BAKGRUNN (fra europaparlements- og rådsforordningen)

(1) Pursuant to Article 3(5) of the Treaty on European Union (TEU), in its relations with the wider world, the Union is to uphold and promote its values and interests and contribute to the protection of its citizens and is to contribute, among other things, to solidarity and mutual respect among peoples and the strict observance and the development of international law, including respect for the principles of the United Nations Charter (the ‘UN Charter’).

(2) Pursuant to Article 21(1), first subparagraph, TEU, the Union’s action on the international scene is to be guided by principles such as the rule of law, equality and solidarity, and respect for the principles of the UN Charter and international law. Pursuant to Article 21(1), second subparagraph, TEU, the Union is also to promote multilateral solutions to common problems.

(3) Pursuant to Articles 1 and 2 of the UN Charter, one of the purposes of the United Nations is to develop friendly relations among nations in accordance with, among others, the principle of sovereign equality.

(4) Article 21(2) TEU requires the Union to define and pursue common policies and actions, and to work for a high degree of cooperation in all fields of international relations in order to, among other things, safeguard its values, fundamental interests, independence and integrity, consolidate and support the rule of law, and the principles of international law.

(5) The Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, adopted by the General Assembly of the United Nations on 24 October 1970, states that international relations are to be conducted in accordance with the principles of sovereign equality and non-intervention. That Declaration also provides, in relation to the principle concerning the duty not to intervene in matters within the domestic jurisdiction of any State, that no State may use or encourage the use of economic, political or any other type of measures to coerce another State in order to obtain from it the subordination of the exercise of its sovereign rights and to secure from it advantages of any kind, which reflects customary international law and is thus binding in the relations between third countries, on the one part, and the Union and its Member States, on the other. Moreover, rules of customary international law on State responsibility for internationally wrongful acts are reflected in the Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA), adopted in 2001 by the United Nations’ International Law Commission at its fifty-third session, and taken note of by the United Nations General Assembly in Resolution 56/83. Those rules are binding in the relations between third countries, on the one part, and the Union and its Member States, on the other.

(6) The modern interconnected world economy increases the risk of economic coercion, as it provides countries with enhanced means for such coercion, including hybrid means. It is desirable that the Union contribute to the creation, development and clarification of international frameworks for the prevention and elimination of situations of economic coercion.

(7) Whilst always acting within the framework of international law, it is essential that the Union possess an appropriate instrument to deter and counteract economic coercion by third countries in order to safeguard its rights and interests and those of its Member States. This is particularly the case where third countries interfere in the legitimate sovereign choices of the Union or a Member State by applying or threatening to apply measures affecting trade or investment in order to prevent or obtain the cessation, modification or adoption of a particular act by the Union or a Member State, including an expression of a position by an institution, body, office or agency of the Union or a Member State. Such measures affecting trade or investment include not only actions taken on, and having effects within, the territory of the third country concerned, but also actions taken by the third country, including through entities controlled or directed by the third country and that are present in the Union, that cause harm to economic activities in the Union. The term ‘third country’ should be understood to include not only a third State, but also a separate customs territory or other subject of international law because such entities are also capable of economic coercion. The use of that term and the application of this Regulation do not have any implication regarding sovereignty. Moreover, this Regulation should be applied in conformity with the Union’s position in relation to the third country concerned.

(8) This Regulation aims to ensure an effective, efficient and swift Union response to economic coercion. It especially aims to deter the economic coercion of the Union or a Member State and to enable the Union, as a last resort, to counteract economic coercion through Union response measures. This Regulation is without prejudice to existing Union instruments and to international agreements concluded by the Union, as well as to actions taken thereunder that are consistent with international law, in the area of the common commercial policy, and to other Union policies.

(9) Economic coercion by third countries can target foreign policy actions of the Union or a Member State and a determination of the existence of economic coercion, and the responses thereto, can have significant implications for relations with third countries. It is necessary to ensure consistent responses in distinct but related policy areas. This Regulation is without prejudice to a possible Union action pursuant to specific provisions in Chapter 2 of Title V of TEU, to which due consideration should be given when considering any response to economic coercion by a third country.

(10) The economic coercion of a Member State by a third country affects the Union’s internal market and the Union as a whole. Member States, acting on their own, cannot counteract economic coercion by third countries through measures falling within the area of common commercial policy. Given the exclusive competence conferred on the Union by Article 207 of the Treaty on the Functioning of the European Union (TFEU), only the Union is permitted to act. Moreover, it is possible that Member States, as distinct actors under international law, are not entitled to counteract economic coercion of the Union by third countries. Therefore, it is necessary that the means for effectively achieving those objectives are created at Union level. This Regulation is without prejudice to the division of competences between the Union and its Member States.

(11) In accordance with the principle of proportionality, it is necessary and appropriate, for creating an effective and comprehensive framework for Union action against economic coercion, to lay down rules on the examination, determination and counteraction with regard to economic coercion by third countries. The Union response measures should be preceded by an examination of the facts, a determination of the existence of economic coercion, and, wherever possible and provided that the third country also engages in good faith, efforts to find a solution in cooperation with the third country concerned. Any measures imposed by the Union should be proportionate and not exceed the injury to the Union. The criteria for selecting and designing the Union response measures should take into account, in particular, the effectiveness of the Union response measures in inducing the cessation of the economic coercion and, where requested, reparation of the injury to the Union, and the need to avoid or minimise collateral effects, disproportionate administrative complexity and burdens and costs imposed, in particular, on Union economic operators, as well as the Union interest. Therefore, this Regulation does not go beyond what is necessary in order to achieve the objectives pursued, in accordance with Article 5(4) TEU.

(12) Any action undertaken by the Union on the basis of this Regulation should be consistent with international law, including customary international law. Among the international agreements concluded by the Union and the Member States, the Agreement establishing the World Trade Organization (WTO) is the cornerstone of the rules-based multilateral trading system. Therefore, it is important that the Union continue to support that system, with the WTO at its core, and to use its dispute settlement system where appropriate.

(13) Customary international law, as reflected in Article 22 and Articles 49 to 53 of the ARSIWA, allows, under certain conditions such as proportionality and prior notice, the imposition of countermeasures, namely measures that would otherwise be contrary to the international obligations of an injured party vis-à-vis the country responsible for a breach of international law, and that are aimed at obtaining the cessation of the breach or reparation for it. Accordingly, Union response measures could consist, as necessary, not only in measures consistent with the Union’s international obligations, but also in the non-performance of international obligations towards the third country concerned insofar as the economic coercion by the third country constitutes an internationally wrongful act. Under international law, in accordance with the principle of proportionality, countermeasures are to be commensurate with the injury suffered, taking into account the gravity of the internationally wrongful act and the rights in question. In that respect, injury to the Union or a Member State is understood under international law to include injury to Union economic operators.

(14) Where the economic coercion constitutes an internationally wrongful act, the Union should, where appropriate, in addition to the cessation of economic coercion, request the third country concerned to make reparation for any injury to the Union, in accordance with Article 31 and Articles 34 to 39 of the ARSIWA. In the event of the Union obtaining compensation for the injury to Union operators, the Union may, where appropriate and to the extent possible, consider transferring that compensation to the Union operators that have suffered loss as a result of the economic coercion.

(15) Coercion is prohibited and therefore a wrongful act under international law when a country deploys measures such as trade or investment restrictions in order to obtain from another country an action or inaction which that country is not obliged to perform under international law and which falls within its sovereignty, and when the coercion reaches a certain qualitative or quantitative threshold, depending both on the objectives pursued and the means used. The Commission and the Council should take into account qualitative and quantitative criteria that help in determining whether the third country interferes in the legitimate sovereign choices of the Union or a Member State and whether its action constitutes economic coercion which requires a Union response. Among those criteria, there should be elements that characterise, both qualitatively and quantitatively, notably the form, the effects and the aim of the measures which the third country is deploying. Applying those criteria would ensure that only economic coercion with a sufficiently serious impact or, where the economic coercion consists in a threat, that only a credible threat, falls under this Regulation. In addition, the Commission and the Council should examine closely whether the third country pursues a legitimate cause, because its objective is to uphold a concern that is internationally recognised, such as, among other things, the maintenance of international peace and security, the protection of human rights, the protection of the environment, or the fight against climate change.

(16) Acts by third countries are understood under customary international law to include all forms of action or omission, including threats, that are attributable to a State under customary international law. Article 2(a) and Articles 4 to 11 of the ARSIWA confirm that customary international law qualifies as an act of a State, in particular: the conduct of any State organ, of a person or entity which is not an organ of the State but which is empowered by the law of that State to exercise elements of governmental authority; the conduct of an organ placed at the disposal of a State by another State; the conduct of a person or group of persons that are acting on the instructions of, or under the direction or control of, that State in carrying out the conduct; the conduct of a person or group of persons that are exercising elements of the governmental authority in the absence or default of the official authorities and in circumstances such as to call for the exercise of those elements of authority; and the conduct that the State acknowledges and adopts as its own.

(17) The Commission should examine whether a third-country measure constitutes economic coercion. The Commission should carry out such an examination on the basis of information received from any reliable source, including natural and legal persons, the European Parliament, a Member State or trade unions. In order to determine whether a third country applies or threatens to apply measures affecting trade or investment which constitute economic coercion, the assessment of the Commission and the Council should be based on facts.

(18) In order to ensure uniform conditions for the implementation of this Regulation, and in view of the unique nature of economic coercion affecting trade and investment, implementing powers should be conferred on the Council for the determination of the economic coercion and whether it is appropriate to request reparation for the injury to the Union. Conferring implementing powers on the Council is limited to, and addresses, the circumstances arising from the economic coercion and is not to be considered as a precedent.

(19) Following the Commission’s examination, where the Commission concludes that the third-country measure constitutes economic coercion, the Commission should submit a proposal to the Council for an implementing act determining that the third-country measure meets the conditions for the existence of economic coercion. In that proposal, the Commission should include an indicative period for the Commission to assess whether the conditions for the adoption of Union response measures are met. Where appropriate, the Commission should also submit a proposal for a Council implementing act determining that the Union requests the third country to repair the injury to the Union. Furthermore, economic coercion can have an impact on the Union or any Member State and thus create a need to act swiftly under this Regulation and in line with the Union principles of solidarity between Member States and of sincere co-operation. As a consequence, the Council should act expeditiously and make all necessary efforts to adopt a decision within 8 weeks of the submission of the proposal by the Commission. In the exercise of its implementing powers, the Council should act in accordance with the conditions for the existence of economic coercion and criteria for determining whether it is appropriate to request the third country to repair the injury to the Union.

(20) In an effort to secure the cessation of economic coercion and, where requested, reparation of injury to the Union, the Union should seek an early and just settlement of the matter. Accordingly, the Commission should provide adequate opportunity for consultations with the third country concerned and, if that third country is ready to enter into consultations in good faith, engage with it expeditiously. In the course of such consultations, the Commission should endeavour to explore means such as direct negotiations, submitting the matter to international adjudication, or mediation, conciliation or good offices by a third party, without prejudice to the division of competence between the Union and the Member States. In particular, when the third country suspends the economic coercion and agrees to submit the matter to international adjudication, an international agreement with the third country should be concluded, as necessary. Such an international agreement could be concluded either by the Union, in accordance with Article 218 TFEU, or by the Member State concerned.

(21) The Union should support and cooperate with third countries affected by the same or similar economic coercion or other interested third countries. The Union should participate in international coordination in any bilateral, plurilateral or multilateral fora that are suitable for the prevention or elimination of economic coercion. The Commission should express the Union position after having consulted the Council in accordance with the Treaties as applicable and, where appropriate, with the participation of the Member States.

(22) It is desirable that the Union proactively use all available means of engagement with the third country concerned such as negotiations, adjudication or mediation, and that it only impose response measures where such means do not lead to the prompt and effective cessation of the economic coercion and, where appropriate and requested by the Union from the third country concerned, the reparation of the injury to the Union, and where action is necessary to protect the interests and rights of the Union and its Member States under international law and it is in the Union interest to take such action. It is appropriate that this Regulation sets out the applicable rules and procedures for the imposition and application of Union response measures and permits expeditious action where necessary to preserve the effectiveness of those Union response measures.

(23) Union response measures adopted in accordance with this Regulation should be selected and designed on the basis of objective criteria, including: the effectiveness of the measures in inducing the cessation of the economic coercion and, where appropriate, the reparation of the injury it has caused to the Union; the potential to provide relief to Union economic operators affected by the economic coercion; the aim of avoiding or minimising negative economic and other effects on the Union; and the avoidance of disproportionate administrative burden and costs in the application of the Union response measures. The investment environment and knowledge economy of the Union should be safeguarded. It is essential that the selection and design of Union response measures take account of the Union interest, which includes, among other things, the interests of both Union upstream and downstream industries and Union final consumers. When the Commission is considering Union response measures, it should give preference to measures that would not have a disproportionate impact on legal certainty and predictability of the measures for economic operators, and on the administration of relevant national regulations. When the Commission is considering Union response measures affecting authorisations, registrations, licences or other rights for the purposes of commercial activities, it should give preference to measures which affect procedures applied on a Union-wide basis and based on secondary legislation, or, where no such measures are appropriate, measures in areas where extensive Union law exists. Union response measures should not interfere with administrative decisions that are based on the evaluation of scientific evidence. Union response measures should be selected from a wide array of options in order to allow the adoption of the most suitable measures in any given case.

(24) The Union should be able to adopt Union response measures of general application designed in such a way that they affect particular sectors, regions or operators of the third country concerned. The Union should also be able to adopt Union response measures which apply to certain natural or legal persons that are connected or linked to the government of the third country and that engage or may engage in activities covered by Article 207 TFEU. Such targeted Union response measures can induce the prompt cessation of economic coercion, whilst effectively avoiding or minimising the negative effects of such coercion on Member States’ economies, Union economic operators and Union final consumers.

(25) As part of the Union response in order to induce the cessation of economic coercion by third countries, the Commission can also adopt measures pursuant to legal instruments other than this Regulation that confer specific powers to the Commission, for example with regard to the granting of Union funding or possibilities to limit participation in Union framework programmes for research and innovation, in accordance with the procedures set out therein. This Regulation is without prejudice to rules and procedures under such other legal instruments. The Commission should ensure coordination of the adoption of measures set out in Annex I with the measures it adopts pursuant to Union legal acts other than this Regulation. In particular, the Union’s overall response should be proportionate and not exceed the level of injury to the Union. Without prejudice to any reporting obligations towards the European Parliament or the Council provided for under such other legal instruments, the Commission should keep the European Parliament and the Council informed of actions under such instruments synchronised with Union response measures.

(26) It is appropriate to set out rules on the origin of goods or services and on the nationality of service providers, investment and holders of intellectual property rights, for the purposes of determining the Union response measures. The rules of origin and of nationality should be determined in the light of the prevailing rules for non-preferential trade and investment that are applicable under Union law and international agreements concluded by the Union.

(27) For the purposes of obtaining the cessation of the economic coercion in a particular case and, where appropriate, the reparation of the injury caused, Union response measures consisting of restrictions on foreign direct investment or on trade in services should only apply with regard to services supplied, or direct investments made, within the Union by one or more legal persons established in the Union and which are owned or controlled by persons of the third country concerned, where necessary to ensure the effectiveness of Union response measures and, in particular, to prevent their avoidance and circumvention. The decision to impose any such restrictions should be duly justified in implementing acts adopted pursuant to this Regulation in the light of the criteria specified in this Regulation.

(28) After the adoption of Union response measures, the Commission should continually assess the situation of economic coercion, the effectiveness of the Union response measures and their effects on the Union interest, with a view to amending, suspending or terminating the Union response measures accordingly. It is therefore necessary to set out the rules and procedures for amending, suspending and terminating Union response measures and the circumstances in which the amendment, suspension or termination of Union response measures is appropriate.

(29) It is essential to provide for opportunities for the involvement of stakeholders, including businesses, for the purposes of the adoption and amendment of Union response measures and, where relevant, for the purposes of their suspension and termination, in view of the potential impact on such stakeholders.

(30) In light of economic coercion by third countries and, in particular, its frequency and severity, the Commission should, to ensure coherence with any relevant Union legal acts, provide a single point of contact for the functioning of this Regulation and, consequently, should act with a view to ensuring that the Union is able to better anticipate and effectively respond to economic coercion.

(31) It is important to ensure that the European Parliament and the Council are informed regularly and in a timely manner of relevant developments in the application of this Regulation and, where appropriate, have opportunities to exchange views with the Commission.

(32) In order to allow the adjustment of the rules of origin or nationality to take account of relevant developments in international instruments and experience in the application of measures under this Regulation or other Union acts, the power to adopt acts in accordance with Article 290 TFEU should be delegated to the Commission in respect of amending Annex II. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level, and that those consultations be conducted in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making (2). In particular, to ensure equal participation in the preparation of delegated acts, the European Parliament and the Council receive all documents at the same time as Member States’ experts, and their experts systematically have access to meetings of Commission expert groups dealing with the preparation of delegated acts.

(33) In order to ensure uniform conditions for the implementation of Union response measures under 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 (3).

(34) The examination procedure should be used for the adoption of Union response measures and their amendment, suspension or termination, given that those measures determine the Union’s response to economic coercion falling within the scope of this Regulation. Considering the specific nature of this Regulation and the particular sensitivity attached to the Union response measures, the Commission should not adopt a draft implementing act on any Union response measures where the Committee delivers no opinion on that act. In exercising its implementing powers, special attention should be given by the Commission to solutions which command the widest possible support among Member States and, at all stages of the procedure, including in the appeal committee, to finding balanced solutions and avoiding going against any predominant position amongst Member States, in particular as regards the appropriateness of a draft implementing act.

(35) The Commission should adopt immediately applicable implementing acts of limited duration where, in duly justified cases relating to the amendment or suspension of Union response measures, imperative grounds of urgency require expedited action to avoid irreparable damage to the Union or a Member State or to ensure consistency with international law. Such expedited action could prevent the economic coercion from causing or worsening any economic damage, in particular with a view to protecting acute and vital interests of the Union or a Member State.

(36) Any action taken under this Regulation, including the adoption of Union response measures which apply to certain natural or legal persons, is to respect the Charter of Fundamental Rights of the European Union. Moreover, any processing of personal data pursuant to this Regulation is to comply with applicable rules on the protection of personal data. The processing of personal data by Member State officials obtaining information under this Regulation is to be carried out in accordance with Regulation (EU) 2016/679 of the European Parliament and of the Council (4). The processing of personal data by the Union institutions is to be carried out in accordance with Regulation (EU) 2018/1725 of the European Parliament and of the Council (5).

(37) The Commission should evaluate Union response measures adopted under this Regulation as to their effectiveness and operation and, where appropriate, draw conclusions for the purposes of future Union response measures. The Commission should also review this Regulation after gaining sufficient experience with its application and implementation and also its relationship to other Union policies and existing legal instruments, including Council Regulation (EC) No 2271/96 (6). The review of this Regulation should cover its scope, functioning, efficiency and effectiveness. The Commission should report on its assessment to the European Parliament and the Council,