EU TFEU: Agricultural countervailing import and export charges

If EU agriculutural products are outside a common market organisation and the internal market is disrupted by national measures, the Commission can decide on countervailing charges to offset the imbalance.

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Article 38 of the Treaty establishing the European Community (TEC) is one of those provisions, where the intergovernmental conference (IGC 2007) had nothing specific to say in the Treaty of Lisbon (ToL). Cf. OJ 17.12.2007 C 306/54.

We fetch the current Article 38 TEC from the latest consolidated version of the treaties (OJ 29.12.2006 C 321 E/57), add the numbering of the Tables of equivalences as well as the headings indicating the context of the provision (OJ 17.12.2007 C 306/207-208) and watch out for possible horizontal amendments (none, as far as I see). Here is what the Article should look like, before we check against a few earlier consolidations (IIEA, FCO, Statewatch and Fischer):

Part Three Policies and internal actions of the Union

Title II (renumbered Title III) Agriculture and fisheries

Article 38 TFEU (ToL), renumbered Article 44 TFEU

Where in a Member State a product is subject to a national market organisation or to internal rules having equivalent effect which affect the competitive position of similar production in another Member State, a countervailing charge shall be applied by Member States to imports of this product coming from the Member State where such organisation or rules exist, unless that State applies a countervailing charge on export.

The Commission shall fix the amount of these charges at the level required to redress the balance; it may also authorise other measures, the conditions and details of which it shall determine.

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If we look at the draft Treaty establishing a Constitution for Europe, we notice only the more developed terminology for statutory instruments proposed by the European Convention and abandoned by the Lisbon Treaty as part of the ‘constitutional concept’ (OJ 18.7.2003 C 169/52):

Article III-128 Draft Constitution

Where in a Member State a product is subject to a national market organisation or to internal rules having equivalent effect which affect the competitive position of similar production in another Member State, a countervailing charge shall be applied by Member States to imports of this product coming from the Member State where such organisation or rules exist, unless that State applies a countervailing charge on export.

The Commission shall adopt European regulations or decisions fixing the amount of these charges at the level required to redress the balance; it may also authorise other measures, the conditions and details of which it shall determine.

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The corresponding Article III-232 of the Treaty establishing a Constitution for Europe divided the last sentence into two (instead of using a semicolon), but otherwise adopted the draft text wholesale (OJ 16.12.2004 C 310/102).

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Countervailing duties (counterbalancing or offsetting) are perhaps more generally known in international trade, but ‘duties’ and ‘charges’ are used interchangeably, and no customs duties were supposed to exist within the then common market (wholly replaced by the term ‘internal market’ by the Lisbon Treaty). And the common agricultural policy (CAP) aims at instituting a common market for agricultural goods, too.

The provision concerns only a small part of agricultural products, namely those outside a common market organisation.


Ralf Grahn