18.7.2009 Official Journal of the European Union L 188/93 COUNCIL REGULATION (EC) No 597/2009 of 11 June 2009 on protection against subsidised imports from countries not members of the European Community (Codified version) THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty establishing the European Community, and in particular Article 133 thereof, Having regard to the Regulations establishing the common organisation of agricultural markets and the Regulations adopted pursuant to Article 308 of the Treaty applicable to goods manufactured from agricultural products, and in particular the provisions of those Regulations which allow for derogation from the general principle that protective measures at frontiers may be replaced solely by the measures provided for in those Regulations, Having regard to the proposal from the Commission, Whereas: Council Regulation (EC) No 2026/97 of 6 October 1997 on protection against subsidised imports from countries not members of the European Community (') has been substantially amended several times (). In the interests of clarity and rationality the said Regulation should be codified. The conclusion of the Uruguay Round of multilateral trade negotiations led to the establishment of the World Trade Organisation (WTO). Annex 1A to the Agreement establishing the WTO (here- inafter referred to as the WTO Agreement), approved by Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multi- lateral negotiations (1986 to 1994) (%), contains, inter alia, the General Agreement on Tariffs and Trade 1994 (hereinafter referred to as the GATT 1994), an Agreement on Agriculture (hereinafter referred to as the Agreement on Agriculture), an Agreement on implemen- tation of Article VI of the GATT 1994 (hereinafter referred to as the 1994 Anti-Dumping Agreement) and an Agreement on Subsidies and Countervailing Measures (hereinafter referred to as the Subsidies Agreement). () OJ L 288, 21.10.1997, p. 1. (?) See Annex V. () OJ L 336, 23.12.1994, p. 1. S In order to reach greater transparency and effectiveness in the application by the Community of the rules laid down in the 1994 Anti-Dumping Agreement and the Subsidies Agreement respectively, the adoption of two separate Regulations which would lay down in sufficient detail the requirements for the application of each of these commercial defence instruments has been considered as necessary. In order to ensure an adequate and transparent imple- mentation of the rules provided for in those two Agree- ments, it is appropriate to transpose their language into Community legislation to the best extent possible. Furthermore, it seems advisable to explain, in adequate detail, when a subsidy shall be deemed to exist, according to which principles it shall be countervailable (in particular whether the subsidy has been granted specifi- cally), and according to which criteria the amount of the countervailable subsidy is to be calculated. In determining the existence of a subsidy, it is necessary to demonstrate that there has been a financial contribution by a government or any public body within the territory of a country, or that there has been some form of income or price support within the meaning of Article XVI of the GATT 1994, and that a benefit has thereby been conferred on the recipient enter- prise. For the calculation of the benefit to the recipient, in cases where a market benchmark does not exist in the country concerned the benchmark should be determined by adjusting the terms and conditions prevailing in the country concerned on the basis of actual factors available in that country. If this is not practicable because, inter alia, such prices or costs do no exist or are unreliable, then the appropriate benchmark should be determined by resorting to terms and conditions in other markets. It is desirable to lay down clear and detailed guidance as to the factors which may be relevant for the deter- mination of whether the subsidised imports have caused material injury or are threatening to cause injury. In demonstrating that the volume and price levels of the imports concerned are responsible for injury sustained by a Community industry, attention should be given to the effect of other factors and in particular  prevailing market conditions in the Community.