July 24, 2014

Revisions to The European Union’s Trade Defence Instruments

The European Commission has published legislative proposals that would make EU anti-dumping and anti-subsidy instruments more efficient and better adapted to shield EU producers from unfair practices.  Specifically, the changes would also protect producers from any risk of retaliation by exporters or exporting countries.

On 10 April 2013, the European Commission released draft proposals for amendments to the Basic Anti-Dumping and Anti-Subsidy Regulations (Regulation (EC) No 1225/2009 and Regulation (EC) 597/2009 respectively).  The legislative proposals must be approved by the Council and the European Parliament, and could then become law in 2014.   

The proposals aim to make the anti-dumping and anti-subsidy instruments more efficient and better adapted to shield EU producers from unfair practices.  Specifically, the changes would protect producers from any risk of retaliation that might prevent them from exercising their rights. 

The legislative proposals include the following main innovations:

  • Businesses will be informed about any provisional anti-dumping and anti-subsidy measures two weeks before the duties are imposed.  Similarly, if it is decided not to impose provisional measures but to instead continue the investigation, interested parties will be informed of this two weeks in advance.  Interested parties will have the opportunity to comment on the calculation of the dumping and injury margins.  The purpose of this change is to improve predictability.

  • Importers will be able to obtain a reimbursement of duties collected during an expiry review if the Commission concludes, as a result of that review, that there is no need to maintain the relevant trade defence measures.

  • The “special circumstances” under which the Commission may initiate investigations itself (ex officio) will be enlarged to include cases where there is a likely threat of retaliation by the exporters or exporting countries.  This proposal would also impose obligations on EU producers to provide the necessary information in order for the ex officio investigation to proceed.

  • It is proposed not to apply the “lesser duty” rule in cases of circumvention of duties, or in cases where the exporting country uses unfair subsidies or creates structured distortions in its raw material markets.

  • A number of practices resulting from European Court of Justice judgments or World Trade Organisation rulings will be codified. 

In addition, the Commission has outlined certain non-legislative proposals that would

  • Facilitate cooperation with firms and trade associations involved in investigations by extending certain deadlines during the investigation

  • Improve monitoring of trade flows

  • Allow ex-officio anti-circumvention investigations against illegal evasion of measures.

The Directorate General for Trade is also working on Guidelines for four particularly complex areas: expiry reviews, the EU interest test, calculation of the injury margin and the choice of an analogue country in investigations against non-market economy countries.

The draft Guidelines will be open to consultation for three months.  Interested parties are encouraged to submit their views. 

Aiste Slezeviciute, a trainee solicitor in the Brussels office, also contributed to this article.

© 2014 McDermott Will & Emery

About the Author

Philip Bentley, QC, McDermott WIll Emery law Firm, Antitrust Attorney

Philip Bentley is a partner in the international law firm of McDermott Will & Emery/Stanbrook LLP based in its Brussels office.  He is a member of the Firm’s EU regulatory practice and European Competition and Trade Groups.  His practice focuses on EU anti-dumping, trade defense and customs, EU competition (including State aid and public procurement), EU regulatory matters, notably GMOs, and EU litigation.

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