The EU may adopt trade defence remedies against dumped or subsidised imports from third countries leading to an increase in tariff duties. In addition, the EU may decide to protect its industry against a sudden increase in imports of a particular product by means of safeguard measures in the form of import quotas. Special safeguard mechanisms are also available against textile and clothing products as well as other specific products originating in the Chinese mainland. Traders may also request the EU to tackle certain trade barriers on third markets affecting their commercial interests through the so-called "Trade Barriers Regulation".
2.10.1 Anti-dumping and Anti-subsidy Measures
In order to combat unfair trade practices which cause or threaten to cause material injury to the EU industry, following certain procedures the EU may increase the import duties on imports of specific products from certain countries for which dumping or subsidisation is found.
a) Anti-dumping
Council Regulation 384/96, as amended, provides the main legal basis for the EU's anti-dumping measures. According to this Regulation, anti dumping duties are to be imposed if three conditions are met: (i) a finding of dumping;1 (ii) a determination of material injury (or threat thereof) to EU industry;2 and (iii) the adoption of measures is in the interest of the EU as a whole.3
The European Commission is responsible for investigating complaints and assessing whether they are justified. It can also impose provisional measures. However, definitive measures can only be imposed by the Council.
i. Initiation of the Investigation
Proceedings for an investigation can be initiated by written request from the EU industry or from an EU Member State. Any natural or legal person, or any association not having legal personality, acting on behalf of the EU industry (i.e. representing at least 25% of EU total production of the product concerned), may submit a written complaint to the European Commission (or to any EU Member State). If the complaint contains sufficient "prima facie" evidence of dumping and material injury, the European Commission will initiate an anti-dumping proceeding. Once it has received the complaint, the European Commission has 45 days to decide whether to initiate an investigation or reject the complaint.
ii. Main Steps of the Investigation
The investigation is carried out by the European Commission (Directorate-General for Trade). In cases involving the Chinese mainland, the European Commission will identify an analogue country with similar conditions which will be taken into account in order to determine the normal value of the products concerned. Regardless of this, exporters have the opportunity to claim market economy status (MES) if they can demonstrate that they operate under market economy conditions and are free from significant State interference. If a claim for market economy status is accepted, the normal value will be calculated on the basis of the cost information provided by the exporter. If the claim for market economy status is rejected, the exporters may still claim that they are free from State interference with respect to export prices, and request individual treatment (IT) in the calculation of anti-dumping duties.
From the date of publication of the notice of initiation in the Official Journal, Chinese exporters have 10 days to comment on the analogue country selected; 15-21 days to send in the market economy status claim (where individual treatment may also be requested); 37 days to submit the questionnaire response containing detailed information about the company's export activities in the EU; and 37 days to submit their views on injury to the EU industry. These time-limits may be extended.
In cases where an investigation involves a significant number of exporters, the European Commission may resort to sampling (i.e. the selection of representative companies on which to base the calculations of dumping). Exporters wishing to participate in the sample must submit information on their domestic and export sales as well as their production volume within 10-15 days after initiation.
A final determination on a claim for market economy status should be issued no later than three months after initiation. However, in practice, this time limit is seldom respected. Such claim may also be subject to an on-the-spot verification by the European Commission. Three or four months after initiation, Commission officials may carry out further verification visits at the exporters' premises in the Chinese mainland, in order to ensure that any of the information submitted is accurate.
Selected Time Limits of EU's Anti-dumping Proceedings against Mainland-origin Products
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From the date of publication of the notice of initiation in the Official Journal
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Actions
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Within 10 days
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Exporters to comment on the analogue country selected by the Commission, whose information (e.g. market and cost data) will be used for calculation of dumping margin of the concerned products.
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Within 15 days
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Exporters to indicate their interest to be selected for sampling to the Commission and provide the information requested in the Notice of Initiation.
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Not later than 15 days
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Interested parties not named in the anti-dumping complaint to make themselves known to the Commission and request questionnaires from the Commission.
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|
Within 15-21 days
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Exporters to send the 'market economy status' claim, and request for 'individual treatment'.
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Within 37 days from the date of notification of being included in the sample
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Sampled exporters to submit duly completed questionnaire about their companies' export activities in the EU to the Commission.
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Not later than 9 months
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The Commission may impose provisional anti-dumping duties.
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Within 15 months
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The Commission must conclude the investigation. The Commission may terminate the proceeding without the imposition of anti-dumping duties; or impose definitive anti-dumping duties (through a Council Regulation); or conclude the investigation by accepting ‘price undertakings' from exporters agreeing to revise their prices.
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Note: The time limits are for reference only. Different anti-dumping investigations may have different time limits, which are specified in the relevant Notice of Initiation published in the Official Journal of the EU.
Source: Council Regulation 384/96 (OJ 1996 L56, as amended)
iii. Outcome of the Investigation
Nine months after initiation, the European Commission may impose provisional duties, if the existence of dumping and injury to the EU industry has been preliminarily established, as well as EU interest. The investigation must be concluded within 15 months from initiation. The European Commission may terminate the proceeding without the imposition of anti-dumping duties; or impose definitive anti-dumping duties (through a Council Regulation); or conclude the investigation by accepting undertakings from exporters agreeing to revise their prices. If duties are imposed, they will expire five years after their date of imposition or after the conclusion of the review of the measures concerned. The duties imposed are calculated according to the dumping or injury margin, whichever is lower.
iv. Undertakings
Hong Kong traders would be interested to know that, once it becomes clear that the investigation will lead to the imposition of duties, the companies concerned might want to consider price undertakings in order to avoid the imposition of such duties against their exports. Undertakings are a form of anti-dumping measure where an exporting producer undertakes to increase its export prices of the product concerned to the Community to non-dumped or non-injurious levels. Undertakings are negotiated with the Commission late in the anti-dumping investigation, when the duty rates have been calculated on the basis of the cooperating exporting producers' dumping or injury margins. They can be negotiated with respect to both provisional and definitive duties.
The acceptance by the Commission of an undertaking leads to the non-application of provisional or definitive anti-dumping duties to the imports of the product concerned manufactured by the company benefiting from the undertaking. The Commission enjoys wide discretion in accepting or rejecting undertakings offered by exporting producers. As a general rule, the Commission will not accept undertakings from exporters which did not cooperate or did not sufficiently cooperate in the investigation, or which did not produce or export the product concerned during the period of investigation.
In light of the above, price undertakings would only be an option for companies which cooperated in the anti-dumping investigation and for which the Commission has found dumping. Each company will have to assess whether a price undertaking is a better solution than paying the duties.
v. Appeal
Individual cooperating exporters may challenge the definitive anti-dumping duties before the Court of First Instance (CFI) and subsequently appeal to the European Court of Justice (ECJ) on points of law only. A WTO Member (including, of course, the Chinese mainland) may have recourse to the WTO dispute settlement system to discuss the conformity of the adopted measures with the WTO Anti-dumping Agreement.
EU's Anti-dumping Measures against Mainland-origin Products
(Measures in Force as at 29 February 2008)
Definitive Duties (44 cases)
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Imposition Date
|
Product
|
Rate of Duty *
|
Remarks
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|
1.
|
4.4.1996
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Certain iron or steel tube or pipe fittings
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58.6%
|
- Original duty maintained for another five years starting from 7.6.2003 consequent to an expiry review.
- Consequent to two separate circumvention investigations, AD duty has been extended, with effect from 2.12.2004, to imports of the same products consigned from Indonesia or Sri Lanka, whether declared as originating in Indonesia or Sri Lanka or not.
- Consequent to a circumvention investigation, AD duty has been extended, with effect from 30.4.2006, to imports of the same products consigned from the Philippines, whether declared as originating in the Philippines or not.
|
|
2.
|
19.1.1997
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Certain bicycle parts
|
48.5%
|
-
|
|
3.
|
17.12.1997
|
Silicon metal
|
49%
|
- Original duty maintained for another five years starting from 5.3.2004 consequent to an expiry review.
- Consequent to a circumvention investigation, AD duty has been extended, with effect from 20.1.2007, to imports of the same products consigned from Korea, whether declared as originating in Korea or not.
|
|
4.
|
10.4.1998
|
Tungsten carbide and fused tungsten carbide
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33%
|
- Duty maintained for another five years starting from 1.1.2005 consequent to an expiry review.
- On 3.8.2005, a partial interim review extended the measures to tungsten carbide simply mixed with metallic powder.
|
|
5.
|
26.6.1999
|
Magnesium oxide
|
i. the difference between the minimum import price of EUR 112 per tonne and the net, free-at-
Community-frontier price before duty in all cases where the latter is less than the minimum import price, and established on the basis of an invoice issued by an exporter located in the mainland of China directly to an unrelated party in the Community;
ii. zero, if the net, free-at-Community-frontier price before duty is established on the basis of an invoice issued by an exporter located in the mainland of China directly to an unrelated party in the Community and equal to or higher than the minimum import price of EUR 112 per tonne; and
iii. equal to an ad valorem duty of 27.1% in all other cases not falling under (i) and (ii) above.
|
Duty maintained for another five years starting from 26.5.2005 consequent to an expiry review.
|
|
6.
|
18.8.1999
|
Steel ropes & cables
|
60.4%
|
Consequent to an anti- circumvention investigation, AD duty has been extended, with effect from 31.10.2004, to imports of the same products consigned from Morocco, whether declared as originating in Morocco or not.
|
|
7.
|
19.2.2000
|
Dead burned (sintered) magnesium
|
i. the difference between the minimum import price of EUR 120 per tonne and the net, free-at-
Community-frontier price before duty in all cases where the latter is less than the minimum import price, and established on the basis of an invoice issued by an exporter located in the mainland of China directly to an unrelated party in the Community;
ii. zero, if the net, free-at-Community-frontier price before duty is established on the basis of an invoice issued by an exporter located in the mainland of China directly to an unrelated party in the Community and equal to or higher than the minimum import price of EUR 120 per tonne; and
iii. equal to an ad valorem duty of 63.3% in all other cases not falling under (i) and (ii) above.
|
Original duty maintained for another five years starting from 13.5.2006 consequent to an expiry review.
|
|
8.
|
26.5.2000
|
Glyphosate
|
29.9%
|
- Consequent to an anti- circumvention investigation, AD duty has been extended, with effect from 1.2.2002, to imports of the same products consigned from Malaysia and from Taiwan, whether declared as originating in Malaysia or Taiwan or not.
- Duty (as extended to Malaysia and Taiwan) maintained for another five years starting from 1.10.2004 consequent to an expiry review.
|
|
9.
|
27.5.2000
|
Silicon carbide
|
52.6%
|
Duty maintained for another five years starting from 26.8.2006 consequent to an expiry review
|
|
10.
|
15.7.2000
|
Bicycles
|
48.5%
|
Duty maintained for another five years starting from 15.7.2005 consequent to an expiry review.
|
|
11.
|
6.10.2000
|
Certain ring binder mechanisms
|
- 17 and 23 rings: Amount by which the price falls below EUR 325 per 1,000 pieces
- Others: 78.8% (except for one company: 51.2%)
|
- Original duty maintained for another four years starting from 5.12.2004 consequent to an expiry review.
- Consequent to a circumvention investigation, AD duty has been extended, with effect from 2.7.2004, to imports of the same products consigned from Vietnam, whether declared as originating in Vietnam or not.
- Consequent to a circumvention investigation, AD duty has been extended, with effect from 13.1.2006, to imports of the same products consigned from Laos, whether declared as originating in Laos or not.
- New anti-circumvention investigation is ongoing (with the product concerned being allegedly circumvented via Thailand and allegedly slightly modified)..
|
|
12.
|
20.7.2001
|
Integrated electronic compact fluorescent lamps
|
66.1% (except for eight companies ranging from 0% to 59.5%)
|
- Consequent to a circumvention investigation, AD duty has been extended, with effect from 10.6.2005, to imports of the same products consigned from Vietnam, from Pakistan and from the Philippines whether declared as originating in Vietnam, Pakistan or the Philippines or not.
- On 7.9.2006, a partial interim review excluded lamps working only on direct current voltage from the scope of the measure with retroactive effect.
- Duty maintained for another five years starting from 18.10.2007 consequent to an expiry review.
|
|
13.
|
19.9.2001
|
Gas fuelled, non-refillable and certain refillable pocket flint lighters
|
EUR 0.065 per lighter
|
- Duty extended and maintained for another five years starting from 13.12.2007 consequent to an expiry review. Pursuant to the extension, the duty currently applies to:
-- gas-fuelled, non-refillable pocket flint lighters
-- gas-fuelled, refillable pocket flint lighters, incorporating a plastic tank body
- The duty does not apply to gas-fuelled, refillable pocket flint lighters, incorporating a plastic tank body, with a value per piece equal to or greater than EUR 0.15,.
|
|
14,
|
10.5.2002
|
Coumarin
|
EUR 3,479 per tonne
|
- Consequent to a circumvention investigation, AD duty extended, with effect from 31.12.2004, to imports of the same product consigned from India or Thailand, whether declared as originating in India or Thailand, or not.
- Consequent to a circumvention investigation, AD duty has been extended, with effect from 11.11.2006, to imports of the same products consigned from Indonesia or Malaysia, whether declared as originating in Indonesia or Malaysia or not.
- Expiry review initiated on 8.5.2007.
|
|
15.
|
15.6.2002
|
Powdered activated carbon
|
EUR 323 per tonne
|
Expiry review initiated on 13.6.2007.
|
|
16.
|
26.7.2002
|
Sulphanilic acid
|
33.7%
|
- Original duty amended from 21.0% to 33.7% with effect from 13.2.2004 as a result of a reinvestigation.
- Expiry review initiated on 24.7.2007.
|
|
17,
|
21.9.2003
|
Para-cresol
|
40.7% (except for one company whose duty rate is 10.8%)
|
-
|
|
18.
|
1.11.2003
|
Furfuryl alcohol
|
EUR 250 per tonne (except for four companies ranging from EUR 84 to EUR 160 per tonne)
|
-
|
19.
|
12.3.2004
|
Sodium cyclamate
|
EUR 0.26 per kilo (except for three companies ranging from EUR 0 to EUR 0.11 per kilo)
|
An anti-absorption investigation, to examine whether the anti-dumping measures have had an effect on export prices, resale prices or subsequent selling prices in the EU, was initiated on 27 April 2005 and terminated on 24.12.2005. It concluded that no absorption of the anti-dumping duties had occurred.
|
|
20.
|
20.8.2004
|
Polyethylene terephthalate
|
EUR 184 per tonne (except for nine companies ranging from EUR 0 to EUR 184 per tonne)
|
On 28.12.2005 a new exporter investigation resulted in a duty of 45 EUR/ton for one company.
|
|
21.
|
13.11.2004
|
Okoumé plywood
|
66.7% (except for four companies ranging from 6.5% to 23.5%)
|
-
|
|
22.
|
18.3.2005
|
Synthetic staple fibres of polyesters, not carded, combed or otherwise processed for spinning
|
49.7% (except for six companies ranging from 4.9% to 26.3%)
|
Partial interim review initiated on 30.8.2007 to establish whether the measures, imposed especially on imports of PSF originating in Malaysia and Taiwan, are still in the Community interest.
|
|
23.
|
22.1.1995
|
Furfuraldehyde
|
EUR 352 per tonne
|
Duty maintained for another five years starting from 29.4.2005 consequent to an expiry review.
|
|
24.
|
