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19.4.2012 Official
Journal
of
the
European
Union L
107/5
DECISIONS
DECISION OF THE PRESIDENT OF THE EUROPEAN COMMISSION
of 29 February 2012
on the function and terms of reference of the hearing officer in certain trade proceedings
(2012/199/EU)
THE PRESIDENT OF THE EUROPEAN COMMISSION,
injurious pricing of vessels ( 8 ), Regulation (EC) No
868/2004 of the European Parliament and of the
Council of 21 April 2004 concerning protection
Having regard to the Treaty on European Union,
against subsidisation and unfair pricing practices
causing injury to Community air carriers in the supply
Having regard to the Treaty on the Functioning of the European
of air services from countries not members of the
Union,
European Community ( 9 ), Council Regulation (EC) No
732/2008 of 22 July 2008 applying a scheme of gener
alised tariff preferences for the period from 1 January
Having regard to the Rules of Procedure of the Commission (
2009 to 31 December 2011 and amending Regulations

1 ),
and in particular Article 22 thereof,
(EC) No 552/97, (EC) No 1933/2006 and Commission
Regulations (EC) No 1100/2006 and (EC) No
964/2007 ( 10 ), Council Regulation (EC) No 1515/2001
Whereas:
of 23 July 2001 on the measures that may be taken
by the Community following a report adopted by the
WTO Dispute Settlement Body concerning anti-
(1) The
right
to
good
administration
constitutes
an
estab
dumping and anti-subsidy matters ( 11 ) and in Council
lished principle of European Union law, which includes
Regulation (EC) No 427/2003 of 3 March 2003 on a
the procedural rights of interested parties involved in
transitional product-specific safeguard mechanism for
administrative proceedings, the result of which may
imports originating in the People’s Republic of China
affect their interests.
and amending Regulation (EC) No 519/94 on common
rules for imports from certain third countries ( 12 ).
(2) This
principle
of
European
Union
law
is
set
out
in
Article 41 of the Charter of Fundamental Rights of the
European Union ( 2 ). The rights set out in Article 41(1)
(3)
Since 1 January 2007, the task to safeguard the effective
and (2) of the Charter of a person whose interests are
exercise of the procedural rights of the interested parties
affected by a trade proceeding are also either explicitly set
and ensure that trade proceedings provided in the regu
out or should, since they are general principles of law, be
lations listed above are handled impartially, fairly and
applied in Council Regulation (EC) No 1225/2009 of
within a reasonable time has been entrusted to an
30 November 2009 on protection against dumped
official of the Directorate-General for Trade experienced
imports from countries not members of the European
in trade defence issues, entitled ‘Hearing Officer’.
Community ( 3 ), Council Regulation (EC) No 597/2009
of 11 June 2009 on protection against subsidised
imports from countries not members of the European
Community ( 4 ), Council Regulation (EC) No 260/2009
(4) In
order
to
strengthen
this
role
and
reinforce
the
trans
of 26 February 2009 on the common rules for
parency and the procedural fairness of the relevant
imports ( 5 ), Council Regulation (EC) No 625/2009 of
proceedings, it is now appropriate to strengthen this
7 July 2009 on common rules for imports from
function of hearing officer inside the Commission and
certain third countries ( 6 ), Council Regulation (EC) No
to lay down his attributions.
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,
(5) This
function
should
be
attributed
to
an
independent
in particular those established under the auspices of the
person experienced in trade proceedings. The hearing
World Trade Organisation (
officer should be appointed by the Commission in

7 ), Council Regulation (EC)
No 385/96 of 29 January 1996 on protection against
accordance with the rules laid down in the Staff Regu
lations of Officials and the Conditions of Employment of
Other Servants of the European Union.
( 1 ) OJ L 55, 5.3.2010, p. 60.
( 2 ) OJ C 83, 30.3.2010, p. 391.
( 3 ) OJ L 343, 22.12.2009, p. 51.
( 8 ) OJ L 56, 6.3.1996, p. 21.
( 4 ) OJ L 188, 18.7.2009, p. 93.
( 9 ) OJ L 162, 30.4.2004, p. 1.
( 5 ) OJ L 84, 31.3.2009, p. 1.
( 10 ) OJ L 211, 6.8.2008, p. 1.
( 6 ) OJ L 185, 17.7.2009, p. 1.
( 11 ) OJ L 201, 26.7.2001, p. 10.
( 7 ) OJ L 349, 31.12.1994, p. 71.
( 12 ) OJ L 65, 8.3.2003, p. 1.

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L 107/6
EN
Official Journal of the European Union
19.4.2012
(6)
In order to ensure the independence of the hearing
2. The task of the hearing officer is to safeguard the effective
officer, he should be attached, for administrative
exercise of the procedural rights of the interested parties
purposes, to the member of the Commission responsible
provided for in the regulations listed below (hereinafter the
for trade policy.
‘basic Regulations’) and ensure that the trade proceedings
under those regulations are handled impartially, fairly and
within a reasonable time. Those basic Regulations are the
(7) The
main
attributions
of
the
hearing
officer
provided
for following:
in this decision are to advise the Commissioner
responsible for trade policy and the Director-General of
Trade DG; to guarantee procedural rights; to allow access
(a) Regulation (EC) No 1225/2009, and notably Articles 5(10
to the file; to take a decision on the confidential nature
and 11), 6(5, 6, 7 and 8), 8(3, 4 and 9), 18, 19, 20 and 21;
of a document; to review the position of the adminis
tration on the extension of deadlines. The hearing officer
should seek to ensure that in the preparation of draft
(b) Regulation (EC) No 597/2009, and notably Articles 10(12
Commission legal acts or proposals, due account is
and 13), 11(5, 6, 7, 8 and 10), 13(3, 4 and 9), 28, 29, 30
taken of all the relevant facts, whether favourable or
and 31;
unfavourable to the parties concerned.
(c) Regulation (EC) No 260/2009, and notably Articles 6
(8) In
order
to
enhance
the
procedural
guarantees
for
the
and 9;
exercise of the procedural rights of interested parties, it
is necessary to determine the types of hearings and to fix
(d) Regulation (EC) No 625/2009, and notably Articles 5
the rules for the organisation, conduct and follow-up on
and 7;
hearings with the hearing officer.
(e) Regulation (EC) No 3286/94, and notably Articles 8 and 9;
(9) The
power
of
the
hearing
officer
to
decide
on
issues
concerning access to the file, confidentiality and
deadlines should provide the parties involved in a trade
(f) Regulation (EC) No 385/96, and notably Articles 5(12 and
proceeding with an additional procedural guarantee
13), 6(5, 6, 7 and 8), 12, 13 and 14;
without prejudice to the time constraints of the
proceeding.
(g) Regulation (EC) No 868/2004, and notably Articles 7
and 8;
(10) The reports should ensure that the main issues dealt with
by the hearing officer and his main recommendations are
brought to the attention of the decision-makers and thus
(h) Regulation (EC) No 732/2008, and notably Articles 18, 19
provide an additional guarantee for the respect of the
and 20;
rights of parties affected by a trade proceeding. The
annual reports should also inform the EU Member
States, the European Parliament and the public about
(i) Regulation (EC) No 1515/2001, and notably Articles 1(2)
the activities of the hearing officer.
and 2(2);

(j) Regulation (EC) No 427/2003, and notably Articles 5(5),
(11) When disclosing information on natural persons,
particular attention should be paid to Regulation (EC)
6(4, 5 and 6), 17(2 and 3) and 18.
No 45/2001 of the European Parliament and of the
Council of 18 December 2000 on the protection of
Article 2
individuals with regard to the processing of personal
data by the Community institutions and bodies and on
Definitions
the free movement of such data ( 1 ).
For the purposes of this Decision the following definitions shall
apply:
(12) This Decision should be without prejudice to the general
rules granting or excluding access to Commission docu
(a) ‘trade proceeding’ means any investigation or an adminis
ments,
trative procedure performed by the Commission services
under any of the basic Regulations;
HAS ADOPTED THIS DECISION:
(b) ‘interested party’ means any person whose interests are
Article 1
affected by a trade proceeding, as defined in the applicable
basic Regulation;
The Hearing officer
1. A
specific
function
of
hearing
officer
in
trade
proceedings (c) ‘rights of the interested parties’ means the procedural rights
is created inside the Commission.
and the right of every person to have its affairs handled
impartially, fairly and within a reasonable time in trade
( 1 ) OJ L 8, 12.1.2001, p. 1.
proceedings.

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EN
19.4.2012 Official
Journal
of
the
European
Union L
107/7
Article 3
6. The
hearing
officer
shall
advise
the
member
of
the
Commission responsible for trade policy and where appropriate
Appointment – Termination of appointment and
the Director-General concerning the follow-up on his recom
Deputising
mendations and, when necessary, on possible remedies.
1. The
hearing
officer
shall
be
appointed
by
the
Commission
in accordance with the rules laid down in the Staff Regulations
of Officials and the Conditions of Employment of Other
7. The
hearing
officer
shall
be
consulted
by
the
Director
Servants of the European Union.
responsible on changes or updates of policy regarding
procedural matters and substantive issues having an impact
on the rights of interested parties as defined in Article 2 of
2. The
appointment
of
the
hearing
officer
shall
be
published this Decision. The hearing officer may be consulted on any
in the Official Journal of the European Union. Any interruption,
other issue arising from a trade proceeding.
termination of appointment or transfer of the hearing officer by
whatever procedure shall be the subject of a reasoned decision
of the Commission. That decision shall be published in the
8. The hearing officer may present to the member of the
Official Journal of the European Union.
Commission responsible for trade policy, and the Director-
General for Trade where necessary, observations and recom
mendations on any matter arising out of a trade proceeding.
3. The
hearing
officer
shall
be
attached,
for
administrative
purposes, to the member of the Commission responsible for
trade policy.
Article 5
Conditions of intervention of the hearing officer –
4. Where the hearing officer is unable to act, the member of
Timing – Information
the Commission responsible for trade policy, where possible
after consultation with the hearing officer, shall designate
1. The
hearing
officer
shall
act
on
request
by
interested
another official, who is not involved in the case concerned
parties, the member of the Commission responsible for trade
and has sufficient experience in trade proceedings, to carry
policy, the Director-General, the Director responsible of a trade
out the hearing officer’s duties.
proceeding or his delegate, or a Director of other services
consulted on a trade proceeding.
Article 4
2. The
hearing
officer
may
intervene
at
any
moment
of
a
Principles of intervention of the hearing officer
trade proceeding with due regard to the time constraints of such
a proceeding.
1. In
performing
his
duties,
the
hearing
officer
shall
act
inde
pendently. The hearing officer shall not take instructions in
fulfilling his tasks.
3. The
hearing
officer
shall
be
bound
by
the
deadlines
applied in trade proceedings in accordance with the basic Regu
2. In
performing
his
duties,
the
hearing
officer
shall
take lations.
account of the need for effective application of the basic Regu
lations in accordance with the Union legislation in force and the
4. Any
final
legal
act
or
proposal
of
the
Commission
shall
be
principles laid down by the Court of Justice of the European
accompanied by a note from the hearing officer stating whether
Union.
he intervened in the proceeding concerned and what was the
nature of his intervention.
3. In the exercise of his function, the hearing officer shall
have access without restriction and undue delay to any files
pertaining to a trade proceeding at any time of the proceeding.
Article 6
Hearings
4. The
hearing
officer
shall
make
decisions
as
provided
for
in 1. The
hearing
officer
may
upon
request
or
in
the
cases
and
this Decision and may make recommendations to the
under the conditions set out in the basic Regulations, organise
Commission services responsible for the investigation on any
and conduct two types of hearings: hearings between an indi
issue concerning the rights of the interested parties who
vidual interested party or a group of interested parties with
requested his intervention. The hearing officer shall seek to
similar interests and the Commission services responsible for
ensure that in the preparation of draft Commission legal acts
the investigation, and hearings among interested parties with
or proposals, due account is taken of all the relevant facts,
different interests.
whether favourable or unfavourable to the parties concerned.
2. A
hearing
can
cover
any
issue
which
arises
at
any
5. The
hearing
officer
shall
be
kept
informed
by
the
Director moment of a trade proceeding and could affect the rights of
responsible or his delegate about the development of the
the interested parties.
procedure in which the hearing officer has intervened until
the adoption of a final legal act by the Commission or the
Council, as applicable. The hearing officer shall be informed
3. Natural
persons
invited
to
attend
a
hearing
shall
either
without delay of any substantial change of the Commission’s
appear in person or be represented by a legal representative.
position at the definitive stage of the trade proceedings in order
Legal persons invited to attend a hearing shall be represented by
to assess any potential impact on the rights of the interested
a duly authorised agent appointed from among their permanent
parties.
staff.

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L 107/8
EN
Official Journal of the European Union
19.4.2012
4. Natural
or
legal
persons
invited
to
attend
a
hearing 2. Where
appropriate,
the
hearing
officer
may
hold
a
organised by the hearing officer may be assisted by a legal
preparatory meeting with the interested parties or with the
adviser or another qualified person outside their permanent
Commission services responsible for the investigation and
staff admitted by the hearing officer.
other services in order to identify and clarify, as far as
possible, any questions of fact or law to be addressed during
the hearing. To this effect, the hearing officer may request from
5. This Article is without prejudice to the right to a hearing
the participants in a hearing any information necessary for the
under the basic Regulations.
preparation of the hearing.
Article 7
3. The
hearing
officer
shall
prepare
the
agenda
of
each
Hearings with an individual interested party or a group of
hearing which shall be made available to all participants prior
interested parties with similar interests
to the hearing.
1. The
hearing
officer
may
organise
and
conduct
a
hearing
between an individual interested party or a group of interested
4. The
hearing
officer
may,
within
a
reasonable
time
after
the
parties with similar interests and the Commission services
deadline for the submission of comments on a disclosure and
responsible for the investigation and where necessary other
before a hearing among parties, invite the participants to submit
services, upon a reasoned request of the interested party or
questions on the information provided by other interested
the group of interested parties with similar interests.
parties.
2. A hearing with a group of interested parties with similar
5. Where
appropriate,
in
view
of
the
need
to
ensure
that
the
interests on a specific issue may be requested by an individual
hearing among parties is properly prepared and particularly that
interested party and shall take place provided that at least
questions of fact are clarified as far as possible, the hearing
another individual interested party with similar interests agrees
officer may, after hearing the Director responsible or his
to participate.
delegate, supply in advance to the parties invited to the
hearing a list of the questions on which he wishes them to
Article 8
make known their views.
Hearings among interested parties with different interests
6. The
hearing
officer
may
also
ask
for
prior
written
notifi
1. A
hearing
among
interested
parties
with
different
interests cation of the essential contents of the intended statement of the
may be organised and chaired by the hearing officer to allow
participants in any hearing.
opposing views to be presented and rebuttal arguments offered.
The period within which such a hearing should be held shall be
specified in the Notice of Initiation of the trade proceeding.
7. The Hearing Officer may invite external experts to the
hearings. Interested parties and the Commission services may
request the hearing officer to admit external experts to hearings.
2. A
hearing
among
interested
parties
with
different
interests The hearing officer shall decide on such requests. The external
may be organised in each trade defence proceeding after hearing
experts invited to a hearing shall be required to sign a confiden
the Commission services responsible for the investigation.
tiality agreement.
3. A
hearing
among
interested
parties
with
different
interests
on a specific issue may also be requested by an individual
8. The
external
experts
may
be
asked
to
provide
any
relevant
interested party and shall take place provided that at least
analysis, reports or publications which shall be included in the
another individual interested party with different interests
file and made available to all participants whenever possible
agrees to participate.
prior to the hearing.
4. The
Commission
services
responsible
for
the
investigation
Article 10
and where necessary other services shall attend the hearing.
Conduct of hearings
1. The
hearing
officer
shall
be
fully
responsible
for
the
5. The
competent
representatives
of
the
Member
States
may conduct of the hearing. The hearing officer shall ensure that
attend any hearing among interested parties with different
the hearing is properly conducted in order to contribute to
interests as observers.
the fairness of the hearing itself and of any decision taken
subsequently.
Article 9
Preparation of hearings
2. Hearings
shall
not
be
public.
The
hearing
officer
shall
decide which persons should be heard on behalf of an interested
1. After
hearing
the
Director
responsible
or
his
delegate,
the party and whether the persons concerned should be heard
hearing officer shall determine the date, the duration and the
separately or in the presence of other persons invited to
place of the hearing. Where a postponement is requested by the
attend. In the latter case, regard shall be had to the legitimate
interested parties or the Commission services, the hearing
interest of the interested parties in the protection of their
officer shall decide whether or not to allow it.
business secrets and other confidential information.

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EN
19.4.2012 Official
Journal
of
the
European
Union L
107/9
3.
The hearing officer may allow the participants to pose and
4. Any
recommendations
made
to
the
Commission
services
answer questions during the hearing.
responsible for the investigation and the reports and obser
vations to the member of the Commission responsible for
trade policy and the Director-General made by the hearing
4. If
the
hearing
officer
has
admitted
external
experts,
he officer shall be considered confidential internal documents.
shall ensure that these experts have the opportunity to
present their views and answer to questions of other
participants in the hearing.
5. If a hearing among parties is organised, the hearing officer
shall prepare a written final report on the respect of the rights
of the interested parties. This report may be modified by the
5. Where
appropriate
after
a
hearing,
in
view
of
the
need
to hearing officer in the light of any amendments to the draft legal
ensure the right to be heard, after hearing the Director
act up to the time of a final legal act.
responsible or his delegate, the hearing officer may afford
interested parties the opportunity of submitting further
written comments. The hearing officer shall fix a date by
Article 12
which such submissions may be made. Written comments
received after that date may not be taken into account.
Access to file
1. A
party
that
claims
to
be
an
interested
party
may
request
the hearing officer to review any refusal of the Commission
Article 11
services responsible for the investigation to provide that party,
within a reasonable time, with access to the file open for
Follow-up on hearings
consultation or to a particular document in the possession of
1. The hearing officer shall produce a transcript or a mean
the Commission. The hearing officer shall examine the case and
ingful summary of the hearings:
shall make a decision on whether to grant partial or full access
or refuse access to the file or the requested document.
(a) where hearings among interested parties with different
interests are organised, a transcript or a meaningful
2. The
hearing
officer
shall
set
the
time
limits
within
which
summary shall be made available to all participants in the
such access shall be provided by the Commission services
hearing and shall be included in the file open for consul
responsible for the investigation.
tation by interested parties;
Article 13
(b) where hearings between an individual interested party or a
Confidentiality
group of interested parties with similar interests and the
Commission services are organised, a transcript or a mean
1. The hearing officer shall be bound by the general rules
ingful summary shall be made available to all participants in
regarding the confidentiality of information submitted by
the hearing. These participants may submit a reasoned
interested parties in administrative proceedings before the
request for confidentiality of certain information contained
Commission.
in the transcript or the summary. The hearing officer shall
decide on these requests after hearing the Commission
services responsible for the investigation and where
2. The
hearing
officer
may
be
requested
by
an
interested
necessary other services. The non-confidential version of
party or the Commission services responsible for the investi
the transcript or summary of the hearing shall be
gation to make a decision on the confidential nature of a
included in the file for consultation by interested parties.
document in the possession of the Commission services
responsible for the investigation.
2. The
hearing
officer
may
convey
recommendations
to
the
Commission services responsible for the investigation in
Article 14
accordance with Article 4(4) of this Decision. The Commission
Non-confidential summaries of confidential information
services responsible for the investigation shall inform the
hearing officer within a reasonable period of time before the
1. An
interested
party
may
request
the
hearing
officer
to
adoption of a final legal act whether and how they have taken
review the assessment of the Commission services responsible
these recommendations into account and shall provide the
for the investigation on whether a non-confidential summary of
hearing officer with a copy of the draft legal act.
confidential information submitted in the course of an investi
gation is in sufficient detail to permit a reasonable under
standing of the substance of the information submitted in
3. The hearing officer shall submit regular reports to the
confidence.
member of the Commission responsible for trade policy with
a copy to the Director-General on hearings with individual
parties or a group of interested parties with similar interests
2. If the Commission services responsible for the investi
as provided for in Article 18 of this Decision, unless the case
gation intend to disregard a document or information for
requires an immediate recommendation to the member of the
which an interested party has refused to provide a meaningful
Commission responsible for trade policy or the Director-
non-confidential summary, the latter may request the hearing
General.
officer to decide on the matter.

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L 107/10
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Official Journal of the European Union
19.4.2012
3. The
hearing
officer
shall
examine
the
request.
If
he
Article 17
considers that the non-confidential summary is not sufficiently
detailed, the hearing officer shall give the interested party that
Participation in the meetings of committees
provided the summary an opportunity to comment and
The hearing officer may attend the committee meetings. Where
improve its summary within a reasonable time.
appropriate, the hearing officer may reply to questions of
Member States as far as these questions concern the nature of
his intervention in the proceedings.
4. If the interested party that submitted the confidential
information provides a deficient summary, provides justifi
cations that cannot be accepted, or does not act, the hearing
Article 18
officer shall decide whether or not to disregard confidential
information for which no meaningful non-confidential
Reports of the hearing officer
summary has been provided in accordance with the relevant
1. At
the
end
of
each
year,
the
hearing
officer
shall
prepare
provisions of the basic Regulations.
an Annual Report. The Annual Report shall contain information
on the cases in which the hearing officer intervened, the type of
decisions and recommendations he made and any recommen
Article 15
dation for improving the trade proceedings. The Report shall be
addressed to the member of the Commission responsible for
Access to information confidential by nature, not
trade policy. The Director-General for Trade and the Direc
susceptible to summary information
torates concerned shall receive a copy of the Report.
At the request of an interested party the hearing officer can
examine information that is confidential by nature and not
susceptible to summary, to which that party has no access, in
2. Summaries
of
the
Annual
Report
shall
be
communicated
order to verify how that information was used by the
to the Member States and the European Parliament and
Commission services responsible for the investigation.
published on the website of the hearing officer.
The hearing officer shall inform the requesting interested party
3. The
hearing
officer
shall
prepare
regular
reports
for
the
of whether, in his view:
member of the Commission responsible for trade policy
summarising his activities and the issues which arose during
these activities. The report shall outline the main policy
(a) the information withheld from the party is relevant to that
issues, the decisions and the recommendations made by the
party’s defence; and
hearing officer and how these recommendations were taken
into account by the Commission services responsible for the
investigation. A copy of this report shall be addressed to the
Director-General for Trade.
(b) where relevant, the investigation services have correctly
reflected the information in the facts and considerations
on which they have based their conclusions.
4. The hearing officer shall report on any hearing among
interested parties with different interests and, in the fulfilment
of his advisory role, may report to the member of the
Article 16
Commission responsible for trade policy and the Director-
Extension of deadlines
General on any other issue arising out of a trade proceeding
or otherwise relevant for the effective application of European
1. A request for extension of time limits or postponement of
Union law principles in trade proceedings.
the dates for replying to questionnaires, to submitting additional
information, for on-the-spot visits, or for comments on
disclosures shall first be addressed by any interested party to
5. The
final
report
of
the
hearing
officer
in
hearings
among
the Commission services responsible for the investigation. Such
parties shall be submitted to the member of the Commission
a request must be made in due time before the expiry of the
responsible for trade policy, the Director-General for Trade and
original time limit. Where such a request is rejected or where
the Director responsible. It shall be communicated to the
the interested party considers that the extension given is too
competent representatives of the Member States and the
short, it may submit, before the expiry of the original time limit,
interested parties.
a reasoned request to the hearing officer to review the matter.
After hearing the Director responsible or his delegate, the
hearing officer may extend the time limits or reject the request.
Article 19
Transitional provisions
2. The
Commission
services
shall
not
act
in
the
matter This Decision shall apply to proceedings which are ongoing at
referred before the hearing officer has decided.
the time of its entry into force but in which no final disclosure
has been made.
3. The
hearing
officer
shall
decide
with
due
regard
to
the
specific circumstances of the request concerned and the time
Procedural steps taken before the entry into force of this
constraints of the proceeding.
Decision shall continue to have effect.

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EN
19.4.2012 Official
Journal
of
the
European
Union L
107/11
Article 20
Entry into force
This Decision shall enter into force on the day following its publication in the Official Journal of the European
Union.
Done at Brussels, 29 February 2012.
For the Commission
The President
José Manuel BARROSO

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Document Outline

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