprises when it comes to asserting their intellectual property rights and to promote best practice and effective methods to respect those rights. (12) In its Resolution of 6 July 2011 on a comprehensive approach on personal data protection in the European Union (10), the European Parliament called on the Commission to ensure full harmonisation and legal certainty, providing a uniform and high level of protection of individuals in all circumstances. (13) In view of the range of tasks assigned to the Observatory, a solution is needed to ensure an adequate and sustainable infrastructure for the fulfilment of its tasks. (14) Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (11) provides for administrative cooperation between the Office and the courts or authorities of the Member States, and the exchange of publications between the Office and the central industrial property offices of the Member States. On that basis, the Office has established cooperation with national offices that are active in the field of protection of intellectual property rights. Consequently, the Office already possesses, to a considerable extent, the necessary experience and expertise to provide an adequate and sustainable infrastructure in the field of the Observatory’s tasks. (15) The Office is therefore well placed to be entrusted with carrying out those tasks. (16) Those tasks should relate to all intellectual property rights covered by Directive 2004/48/EC, since in many cases, infringing acts affect a bundle of intellectual property rights. Furthermore, data and the exchange of best practices are needed on the entire abovementioned range of intellectual property rights, in order to obtain a complete picture of the situation and to enable comprehensive strategies to be devised with a view to reducing infringements of intellectual property rights. (17) The tasks that the Office should carry out can be linked to the enforcement and reporting measures laid down by Directive 2004/48/EC. Thus, the Office should provide services to national authorities or operators which affect, in particular, the homogenous implementation of the Directive and which are likely to facilitate its application. The Office’s tasks should therefore be considered as closely linked to the subject matter of acts approximating the laws, regulations and administrative provisions of the Member States. (18) Assembled by the Office, the Observatory should become a centre of excellence on information and data relating to infringements of intellectual property rights, by benefiting from the Office’s expertise, experience and resources. (19) The Office should offer a forum that brings together public authorities and the private sector, ensuring the collection, analysis and dissemination of relevant objective, comparable and reliable data regarding the value of intellectual property rights and infringements of those rights, identifying and promoting best practices and strategies to enforce intellectual property rights, and raising public awareness of the impact of infringements of intellectual property rights. Furthermore, the Office should fulfil additional tasks, such as improving the understanding of the value of intellectual property rights, fostering the exchange of information on new competitive business models which enlarge the legal offer of cultural and creative content, enhancing the expertise of persons involved in the enforcement of intellectual property rights by appropriate training measures, increasing knowledge of techniques to prevent counterfeiting, and improving cooperation with third countries and international organisations. The Commission should be associated with the activities undertaken by the Office under this Regulation. (20) The Office should thus facilitate and support the activities of national authorities, the private sector and the Union institutions relating to the enforcement of intellectual property rights and in particular their activities in the fight against infringements of those rights. The exercise by the Office of its powers under this Regulation does not prevent Member States from exercising their competences. The Office’s tasks and activities under this Regulation do not extend to participation in individual operations or investigations carried out by the competent authorities. (21) In order to fulfil those tasks in the most efficient manner, the Office should consult and cooperate with other authorities at national, European and, where appropriate, international levels, create synergies with the activities carried out by such authorities and avoid any duplication of measures. (22) The Office should implement the tasks and activities relating to the enforcement of intellectual property rights by making use of its own budgetary means. (23) With regard to representatives of the private sector, the Office should, when assembling the Observatory in the context of its activities, involve a representative selection of the economic sectors — including the creative industries — most concerned by or most experienced in the fight against infringements of intellectual property rights, in particular representatives of right holders, including authors and other creators, as well as internet intermediaries. Also, a proper representation of consumers and of small and medium-sized enterprises should be ensured. (24) The information obligations imposed by this Regulation on the Member States and on the private sector should not create unnecessary administrative burdens and should endeavour to avoid duplication as regards data already provided by Member States and private-sector representatives to Union institutions under existing Union reporting requirements. (25) Since the objective of this Regulation, namely to entrust the Office with tasks related to the enforcement of intellectual property rights, cannot be sufficiently achieved by the Member States and can therefore, by reason of its effect, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective, HAVE ADOPTED THIS REGULATION: Article 1 Subject matter and scope This Regulation entrusts the Office for Harmonization in the Internal Market (Trade Marks and Designs) (‘the Office’) with tasks aimed at facilitating and supporting the activities of national authorities, the private sector and the Union institutions in the fight against infringements of the intellectual property rights covered by Directive 2004/48/EC. In carrying out these tasks the Office shall organise, administer and support the gathering of experts, authorities and stakeholders assembled under the name ‘European Observatory on Infringements of Intellectual Property Rights’ (‘the Observatory’). The tasks and activities of the Office under this Regulation do not extend to participation in individual operations or investigations carried out by the competent authorities. Article 2 Tasks and activities 1. The Office shall have the following tasks: (a) improving understanding of the value of intellectual property; (b) improving understanding of the scope and impact of infringements of intellectual property rights; (c) enhancing knowledge of best public and private sector practices to protect intellectual property rights; (d) assisting in raising citizens’ awareness of the impact of infringements of intellectual property rights; (e) enhancing the expertise of persons involved in the enforcement of intellectual property rights; (f) enhancing knowledge of technical tools to prevent and tackle infringements of intellectual property rights, including tracking and tracing systems which help to distinguish genuine products from counterfeit ones; (g) providing mechanisms which help to improve the online exchange, between Member States’ authorities working in the field of intellectual property rights, of information relating to the enforcement of such rights, and fostering cooperation with and between those authorities; (h) working, in consultation with Member States, to foster international cooperation with intellectual property offices in third countries so as to build strategies and develop techniques, skills and tools for the enforcement of intellectual property rights. 2. In the fulfilment of the tasks set out in paragraph 1, the Office shall carry out the following activities in accordance with the work programme adopted pursuant to Article 7, and in line with Union law: (a) establishing a transparent methodology for the collection, analysis and reporting of independent, objective, comparable and reliable data relating to infringements of intellectual property rights; (b) collecting, analysing and disseminating relevant objective, comparable and reliable data regarding infringements of intellectual property rights; (c) collecting, analysing and disseminating relevant objective, comparable and reliable data regarding the economic value of intellectual property and its contribution to economic growth, welfare, innovation, creativity, cultural diversity, the creation of high-quality jobs and the development of high quality products and services within the Union; (d) providing regular assessments and specific reports by economic sector, geographic area and type of intellectual property right infringed, which evaluate, inter alia, the impact of infringements of intellectual property rights on society and the economy, including an assessment of the effects on small and medium-sized enterprises, as well as on health, the environment, safety and security; (e) collecting, analysing and disseminating information regarding best practices between the representatives meeting as the Observatory, and, if applicable, making recommendations for strategies based on such practices; (f) drawing up reports and publications to raise awareness amongst Union citizens of the impact of infringements of intellectual property rights and to that end, organising conferences, events and meetings at European and international levels as well as assisting national and Europe-wide actions, including online and offline campaigns, principally by providing data and information; (g) monitoring the development of new competitive business models which enlarge the legal offer of cultural and creative content, and encouraging the exchange of information and raising consumer awareness in this respect; (h) developing and organising online and other forms of training for national officials involved in the protection of intellectual property rights; (i) organising ad hoc meetings of experts, including academic experts and relevant representatives of civil society, to support its work under this Regulation; (j) identifying and promoting technical tools for professionals and benchmark techniques, including tracking and tracing systems which help to distinguish genuine products from counterfeit ones; (k) working with national authorities and the Commission to develop an online network facilitating the exchange of information on infringements of intellectual property rights between public administrations, bodies and organisations in the Member States dealing with the protection and enforcement of those rights; (l) working in cooperation with, and building synergies between, the central industrial property offices of the Member States, including the Benelux Office for Intellectual Property and other Member States’ authorities working in the field of intellectual property rights, with a view to developing and promoting techniques, skills and tools relating to the enforcement of intellectual property rights, including training programmes and awareness campaigns; (m) developing, in consultation with the Member States, programmes for the provision of technical assistance to third countries as well as developing and delivering specific training programmes and events for officials from third countries who are involved in the protection of intellectual property rights; (n) making recommendations to the Commission on issues falling within the scope of this Regulation, on the basis of a request from the Commission; (o) carrying out similar activities necessary in order to enable the Office to fulfil the tasks set out in paragraph 1. 3. In carrying out the tasks and activities referred to in paragraphs 1 and 2, the Office shall comply with existing provisions of Union law on data protection. Article 3 Financing The Office shall at all times ensure that the activities entrusted to it by this Regulation are carried out by making use of its own budgetary means. Article 4 Meetings of the Observatory 1. In order to carry out the activities referred to in Article 2(2), the Office shall at least once per year invite to meetings of the Observatory representatives from public administrations, bodies and organisations in the Member States dealing with intellectual property rights and representatives from the private sector, for the purpose of their participation in the Office’s work under this Regulation. 2. Private-sector representatives invited to meetings of the Observatory shall include a broad, representative and balanced range of Union and national bodies representing the different economic sectors, including the creative industries, most concerned by or most experienced in the fight against infringements of intellectual property rights. Consumer organisations, small and medium-sized enterprises, authors and other creators shall be properly represented. 3. The Office shall invite each Member State to send at least one representative from its public administration to meetings of the Observatory. In that context, Member States shall ensure continuity in the Observatory’s work. 4. The meetings referred to in paragraph 1 may be complemented by working groups within the Observatory made up of representatives from Member States and representatives from the private sector. 5. Where appropriate, and in addition to the meetings referred to in paragraph 1, the Office shall organise meetings consisting of: (a) representatives from the public administrations, bodies and organisations in the Member States; or (b) private-sector representatives. 6. Members or other representatives of the European Parliament and representatives from the Commission shall be invited to any of the meetings covered by this Article, either as participants or observers, as appropriate. 7. The names of the representatives attending, the agenda and the minutes of the meetings referred to in this Article shall be published on the Office’s website. Article 5 Information obligations 1. As appropriate, in accordance with national law, including the law governing the processing of personal data, Member States shall, at the request of the Office or on their own initiative: (a) inform the Office of their overall policies and strategies on the enforcement of intellectual property rights and any changes thereto; (b) provide available statistical data on infringements of intellectual property rights; (c) inform the Office of important case-law. 2. Without prejudice to the law governing the processing of personal data and to the protection of confidential information, private-sector representatives meeting as the Observatory shall, when possible, at the request of the Office: (a) inform the Office of policies and strategies in their field of activity on the enforcement of intellectual property rights and any changes thereto; (b) provide statistical data on infringements of intellectual property rights in their field of activity. Article 6 The Office 1. The relevant provisions of Title XII of Regulation (EC) No 207/2009 shall apply to the carrying-out of the tasks and activities provided for under this Regulation. 2. Using the powers conferred by Article 124 of Regulation (EC) No 207/2009, the President of the Office shall adopt the internal administrative instructions and shall publish the notices that are necessary for the fulfilment of all the tasks entrusted to the Office by this Regulation. Article 7 Content of the work programme and of the management report 1. The Office shall draw up an annual work programme that appropriately prioritises the activities under this Regulation and for the meetings of the Observatory, in line with the Union’s policies and priorities in the field of protection of intellectual property rights and in cooperation with the representatives referred to in point (a) of Article 4(5). 2. The work programme referred to in paragraph 1 shall be submitted to the Office’s Administrative Board for information. 3. The management report provided for in point (d) of Article 124(2) of Regulation (EC) No 207/2009 shall contain at least the following information concerning the Office’s tasks and activities under this Regulation: (a) a review of the main activities carried out during the preceding calendar year; (b) the results achieved during the preceding calendar year, accompanied, where appropriate, by sectoral reports analysing the situation in the different industry and product sectors; (c) an overall assessment of the fulfilment of the Office’s tasks as provided for in this Regulation and in the work programme drawn up in accordance with paragraph 1; (d) an overview of the activities that the Office intends to undertake in the future; (e) observations on the enforcement of intellectual property rights and potential future policies and strategies, including on how to enhance effective cooperation with and between Member States; (f) an overall assessment of the proper representation in the Observatory of all the actors mentioned in Article 4(2). Before submitting the management report to the European Parliament, the Commission and the Administrative Board, the President of the Office shall consult the representatives referred to in point (a) of Article 4(5) on the relevant parts of the report. Article 8 Evaluation 1. The Commission shall adopt a report evaluating the application of this Regulation by 6 June 2017. 2. The evaluation report shall assess the operation of this Regulation, in particular as regards its impact on the enforcement of intellectual property rights in the internal market. 3. The Commission shall, when preparing the evaluation report, consult the Office, the Member States and the representatives meeting as the Observatory on the issues referred to in paragraph 2. 4. The Commission shall transmit the evaluation report to the European Parliament, the Council and the European Economic and Social Committee and shall undertake a broad consultation among stakeholders on the evaluation report. Article 9 Entry into force This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union. This Regulation shall be binding in its entirety and directly applicable in all Member States. Done at Strasbourg, 19 April 2012. For the European Parliament The President M. SCHULZ For the Council The President M. BØDSKOV (1) OJ C 376, 22.12.2011, p. 62. (2) Position of the European Parliament of 14 February 2012 (not yet published in the Official Journal) and decision of the Council of 22 March 2012 (not yet published in the Official Journal). (3) OJ C 253, 4.10.2008, p. 1. (4) OJ C 56, 6.3.2010, p. 1. (5) OJ C 140, 29.5.2010, p. 22. (6) OJ L 157, 30.4.2004, p. 45. Corrected version in OJ L 195, 2.6.2004, p. 16. (7) OJ C 117 E, 6.5.2010, p. 206. (8) OJ C 50 E, 21.2.2012, p. 48. (9) Not yet published in the Official Journal. (10) Not yet published in the Official Journal. (11) OJ L 78, 24.3.2009, p. 1.

Summary: Intellectual property rights infringements Intellectual property rights infringements SUMMARY OF: Regulation (EU) No 386/2012 on the European Observatory on Infringements of Intellectual Property Rights WHAT IS THE AIM OF THIS REGULATION? It entrusts the EU Intellectual Property Office, EUIPO (formerly the Office for Harmonization in the Internal Market, OHIM), with tasks supporting the activities of national authorities, the private sector and EU institutions in the fight against infringements of intellectual property rights (IPR) covered by Directive 2004/48/EC. KEY POINTS EUIPO is responsible for bringing together experts, authorities and stakeholders under the umbrella of the European Observatory on Infringements of Intellectual Property Rights (the observatory), although its tasks do not extend to participation in individual operations or investigations carried out by the competent authorities. It has the following tasks: improving understanding of the value of intellectual property; improving understanding of the scope and impact of IPR infringements; enhancing knowledge of best public and private sector practices to protect IPR; helping to raise citizens’ awareness of the impact of IPR infringements; enhancing the expertise of persons involved in IPR enforcement; enhancing knowledge of technical tools to prevent and tackle IPR infringements, including tracking and tracing systems which help to distinguish genuine products from counterfeit ones; providing mechanisms which help to improve the online exchange, between EU countries working on IPR, of information relating to enforcement, and fostering cooperation; working, in consultation with EU countries, to foster international cooperation with IPR bodies in non-EU countries to build strategies and develop techniques, skills and tools for IPR enforcement. Observatory meetings At least once a year, EUIPO will host meetings of representatives from public administrations and organisations from EU countries dealing with IPR and a broad, representative and balanced range of private-sector representatives most concerned by or most experienced in the fight against IPR infringements (rights holders, including authors and other creators) as well as internet intermediaries. Consumer organisations, small and medium-sized enterprises, authors and other creators must be properly represented. Representatives of the European Parliament and from the European Commission are invited to participate or observe, as appropriate. Private-sector representatives meeting as part of the observatory are expected to keep EUIPO informed of their IPR-enforcement policies and strategies and to provide statistical data on infringements in their field of activity. Work programme EUIPO will draw up an annual work programme prioritising the observatory’s activities set out in the regulation and for the observatory meetings, in line with the EU's IPR policies and priorities and in cooperation with representatives from the observatory. Management report The annual management report contains at least the following information concerning EUIPO’s tasks and activities under this regulation: a review of the main activities carried out during the year; the results achieved during the year, accompanied by reports analysing the situation in the different industry and product sectors; an overall assessment of the fulfilment of EUIPO’s tasks; an overview of future activities; observations on the enforcement of IPR and potential future policies and strategies, including how to enhance effective cooperation with and between EU countries; an overall assessment of representation in the observatory. Evaluation A report will evaluate the regulation’s application with particular regard to its impact on IPR enforcement in the EU’s single market. FROM WHEN DOES THIS REGULATION APPLY? It applies from 5 June 2012. BACKGROUND For more information, see: Enforcement of intellectual property rights (European Commission) Counterfeit, piracy and other IPR violations (European Commission). MAIN DOCUMENT Regulation (EU) No 386/2012 of the European Parliament and of the Council of 19 April 2012 on entrusting the Office for Harmonization in the Internal Market (Trade Marks and Designs) with tasks related to the enforcement of intellectual property rights, including the assembling of public and private-sector representatives as a European Observatory on Infringements of Intellectual Property Rights (OJ L 129, 16.5.2012, pp. 1-6) RELATED DOCUMENTS Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (codification) (OJ L 154, 16.6.2017, pp. 1-99) Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ L 119, 4.5.2016, pp. 1-88) Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions — A Single Market for Intellectual Property Rights: Boosting creativity and innovation to provide economic growth, high quality jobs and first class products and services in Europe (COM(2011) 287 final, 24.5.2011) Council resolution of 25 September 2008 on a comprehensive European anti-counterfeiting and anti-piracy plan (OJ C 253, 4.10.2008, pp. 1-2) Directive 2004/48/EC of the European Parliament and of the Council on the enforcement of intellectual property rights (OJ L 157, 30.4.2004, pp. 45-86). Text republished in corrigendum (OJ L 195, 2.6.2004, pp. 16-25). See consolidated version. last update 06.12.2017


27.6.2014 EN Official Journal of the European Union L 189/50 REGULATION (EU) No 654/2014 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 15 May 2014 concerning the exercise of the Union's rights for the application and enforcement of international trade rules and amending Council Regulation (EC) No 3286/94 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 Organization THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty on the Functioning of the European Union, and in particular Article 207 (2) thereof, Having regard to the proposal from the European Commission, After transmission of the draft legislative act to the national parliaments, Acting in accordance with the ordinary legislative procedure (1), Whereas: (1) The Union has concluded a number of multilateral, regional and bilateral international trade agreements creating rights and obligations for the mutual benefit of the parties. (2) It is essential that the Union possess appropriate instruments to ensure the effective exercise of the Union's rights under international trade agreements in order to safeguard its economic interests. This is particularly the case in situations where third countries enact trade restrictive measures that diminish the benefits accruing to the Union's economic operators under international trade agreements. The Union should be in a position to react swiftly and in a flexible manner in the context of the procedures and deadlines set out by the international trade agreements which it has concluded. There is therefore a need for rules defining the framework for exercising the Union's rights in certain specific situations. (3) The dispute settlement mechanisms set up by the Agreement establishing the World Trade Organization (WTO) and by other international trade agreements, including regional or bilateral agreements, aim at finding a positive solution to any disputes arising between the Union and the other party or parties to those agreements. The Union should, nevertheless, be able to suspend concessions or other obligations, in accordance with those dispute settlement mechanisms, when other avenues to find a positive solution to a dispute have proven unsuccessful. Action by the Union in such cases should serve the purpose of inducing compliance of the third country concerned with the relevant international trade rules in order to restore a situation of reciprocal benefits. (4) Under the WTO Agreement on Safeguards, a WTO member proposing to apply a safeguard measure or seeking an extension of a safeguard measure has to endeavour to maintain a substantially equivalent level of concessions and other obligations between it and the exporting Members, which would be affected by such a measure. Similar rules are laid down in other international trade agreements concluded by the Union, including regional or bilateral agreements. The Union should take rebalancing measures by suspending concessions or other obligations in cases where the third country concerned implements no adequate and proportionate adjustments. Action by the Union in such cases should serve the purpose of inducing the introduction of trade-enhancing measures by third countries in order to restore a situation of reciprocal benefits. (5) Article XXVIII of the General Agreement on Tariffs and Trade 1994 (GATT 1994) and the related Understanding govern the modification or withdrawal of concessions established in the tariff schedules of WTO Members. WTO Members affected by any such modification are entitled, under certain conditions, to withdraw substantially equivalent concessions. The Union should adopt rebalancing measures in such cases, unless compensatory adjustments are agreed. Action by the Union should be aimed at inducing third countries to implement trade-enhancing measures. (6) The Union should have the possibility to enforce its rights in the area of public procurement when a trade partner fails to respect its commitments under the WTO Agreement on Government Procurement (GPA) or other international trade agreements. The GPA states that any dispute arising thereunder is not to result in the suspension of concessions or other obligations under any other covered agreement of the WTO. The Union's action should be aimed at ensuring the maintenance of a substantially equivalent level of concessions, as laid down in the relevant international trade agreements. (7) Member States should ensure the application within their respective territories of commercial policy measures in the field of public procurement in the manner that is best suited to their administrative structures and practices, while respecting Union law. (8) Commercial policy measures adopted under this Regulation should be selected and designed on the basis of objective criteria, including the effectiveness of the measures in inducing compliance of third countries with international trade rules, their potential to provide relief to economic operators within the Union affected by third country measures, and the aim of minimising negative economic impacts on the Union, including with regard to essential raw materials. (9) This Regulation should focus on those measures in respect of which the Union has experience in design and application. The possibility to extend its scope in order to provide for the adoption of measures in the sector of intellectual property rights and additional measures concerning services should be assessed as part of the review on the functioning of this Regulation, with due regard to the specificities of each area. (10) When enforcing the Union's rights, the origin of a good should be determined in accordance with Council Regulation (EEC) No 2913/92 (2). When enforcing the Union's rights following dispute settlement in the area of public procurement, the origin of a service should be determined on the basis of the origin of the natural or legal person providing it. Contracting authorities or entities should apply normal precautions and exercise due diligence when assessing information and guarantees provided by tenderers as regards the origin of goods and services. (11) The Commission should review the scope, functioning and efficiency of this Regulation, including possible measures in the sector of intellectual property rights and additional measures concerning services, no later than three years after the first instance of its implementation or no later than five years from its date of entry into force, whichever is the earlier. The Commission should report on its assessment to the European Parliament and the Council. The review may be followed up by appropriate legislative proposals. (12) It is important to ensure an effective communication and exchange of views between the Commission on the one hand and the European Parliament and the Council on the other, in particular on disputes under international trade agreements that may lead to the adoption of measures under this Regulation. (13) Council Regulation (EC) No 3286/94 (3) should be amended in order to refer to this Regulation with regard to the implementation of commercial policy measures. (14) In order to ensure uniform conditions for the implementation of this Regulation, implementing powers should be conferred on the Commission. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council (4). (15) In light of the high complexity involved in the examination of the multiple impacts that commercial policy measures adopted under this Regulation may have, and with a view to allowing sufficient opportunities to achieve the widest possible support, implementing acts should not be adopted by the Commission where, exceptionally, the committee referred to in this Regulation delivers no opinion on the draft implementing act presented by the Commission. (16) In order to safeguard the Union's interests, the Commission should adopt immediately applicable implementing acts where, in duly justified cases relating to the need to adapt commercial policy measures to the behaviour of the third party concerned, imperative grounds of urgency so require. (17) This Regulation is without prejudice to the possible adoption of commercial policy measures on the basis of other relevant Union acts or of the provisions of the Treaty on the Functioning of the European Union, while respecting the applicable provisions in international trade agreements on the suspension or withdrawal of concessions or other obligations, HAVE ADOPTED THIS REGULATION: Article 1 Subject matter This Regulation lays down rules and procedures to ensure an effective and timely exercise of the Union's rights to suspend or withdraw concessions or other obligations under international trade agreements, with the intention of: (a) responding to breaches by third countries of international trade rules which affect the Union's interests, with a view to seeking a satisfactory solution that restores benefits for the Union's economic operators; (b) rebalancing concessions or other obligations in the trade relations with third countries, when the treatment accorded to goods from the Union is altered in a way that affects the Union's interests. Article 2 Definitions For the purposes of this Regulation the following definitions apply: (a) "country" means any State or separate customs territory; (b) "concessions or other obligations" means tariff concessions or any other benefits that the Union has committed itself to applying in its trade with third countries by virtue of international trade agreements to which it is a party; (c) "level of nullification or impairment" means the degree to which the benefits accruing to the Union under an international trade agreement are affected. Except as otherwise defined in the relevant agreement, it includes any adverse economic impact resulting from a third country measure; (d) "mandatory price penalty" means an obligation on contracting authorities or entities conducting public procurement procedures to increase, subject to certain exceptions, the price of services and/or goods originating in certain third countries that have been offered in contract award procedures. Article 3 Scope This Regulation applies: (a) following the adjudication of trade disputes under the WTO Understanding on Rules and Procedures Governing the Settlement of Disputes (WTO Dispute Settlement Understanding), when the Union has been authorised to suspend concessions or other obligations under the multilateral and plurilateral agreements covered by the WTO Dispute Settlement Understanding; (b) following the adjudication of trade disputes under other international trade agreements, including regional or bilateral agreements, when the Union has the right to suspend concessions or other obligations under such agreements; (c) for the rebalancing of concessions or other obligations, to which the application of a safeguard measure by a third country may give right pursuant to Article 8 of the WTO Agreement on Safeguards, or to the provisions on safeguards included in other international trade agreements, including regional or bilateral agreements; (d) in cases of modification of concessions by a WTO member under Article XXVIII of the GATT 1994, where no compensatory adjustments have been agreed. Article 4 Exercise of the Union's rights 1. Where action is necessary to safeguard the Union's interests in the cases referred to in Article 3, the Commission shall adopt implementing acts determining the appropriate commercial policy measures. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 8(2). 2. Implementing acts adopted pursuant to paragraph 1 shall meet the following conditions: (a) where concessions or other obligations are suspended following the adjudication of a trade dispute under the WTO Dispute Settlement Understanding, their level shall not exceed the level authorised by the WTO Dispute Settlement Body; (b) where concessions or other obligations are suspended following the discharge of an international dispute settlement procedure under other international trade agreements, including regional or bilateral agreements, their level shall not exceed the level of nullification or impairment as a result of the third country measure concerned, as determined by the Commission or through recourse to arbitration, as the case may be; (c) in the case of rebalancing of concessions or other obligations under provisions on safeguards in international trade agreements, the Union's action shall be substantially equivalent to the level of concessions or other obligations affected by the safeguard measure, in accordance with the conditions of the WTO Agreement on Safeguards or of the provisions on safeguards in other international trade agreements, including regional or bilateral agreements, under which the safeguard measure is applied; (d) where concessions are withdrawn in the trade with a third country in connection with Article XXVIII of the GATT 1994 and the related Understanding (5), they shall be substantially equivalent to the concessions modified or withdrawn by that third country, in accordance with the terms established in Article XXVIII of the GATT 1994 and the related Understanding. 3. Commercial policy measures referred to in paragraph 1 shall be determined on the basis of the following criteria, in light of available information and of the Union's general interest: (a) effectiveness of the measures in inducing compliance of third countries with international trade rules; (b) potential of the measures to provide relief to economic operators within the Union affected by third country measures; (c) availability of alternative sources of supply for the goods or services concerned, in order to avoid or minimise any negative impact on downstream industries, contracting authorities or entities, or final consumers within the Union; (d) avoidance of disproportionate administrative complexity and costs in the application of the measures; (e) any specific criteria that may be established in international trade agreements in connection with the cases referred to in Article 3. Article 5 Commercial policy measures 1. Without prejudice to any international agreement to which the Union is a party, the commercial policy measures that may be enacted by means of an implementing act pursuant to Article 4(1) shall consist of: (a) the suspension of tariff concessions and the imposition of new or increased customs duties, including the re-establishment of customs duties at the most favoured nation level or the imposition of customs duties beyond the most favoured nation level, or the introduction of any additional charge on imports or exports of goods; (b) the introduction or increase of quantitative restrictions on imports or exports of goods, whether made effective through quotas, import or export licences or other measures; (c) the suspension of concessions regarding goods, services or suppliers in the area of public procurement, through: (i) the exclusion from public procurement of suppliers of goods or services established in and operating from the third country concerned and/or of tenders the total value of which is made up of more than 50 % of goods or services originating in the third country concerned; and/or (ii) the imposition of a mandatory price penalty on tenders of suppliers of goods or services established in and operating from the third country concerned and/or on that part of the tender consisting of goods or services originating in the third country concerned. 2. Measures adopted pursuant to paragraph 1(c) shall: (a) include thresholds, according to the characteristics of the goods or services concerned, above which the exclusion and/or mandatory price penalty is to apply, taking into account the provisions of the trade agreement concerned and the level of nullification or impairment; (b) determine the sectors or the categories of goods or services to which they apply, as well as any applicable exceptions; (c) determine the contracting authorities or entities or categories of contracting authorities or entities, listed by Member State, whose procurement is covered. To provide the basis for this determination, each Member State shall submit a list of appropriate contracting authorities or entities or categories of contracting authorities or entities. The measures shall ensure that an appropriate level of suspension of concessions or other obligations and a fair distribution among Member States is achieved. Article 6 Rules of origin 1. The origin of a good shall be determined in accordance with Regulation (EEC) No 2913/92. 2. The origin of a service shall be determined on the basis of the origin of the natural or legal person providing it. The origin of the service provider shall be deemed to be: (a) in the case of a natural person, the country of which the person is a national or where he has a right of permanent residence; (b) in the case of a legal person, either of the following: (i) if the service is provided other than through a commercial presence within the Union, the country where the legal person is constituted or otherwise organised under the laws of that country and in the territory of which the legal person is engaged in substantive business operations; (ii) if the service is provided through a commercial presence within the Union, the Member State where the legal person is established and in the territory of which it is engaged in substantive business operations such that it has a direct and effective link with the economy of that Member State. For the purposes of point (ii) of point (b) of the first subparagraph, if the legal person providing the service is not engaged in substantive business operations such that it has a direct and effective link with the economy of the Member State in which it is established, the origin of that legal person shall be deemed to be the origin of the natural or legal persons which own or control it. The legal person providing the service shall be considered to be "owned" by persons of a given country if more than 50 % of the equity interest in it is beneficially owned by persons of that country and "controlled" by persons of a given country if such persons have the power to name a majority of its directors or otherwise to legally direct its actions. Article 7 Suspension, modification and repeal of measures 1. Where, after the adoption of an implementing act pursuant to Article 4(1), the third country concerned accords adequate and proportionate compensation to the Union in the cases referred to in Article 3(1)(a) and (b), the Commission may suspend the application of that implementing act for the duration of the compensation period. The suspension shall be decided in accordance with the examination procedure referred to in Article 8(2). 2. The Commission shall repeal an implementing act adopted under Article 4(1) in any of the following circumstances: (a) when the third country whose measures were found to be in breach of international trade rules in a dispute settlement procedure brings itself into compliance, or where a mutually satisfactory solution has otherwise been reached; (b) in cases of rebalancing of concessions or other obligations following the adoption by a third country of a safeguard measure, when the safeguard measure is withdrawn or expires, or when the third country concerned accords adequate and proportionate compensation to the Union after the adoption of an implementing act under Article 4(1); (c) in cases of modification of concessions by a WTO member under Article XXVIII of the GATT 1994, when the third country concerned accords adequate and proportionate compensation to the Union after the adoption of an implementing act under Article 4(1). The repeal referred to in the first subparagraph shall be decided in accordance with the examination procedure referred to in Article 8(2). 3. Where it is necessary to make adjustments to commercial policy measures adopted under this Regulation, subject to Article 4(2) and (3), the Commission may introduce any appropriate amendments in accordance with the examination procedure referred to in Article 8(2). 4. On duly justified imperative grounds of urgency relating to the termination or the modification of the third country measure concerned, the Commission shall adopt immediately applicable implementing acts suspending, amending or repealing implementing acts adopted under Article 4(1), as provided for in this Article, in accordance with the procedure referred to in Article 8(3). Article 8 Committee procedure 1. The Commission shall be assisted by the committee established by Regulation (EC) No 3286/94. That committee shall be a committee within the meaning of Article 3 of Regulation (EU) No 182/2011. 2. Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 shall apply. Where the Committee delivers no opinion, the Commission shall not adopt the draft implementing act and the third subparagraph of Article 5(4) of Regulation (EU) No 182/2011 shall apply. 3. Where reference is made to this paragraph, Article 8 of Regulation (EU) No 182/2011 in conjunction with Article 5 thereof, shall apply. Article 9 Information gathering 1. The Commission shall seek information and views regarding the Union's economic interests in specific goods or services or in specific sectors, in the application of this Regulation, through a notice in the Official Journal of the European Union or through other suitable public communication means, indicating the period within which input is to be submitted. The Commission shall take the input received into account. 2. Information received pursuant to this Regulation shall be used only for the purpose for which it was requested. 3. Neither the European Parliament, nor the Council, nor the Commission, nor Member States, nor their respective officials shall reveal any information of a confidential nature received pursuant to this Regulation, without specific permission from the supplier of such information. 4. The supplier of information may request that information supplied be treated as confidential. In such cases, it shall be accompanied by a non-confidential summary which presents the information in a generalised form or a statement of the reasons why the information cannot be summarised. 5. If it appears that a request for confidentiality is not justified and if the supplier is unwilling either to make the information public or to authorise its disclosure in generalised or summary form, the information in question may be disregarded. 6. Paragraphs 2 to 5 shall not preclude the disclosure of general information by the institutions of the Union and the authorities of the Member States. Such disclosure must take into account the legitimate interest of the parties concerned in not having their business secrets divulged. Article 10 Review 1. No later than three years after the first instance of the adoption of an implementing act or no later than 18 July 2019, whichever is the earlier, the Commission shall review the scope of this Regulation, particularly as regards the commercial policy measures that may be adopted, as well as its implementation, and shall report its findings to the European Parliament and the Council. 2. Notwithstanding paragraph 1, the Commission shall undertake a review aimed at envisaging under this Regulation additional commercial policy measures suspending concessions or other obligations in the field of trade in services. The Commission shall examine, inter alia, the following aspects: (a) international developments with regard to the suspension of other obligations under the General Agreement on Trade in Services (GATS); (b) developments within the Union with regard to the adoption of common rules on services sectors; (c) the effectiveness of possible additional commercial policy measures as a means to enforce the Union's rights under international trade agreements; (d) available mechanisms to ensure the practical implementation, in a uniform and efficient manner, of possible additional commercial policy measures concerning services; and (e) implications for service providers present in the Union at the time of adoption of implementing acts under this Regulation. The Commission shall report its initial assessment to the European Parliament and the Council by 18 July 2017. Article 11 Amendments to other acts In Article 13 of Regulation (EC) No 3286/94, paragraph 3 is replaced by the following: "3. Where the Union, having acted in accordance with Article 12(2), has to take a decision on the measures of commercial policy to be adopted pursuant to Article 11(2)(c) or pursuant to Article 12, it shall act, without delay, in accordance with Article 207 of the Treaty on the Functioning of the European Union and, as appropriate, Regulation (EU) No 654/2014 of the European Parliament and of the Council (6) or any other applicable procedures. Article 12 Entry into force This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union. This Regulation shall be binding in its entirety and directly applicable in all Member States. Done at Brussels, 15 May 2014. For the European Parliament The President M. SCHULZ For the Council The President D. KOURKOULAS (1) Position of the European Parliament of 2 April 2014 (not yet published in the Official Journal) and decision of the Council of 8 May 2014. (2) Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ L 302, 19.10.1992, p. 1). (3) 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 Organization (OJ L 349, 31.12.1994, p. 71). (4) Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by the Member States of the Commission's exercise of implementing powers (OJ L 55, 28.2.2011, p. 13). (5) Understanding "Interpretation and Application of Article XXVIII". Statement by the Commission The Commission welcomes the adoption of the Regulation of the European Parliament and of the Council concerning the exercise of the Union’s rights for the application and enforcement of international trade rules and amending Council Regulation (EC) No 3286/94. Under the Regulation, the Commission is empowered to adopt implementing acts in certain specific situations, on the basis of objective criteria and subject to the control of the Member States. In exercising that empowerment, the Commission intends to act in accordance with this Declaration. When preparing draft implementing acts, the Commission will undertake extensive consultations with a view to ensuring that all relevant interests are duly taken into account. Through those consultations, the Commission expects to receive input from private stakeholders affected by third country measures or by possible commercial policy measures to be adopted by the Union. Similarly, the Commission expects to receive input from public authorities that may be involved in the implementation of possible commercial policy measures to be adopted by the Union. In the case of measures in the field of public procurement, in particular input from Member States’ public authorities will be duly taken into account in the preparation of draft implementing acts. The Commission recognizes the importance of Member States receiving timely information when it is considering the adoption of implementing acts under this Regulation so as to enable them to contribute to fully informed decisions and will act to achieve this objective. The Commission confirms that it will promptly transmit to the Parliament and to the Council draft implementing acts that it submits to the committee of Member States. Similarly, it will promptly transmit to the Parliament and the Council final draft implementing acts following the delivery of opinions in the committee. The Commission will keep the Parliament and the Council regularly informed of international developments that may lead to situations requiring the adoption of measures under the Regulation. This will be done through the responsible committees in Council and in Parliament. The Commission welcomes the Parliament’s intention to promote a structured dialogue on dispute settlement and enforcement issues and will fully engage in dedicated sessions with the responsible Parliamentary committee to exchange views on trade disputes and enforcement actions, including with regard to impacts on Union industries. Finally, the Commission confirms that it attaches great importance to ensuring that the Regulation is an effective and efficient tool for the enforcement of the Union’s rights under international trade agreements, including in the field of trade in services. Therefore, the Commission will, in accordance with the provisions of the Regulation, review the scope of Article 5 with a view to covering additional commercial policy measures concerning trade in services as soon as the conditions for ensuring the workability and effectiveness of such measures are present.

Summary: EU rights to apply and enforce international trade rules EU rights to apply and enforce international trade rules SUMMARY OF: Regulation (EU) No 654/2014 — the EU’s rights to apply and enforce international trade rules — amending Regulation (EC) No 3286/94 laying down procedures to ensure the EU’s rights under international trade rules WHAT IS THE AIM OF THE REGULATION? It ensures that the EU is able to enforce and exercise its rights under international trade agreements by adopting trade policy measures. KEY POINTS The regulation sets out rules and procedures for the EU to suspend or withdraw its obligations under an international trade agreement in order to: respond to breaches of international trade rules by non-EU countries and enforce a judicial ruling in favour of the EU, to obtain a satisfactory solution that restores benefits for EU businesses; rebalance obligations under and in line with a trade agreement, when non-EU countries alter the treatment of goods from the EU, either temporarily through a safeguard measure or long-term through modifying tariff concessions. Action To safeguard the EU’s interests, the European Commission can adopt implementing acts to adapt its trade policy in response to the actions of the non-EU country concerned. In urgent cases, the Commission can immediately adopt applicable implementing acts. The Commission, assisted by the EU Member States, consults with relevant stakeholders before adopting these acts. Available trade policy measures These consist of: suspending tariff concessions and imposing new or increased customs duties; introducing or increasing quantitative restrictions (quotas) on imports or exports of goods; suspending concessions and introducing certain restrictions in the area of public procurement. Determining appropriate measures Trade policy measures are determined based on the following: effectiveness of the measures in inducing the non-EU country to comply with international trade rules; potential of the measures to provide relief to businesses within the EU affected by non-EU country measures; availability of alternative sources of supply for the goods or services concerned; avoiding disproportionate administrative complexity and costs in applying the measures; measures must be proportionate to and must not exceed the harm that they are introduced to counteract. Revision of the regulation Because a current lack of new appointments to the Appellate Body of the World Trade Organization (WTO) has meant that the second tier of its dispute settlement mechanism is not able to function, amending Regulation (EU) 2021/167 introduced some changes to Regulation (EU) No 654/2014. The amending Regulation (EU) 2021/167: allows enforcement action in situations where: the EU obtains a favourable ruling from a WTO dispute settlement panel,the process is then blocked because the non-EU country appeals to the non-functioning WTO Appellate Body, and does not agree to interim appeal arbitration under Article 25 of the WTO Dispute Settlement Understanding; allows enforcement action when: a trade partner under a bilateral or regional trade agreement imposes illegal trade measures,subsequently does not take the steps necessary for the dispute settlement process under that agreement to function; extends the scope of possible countermeasures to trade in services and some trade-related aspects of intellectual property rights. This extension is accompanied by safeguards to ensure that the most efficient and proportionate countermeasures are used and that EU Member States’ authorities and stakeholders are consulted. FROM WHEN DOES THE REGULATION APPLY? Regulation (EU) No 654/2014 has applied since 17 July 2014. Amending Regulation (EU) 2021/167 has applied since 13 February 2021. BACKGROUND For further information, see: Dispute settlement (European Commission). MAIN DOCUMENT Regulation (EU) No 654/2014 of the European Parliament and of the Council of 15 May 2014 concerning the exercise of the Union’s rights for the application and enforcement of international trade rules and amending Council Regulation (EC) No 3286/94 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 Organization (OJ L 189, 27.6.2014, pp. 50-58) Successive amendments to Regulation (EU) No 654/2014 have been incorporated into the original text. This consolidated version is of documentary value only. RELATED DOCUMENTS Commission Implementing Regulation (EU) 2018/886 of 20 June 2018 on certain commercial policy measures concerning certain products originating in the United States of America and amending Implementing Regulation (EU) 2018/724 (OJ L 158, 21.6.2018, pp. 5-18) Commission Implementing Regulation (EU) 2018/724 of 16 May 2018 on certain commercial policy measures concerning certain products originating in the United States of America (OJ L 122, 17.5.2018, pp. 14-28) See consolidated version. Report from the Commission to the European Parliament and the Council — Initial Review of the scope of the Enforcement Regulation (COM(2017) 373 final, 11.7.2017) Regulation (EU) 2015/1843 of the European Parliament and of the Council of 6 October 2015 laying down Union procedures in the field of the common commercial policy in order to ensure the exercise of the Union’s rights under international trade rules, in particular those established under the auspices of the World Trade Organization (codification) (OJ L 272, 16.10.2015, pp. 1-13) Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code (OJ L 269, 10.10.2013, pp. 1-101) See consolidated version. last update 26.03.2021