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Document 52013DC0191
COMMUNICATION FROM THE COMMISSION TO THE COUNCIL AND THE EUROPEAN PARLIAMENT on Modernisation of Trade Defence Instruments Adapting trade defence instruments to the current needs of the European economy
COMMUNICATION FROM THE COMMISSION TO THE COUNCIL AND THE EUROPEAN PARLIAMENT on Modernisation of Trade Defence Instruments Adapting trade defence instruments to the current needs of the European economy
COMMUNICATION FROM THE COMMISSION TO THE COUNCIL AND THE EUROPEAN PARLIAMENT on Modernisation of Trade Defence Instruments Adapting trade defence instruments to the current needs of the European economy
/* COM/2013/0191 final */
COMMUNICATION FROM THE COMMISSION TO THE COUNCIL AND THE EUROPEAN PARLIAMENT on Modernisation of Trade Defence Instruments Adapting trade defence instruments to the current needs of the European economy /* COM/2013/0191 final */
COMMUNICATION FROM THE COMMISSION TO
THE COUNCIL AND THE EUROPEAN PARLIAMENT on
Modernisation of Trade Defence Instruments
Adapting trade defence instruments to the current needs of the European economy 1. INTRODUCTION 1.1. The need for modernisation The European Union is a world leading
trading power and greatly benefits from free trade and open markets globally.
In some instances, however, unfair practices by certain trading partners and
third country exporters can be prejudicial to industries based in the EU. Trade
defence instruments (TDI) are
for that reason an important tool in the broader EU trade policy. They are
often the only means that companies can invoke to react to unfair international
trading practices. At the same time, the application of trade defence
instruments can have an impact on users and consumers. The EU applies very high
standards in the administration of these instruments that have been enacted in
1995, often higher than those required by the World Trade Organisation (WTO)
and as applied by many other users. However, the
economic environment changes continuously and there is a need to periodically
consider whether these changes require some adjustment to the TDI. The rules of the EU's TDI have remained largely
unchanged for more than 15 years. The last substantive revision of the EU's TDI
took place in 1995 in order to implement the conclusions of the Uruguay round of multilateral trade negotiations. Since then, the only significant
legislative change was that adopted in 2004 when the decision making process in the Council was changed (simple
majority to reject a Commission proposal instead of simple majority in favour).
In 2006/2007, a reform – the "Green Paper" - exercise was
launched and showed that there was a wide divergence of
views on the topic. Subsequently, Commissioner De Gucht
indicated during his hearing before the INTA Committee of the European
Parliament in January 2010, that he considered that the TDIs should be reviewed
after the conclusion of the Doha Trade negotiations that are conducted under
the auspices of the WTO. These talks have stalled. Against this backdrop, the Commission has decided to
revisit the functioning of the EU's TDI with a view to updating them, but also
bearing in mind that the multilateral WTO framework will not change in the
foreseeable future. This Communication sets out the proposals
and changes that the Commission puts forward in order to modernise the instruments in line with the Treaty objective to contribute to
free and fair trade (Article 3 (5) Treaty on European Union). The guiding principle for the package put forward is
that the EU's TDI should be improved in a pragmatic and balanced way for
the benefit of all stakeholders. Producers, importers, and users, be they large
companies or small and medium enterprises, should have user-friendly and
efficient instruments at their disposal that respond to today's challenges when
faced with unfair trading practices or with the prospect of TDI measures. The Commission has identified 6 main areas
requiring changes to the current rules in order to address the changes in the economic environment. The proposals take into account the public consultation on modernisation of trade defence
instruments (open from 3 April to 3 July 2012)[1],
from the Commission's extensive experience in the daily administration of these
instruments, and an independent evaluation study, published in March 2012[2]. 1.2. The legal framework The EU's trade defence system is based on
the rules of the WTO which allow its Members to address unfair trade practices
by exporting countries and restore a level playing field. Anti-dumping, the
most frequently used TDI (the others are the anti-subsidy and safeguard
instruments), addresses imports of a product from a non-EU country, sold at prices
lower than the normal value[3],
if they are injuring the EU industry. The anti-subsidy instrument deals with
subsidised[4]
imports. In such cases, the affected EU industry can lodge a complaint with the Commission,
providing evidence of the unfair practice and of the injury it has caused. If
the complaint contains sufficient evidence, an investigation is opened which lasts for around 15 months in case
of dumping (13 months in case of subsidies) and in which all parties concerned
(Union producers, exporters, importers, users of the product and consumer
organisations) are invited to participate. If the investigation confirms the
allegations in the complaint, an anti-dumping or anti-subsidy duty will be
imposed. Measures remain in force normally for 5 years
but they can be reviewed during this period and renewed where appropriate. The safeguard instrument is the third TDI and is not at
issue in this initiative, not least because the EU has very rarely used it. The so-called "WTO+ elements" of the EU's system,
in particular the lesser duty rule and the Union interest test, ensure
proportionality and balance in the application of the instruments. The aim of
this initiative is to keep these high standards but to adapt and improve them
as necessary. Many stakeholders have expressed the wish that the
Commission shortens AD/AS investigations. The Commission will seek to reduce in
general the time needed for deciding provisional measures in AD/AS cases by two
months. 2. THE PROPOSALS This part of
the Communication describes the
Commission proposals to modernise the EU's TDIs. For each proposal it is specified whether or not a
legislative change is required. In fact, an important number of these proposals
require a change of the Basic Anti-Dumping (AD) and Anti-Subsidy (AS) Regulations[5]. The proposed legislative changes are set out in detail in a draft Regulation which the Commission submits to
the Council and the Parliament for adoption in the ordinary legislative
procedure. The proposals also comprise draft guidelines on four important
elements of the EU's TDI. The draft guidelines will be released together with
this Communication in the form of Commission staff
working documents for public consultation before they are adopted by the
Commission. By adopting these guidelines, the
Commission exercises the discretion it enjoys and needs when applying EU TDI to
concrete products. 2.1. Increased transparency and
predictability Transparency in the implementation
of the TDIs is of great importance and therefore the continued increase in transparency in
TDI proceedings is a priority.
Various elements designed to enhance transparency of the proceedings and to
improve predictability for all parties concerned are being proposed
in order to take account of concerns expressed by stakeholders. 2.1.1. Pre-disclosure of
provisional anti-dumping and anti-subsidy measures Stakeholders have often expressed
the desire to have a possibility to comment in advance on the basis
used for the imposition of provisional anti-dumping and anti-subsidy duties.
They claim that such a possibility would, for instance, help to eliminate
errors, calculation mistakes etc. which, under the current system, are only
removed at the stage of definitive measures. More fundamentally, stakeholders
claim that they do not know if and how their business will be affected by
provisional measures because they are unaware of the level at which duties might be imposed. In order to increase transparency in
anti-dumping and anti-subsidy proceedings, it is proposed to provide interested
parties with a pre-disclosure, limited in scope, two weeks before the
imposition of provisional measures. This would avoid that parties are taken
by surprise by the imposition of provisional measures without causing any
significant danger of stockpiling imports, because already today economic
operators normally know the time frame of the EU's decision-making process and
when the publication of provisional measures takes place. The current time
lines of investigations would not be affected. The limited in scope pre-disclosure would be
comprised of (i) a summary of the proposed measures and (ii) the relevant
calculations of the dumping and injury margins for each cooperating exporter
and the Union industry. In order to respect
the time limits of an
investigation, parties would be granted a relatively short deadline, i.e. three
working days to provide comments limited to the calculations. The full
disclosure of provisional measures, which in turn triggers
the possibility to comment extensively on all aspects of such measures, would
continue to be given, as under the current system, at the time of imposition.[6] Thus calculation errors could be corrected
before the imposition of provisional measures which would increase the accuracy
of the measures but without delaying the adoption process.
This proposal requires a legislative change. 2.1.2. Advance notice of
non-imposition of provisional measures Many stakeholders pointed out that
they would like to be informed earlier if the
Commission does not intend to impose provisional measures. Indeed, parties
often find out that no provisional measures are imposed, only when the 9-month
deadline for imposing such measures has passed. Advance notice would help
improving transparency and predictability of the business environment. In
any event, should parties be informed in advance when it is intended to impose measures (as envisaged under this initiative) then
it would appear reasonable to also inform them when it is intended not to
impose provisional measures. It is therefore
proposed to inform interested parties around two weeks prior to the 9-month
deadline, if it is envisaged or not to impose provisional measures. This proposal requires a legislative
change. 2.1.3. Two weeks advance notice of
imposition of provisional anti-dumping/anti-subsidy measures Importers often complain that goods
already in transit at the time of imposition of provisional measures become subject to those measures, once they are cleared through customs. Since,
as mentioned above, it is proposed to make information about the proposed
imposition of provisional measures available to interested parties (around two weeks
prior to imposition), it is also proposed not to impose measures within a
period of two weeks after pre-disclosure. These two weeks would increase
predictability for all parties and give importers more flexibility to deal with
shipments already in transit while fully respecting the time limits. As pointed
out in section 2.1.1., two weeks would not endanger the effectiveness of any
provisional measures, all the more so because the timing of provisional
measures is generally well known. The right of Member States to request
immediate imposition of provisional measures pursuant to Article 7(5) and Article 12(4) of the basic AD and AS
regulations respectively is not
affected by this proposal. This proposal requires a legislative
change. 2.1.4. Guidelines Companies involved in TD investigations are often unaware of the
very technical aspects of the investigations. However, it is in the interest of
all parties that these aspects are
well known and that the relevant
information is easily accessible. With this in mind, it is proposed to
publish guidelines on four core elements of an investigation,
i.e. the calculation of the injury margin, the choice of the analogue country
in investigations concerning imports from non-market economy countries, the
Union interest test and the duration of measures and expiry reviews. The draft guidelines spring from the
Commission's experience. The Commission
will carry out a public consultation on the draft guidelines before adopting
them. 2.2. How to deal with threats of
retaliation 2.2.1. Ex-officio initiations in
case of threats of retaliation The public consultation
has confirmed that there is a problem of retaliation against some EU
producers who intend to lodge a complaint requesting the initiation of
anti-dumping or anti-subsidy investigations. As a result, EU
producers are often reluctant to lodge a complaint or may withdraw from an
investigation and thus be prevented from exercising their rights under EU and
WTO law. A third of the
respondents reported that they had been subject to retaliatory behaviour in the
past. Retaliation includes any threat against the economic interests that the
EU industry may have in the exporting country. Such threats may take many
forms, e.g. threats against production, selling activities, investments,
creation of administrative hurdles, etc. Threats against customers or suppliers
of the Union industry are also relevant. In the experience of
the Commission, such threats are indeed increasing. Therefore, up-to-date TDIs
need to provide mechanisms in order to at least alleviate the pressure
resulting from threats of retaliation. The way forward is that
the Commission opens, where possible, an ex-officio investigation in case
Union producers are exposed to threats of retaliation and if there is
sufficient prima facie evidence of injurious dumping/subsidisation. The evidence required
at the initiation of an ex-officio case has to be of the same standard as that
for the initiation of an investigation following an application by the EU
industry pursuant to Article 5 and Article 10 of the Basic AD and AS
Regulations respectively. Union producers who
consider lodging an AD or AS complaint will be encouraged to contact the
Commission in confidence where they
are exposed to threats of retaliation.
An outline of the type of information that is normally requested will be
published on the Commission (DG Trade) web-site. In deciding whether or
not to go ahead with an ex-officio investigation, the Commission will decide on
the basis of the merits of the evidence available on injurious
dumping/subsidisation. In addition, the Commission will
also take into account available evidence as to whether any measures would have
disproportionate economic consequences for the Union as whole, should the
investigation confirm the existence of injurious dumping/subsidisation. The Commission suggests clarifying this
point through the applicable legislation. 2.2.2. Obligation to cooperate for
Union producers producing the like product Under current
provisions parties are not obliged to cooperate in TD proceedings. For the
purpose of ex-officio investigations initiated by the Commission, it is
proposed to introduce an obligation to cooperate for Union producers. Such an
obligation is necessary in order to ensure that the Commission services have
access to the data required for the investigation. The obligation to cooperate
comprises the duty to reply to the questionnaire that will be sent to the
parties at the beginning of such investigations and to accept on-the-spot
verification of its questionnaire reply by Commission officials. The details of Union
producers communicating with the Commission will remain confidential and will
not be revealed in the non-confidential file pursuant to Article 6(7) and
Article 11(7) of the Basic AD and AS Regulations respectively. This proposal requires
a legislative change. 2.3. Effectiveness and
enforcement 2.3.1. Ex-officio
anti-circumvention investigations The circumvention of trade defence measures
is a growing problem in international trade. Therefore, improved monitoring of
trade flows by the Commission will ensure earlier detection of such practices.
Whenever the Commission is satisfied that such practices appear to be taking
place, it will open an ex-officio anti-circumvention investigation.
This proposal does not require a
legislative change. 2.3.2. Non-application of the
lesser-duty rule in anti-subsidy cases and where
structural raw material distortions exist The lesser-duty rule is a 'WTO plus'
element in the EU's TDI. WTO rules allow the imposition of anti-dumping and
anti-subsidy measures at the level of the dumping/subsidy margin. The EU goes
beyond this minimum requirement set by the WTO and imposes measures at a lower
level than the dumping/subsidy margin if such lower level is sufficient to
remove the injury of the Union industry. However, the application of the lesser-duty
rule is not appropriate in the following situations. First, subsidisation by
third country governments is an increasing concern and in some respects the
benefit of obtaining a lower duty via the lesser-duty-rule may encourage
governments to continue subsidizing their economic operators. Second, third countries increasingly
interfere in trade of raw materials with a view to keeping raw materials in
their country for the benefit of downstream users. As a consequence, EU
producers do not compete on a level playing field with such third country
downstream producers. It does not seem appropriate that such producers benefit
from the lesser-duty rule under the EU's TDI system if they themselves benefit
from structural raw material distortions. The current law does not contain any
provision that would discourage third country governments and economic
operators from engaging in such practices. Therefore, it is proposed not to
apply the lesser-duty rule: –
on a country-wide basis in cases of
subsidisation, –
on a country-wide basis in cases of structural
raw material distortions, This proposal requires a legislative
change. 2.4. Facilitate Cooperation 2.4.1. Registration and collection
of information relating to Union interest Stakeholders claim that cooperation with
the Commission in TD investigations may be burdensome in certain cases. This is
particularly true for small and medium sized enterprises. The main difficulties
encountered by stakeholders include the significant workload, the burdensome
and costly procedures, and the short deadlines. While the degree of difficulty
varies between stakeholders, they all agree that due to the technical nature
and complexity of TD investigations, many companies, especially SMEs often
refrain from cooperating. In response to these difficulties, the
Commission services have already simplified the type of information requested
from users. In addition, it is proposed in future to grant longer deadlines to
all parties to register as interested parties and to reply to the
questionnaires, i.e. 29 days instead of 15 days to register as interested party
and 51 days instead of 37 days to submit the questionnaire reply. This applies
for the Union interest part of the investigation but not for the investigation
of dumping, subsidisation and injury. This should encourage parties to
cooperate in trade defence investigations, and thus further strengthen the
quality of findings underlying any decision on measures, while fully respecting
the time limits. This proposal does not require a
legislative change. 2.4.2. Simplification of refund
procedures Stakeholders identified the need to
increase transparency also regarding refund procedures. The Commission will publish updated
guidelines on refund applications in the Official Journal and on the
Commission's (DG Trade) web-site. It is also proposed to publish on the web-site:
an aide-memoire including a standard form to be filled in by the applicant and
the cooperating producer, a contact list with all the contact points in the
Member States, a list of pending refund applications, and whether a refund has
been granted or rejected. Provided that the applicant has granted permission,
the non-confidential version of the refund decision will also be published on
DG Trade's web-site. The Union industry concerned will be informed about the
receipt of a refund application. A non-confidential file with all
non-confidential documents of refund investigations will be created. This proposal does not require a
legislative change. 2.4.3. Small and medium enterprises Mainly due to their fragmentation and lack
of resources it is often very difficult for Small and Medium Sized Enterprises
(SMEs) to cooperate in lengthy and complex TDI proceedings. Many stakeholders
representing various interests claim that the SME helpdesk needs to be
upgraded. The SME helpdesk will be upgraded to provide more support and information for SME's concerned by a
TDI proceeding. Furthermore, specific seminars will be
organised for SME's throughout the Union in cooperation with Member States, in
order to raise awareness about TDIs. Additionally, the Commission will examine
ways to facilitate the participation of SME’s in TDI proceedings in
collaboration with DG Enterprise’s SME network, in particular with regard to
the following issues: (a) standard form for statistics to be submitted for
standing purposes and questionnaires so as to allow SMEs to provide the
necessary data in the least burdensome manner; (b) considering setting the
investigation period to coincide with the financial year whenever possible; (c)
diminishing the burden caused by language barriers in a proportionate manner.
The result of this work will be enshrined in Commission guidelines. This
proposal does not require a legislative change. 2.5. Optimising review practice 2.5.1. Reimbursement of duties paid
if the expiry review investigation is terminated without renewal of measures Expiry reviews may be initiated just before
the end of the 5 year period of applicability of TD measures. The measures
remain in force pending the outcome of these reviews which last for 12 to 15
months. The AD/AS duties continue to be collected during this period and are
not reimbursed even if the investigation is terminated and the measures are
repealed. However, in cases where the investigation has shown that there is no
injurious dumping/subsidisation it seems unjustified to retain the duties. It is therefore proposed to reimburse
duties collected during expiry review investigations, if the investigation
does not result in a renewal of the measures. Such reimbursement will only be
granted upon application to national customs authorities and will not include
interest. While creating an additional administrative burden, it is not
reasonable to hold operators liable for additional duties after formal expiry
of the measure if there is no longer evidence to support renewal of the
measure. Stakeholders
representing producing interests argue that, since provisional measures are not
imposed retroactively, the Union industry continues to suffer injury even after
the initiation of the proceeding. Consequently the duties collected during an
expiry review investigation serve as a compensation for the lack of measures
between the initiation and the imposition of provisional measures. However,
both EU and WTO law allow for the retroactive imposition of measures only in
exceptional, well-defined circumstances (a substantial rise in dumped imports,
over a relatively short period of time, which is likely to seriously undermine
the remedial effect of the measures[7]).
This proposal requires a legislative
change. 2.5.2. Expiry reviews combined with
interim reviews TDI measures are imposed initially for a
period of 5 years, after which they may be extended for a further period of 5
years following an expiry review. Further extensions following additional
expiry reviews may follow. Given that the provisions on expiry reviews do not
allow for amending the level of duties, the measures are either maintained
unchanged or repealed. With the passage of time, the market situation may have
changed significantly since the measures were originally imposed (e.g.
different Union industry, more exporters on the market, new imports from other
sources, etc.). Where parties consider that this is indeed the case, they will
be encouraged to request an interim review in parallel to the initiation of the
expiry review. This will allow the adaptation of the level of the measure, as
appropriate, to more accurately reflect the changed market situation. Therefore, it is proposed that the
notice of impending expiry published around nine months prior to the end of the
5 year period of application of measures, pursuant to Article 11(2) and
Article 18(4) of the Basic AD and AS Regulations respectively, will
highlight this possibility. Moreover, a reminder could be published on the
DG TRADE website for the benefit of all stakeholders concerned. This proposal does not require a
legislative change. 2.5.3. Systematic initiation of
interim reviews in case relevant anti-competitive behaviour of Union producers
has been identified While it is true that the purpose and legal
basis of TDI and EU competition laws are different, anti-competitive behaviour
can distort injury findings, e.g. companies participating in a cartel will have
higher sales prices than under normal competitive conditions. This, in turn,
influences the price analysis which is an essential part of the injury
examination pursuant to Article 3(3) and Article 8(3) of the Basic AD and AS
Regulations respectively. The Commission will in future,
systematically open an interim review of the AD/AS measures in force where the
Commission has found that Union producers have engaged in anti-competitive
behaviour. This will only apply where there is an overlap of the product
concerned and the time periods. The interim review will examine if and to what
extent the existing anti-dumping or anti-subsidy measures are affected by any
such anti-competitive behaviour. This proposal does not require a
legislative change. 2.6. Codification The legislative
changes proposed hereunder, which are of a technical nature, are proposed in
order to bring EU legislation in line with current practice or developments and
recent jurisprudence. Most of the changes have also been recommended in the
recent evaluation of the EU's TDI[8]. 2.6.1. Registration of imports
ex-officio Article 14(5)
of the Basic AD Regulation and Article 24(5) of the Basic AS Regulation provide
for the possibility to register imports in the context of an investigation. The
purpose of registration is to facilitate the retroactive application of duties,
if necessary. This provision is routinely applied in limited circumstances (e.g.
new exporter reviews,
anti-circumvention reviews). The current texts of Article 14(5) and 24(5)
provide for registration following a request by the Union industry. While
registration is also possible on the Commission's own initiative this should
also be stated in the legislation in the interest of clarity. This amendment
would not extend the areas where registration can be used today. 2.6.2. Update Article 11(9) of the
Basic AD Regulation and Article 22(4) of the Basic AS Regulation Article 11(9)
provides: "In all review or refund investigations carried out pursuant
to this Article, the Commission shall, provided that circumstances have not
changed, apply the same methodology as in the investigation which led to the
duty, with due account being taken of Article 2, and in particular paragraphs
11 and 12 thereof, and of Article 17." The application of this
provision in practice has created uncertainty, in particular as to what
constitutes a change in circumstances. Furthermore, it has sometimes led to the
continued use of clearly outdated methodologies which are no longer applied in
other more recent cases. Article 22(4) of the Basic AS Regulation contains similar
rules. Therefore, in order to ensure greater coherence across the board, these
two provisions should be deleted. 2.6.3. Ensure that exporting
producers with a zero or de-minimis dumping margin in an original investigation
(as opposed to a review investigation) will not be subject to any review Article 9(3) of
the Basic AD Regulation stipulates, inter alia, that individual
exporting producers with a dumping margin of less than 2% shall not be subject
to an AD duty but 'they shall remain subject to the proceeding and may be
reinvestigated in any subsequent review carried out for the country concerned
pursuant to Article 11.' In a WTO dispute settlement case between USA and Mexico[9], the WTO Appellate Body ruled
that exporters with a dumping margin of less than 2% in an original
investigation must not be subject to any subsequent review investigation, as
this would amount to a violation of Article 5.8 of the WTO AD Agreement. Therefore,
Article 9(3) will be modified in order to reflect this ruling. Instead of
including such companies in reviews, they may become subject to new
investigations pursuant to Article 5 of the Basic AD Regulation. Similarly,
Article 14(5) of the Basic AS Regulation will also be amended. 2.6.4. Provide for the possibility of
exemptions also for related parties if they are not involved in circumvention
practices The purpose of
Article 13(4) of the Basic AD Regulation is to ensure that companies subject to
anti-circumvention investigations are exempted from any anti-circumvention
measures if they can demonstrate that they are not engaging in circumvention
practices. However, this text does not explicitly provide for the exemption of
parties who are not engaged in circumvention practices but are related to
producers subject to the existing measures. Therefore, it is proposed to change
the provisions of Article 13(4) and Article 23(6) of the Basic AD and AS
Regulations respectively, in order to clarify the texts in this regard. 2.6.5. Clarify the definition of
"a major proportion" of the Union industry An AD or AS
investigation may not be initiated unless complainants represent a "major
proportion" of Union producers, i.e. producers must represent at least 25% of the total production of the product
concerned in the EU. The Basic
Regulations provide for maintaining the same threshold also for the injury
analysis. However, following a WTO dispute settlement ruling of 2011[10], for the purposes of demonstrating
injury, a "major proportion" during the investigation does not
automatically mean the 25% threshold used for the initiation of an
investigation.[11]
This aspect must be established on a case-by-case basis. Therefore, the
reference to Article 5(4) as contained in Article 4(1) of the basic AD
Regulation should be deleted. Similarly, the reference to Article 10(8) as
contained in Article 9(1) of the Basic AS Regulation should be deleted, in
order to comply with this ruling. 2.6.6. Sampling provisions should
refer to Union producers and not to complainants, except for the standing test In cases where
a large number of producers, exporters or importers cooperate in an
investigation sampling may be applied. The current practice of DG Trade, which
is also that required under WTO law, is to select a sample from all Union
producers, and not just from complainants (which is what is in fact stated in
the basic regulations[12]).
Therefore, the reference to complainants in the provisions mentioned
in footnote 12 will be replaced by a reference to Union producers in order to
reflect this practice. 2.6.7. Clarify that the
investigation of Union interest covers all Union producers and not only
complainants Although the Basic Regulations specifically refer only
to "complainants", information for the purposes of the Union interest
test is, in practice, accepted not only from complainants but also from other
Union producers.[13] This is in line
with the principle, and long-standing practice, that the probable effects of
imposing measures or not should be examined for all different types of economic
operators in the EU. Therefore, the reference to complainants in the provisions
mentioned in footnote 13 will be replaced by a reference to Union producers in
order to reflect this practice. 3. CONCLUSION An update of legislation and procedures is
appropriate so as to provide stakeholders with modern tools to address the
changes in the environment in which they operate. The proposals laid out in this document aim
at modernising the current TD system. They tackle real problems and offer
practical solutions. The different elements address concerns of stakeholders
representing producing interests on the one hand, and importing and consumer
interests on the other. A number of these proposals, in particular those
relating to transparency, will be beneficial for all stakeholders concerned. There
are also some proposals that are more beneficial to producers while others are
more beneficial to importers and consumers. For example, a more offensive
approach against threats of retaliation, fraudulent or structurally distortive
trade practices will strengthen our system and contribute to keeping production
and employment in the EU. More predictability in relation to provisional
measures and an optimised review practice will help importers and better
satisfy consumers' interests. Taken as a whole, the Commission is convinced
that the package is balanced. We are confident that with this modernisation the
EU's trade defence instruments will remain a benchmark internationally and
provide, inter alia, a source of inspiration for the desirable reform of
WTO-rules on the subject. 4. TIMELINE April 2013: –
Adoption by the Commission of this Communication
and the legislative
proposal. After adoption the legislative proposal will follow the ordinary
legislative procedure in Council and Parliament in the course of 2013/14. –
Launch of public consultation on draft
guidelines. July 2013: –
End of public consultation on draft guidelines. Summer 2013: –
Analysis of responses to public consultation. The changes in practice proposed in this
Communication which are not affected by the legislative changes or the
guidelines will be rolled out over the following months. [1] Results of the public consultation on the
Modernisation of the EU's Trade Defence Instruments: http://ec.europa.eu/yourvoice/ipm/forms/dispatch?userstate=DisplayPublishedResults&form=MTDI [2] Independent evaluation of trade defence instruments: http://trade.ec.europa.eu/doclib/press/index.cfm?id=786 [3] The normal value is usually based on the prices paid
or payable, in the ordinary course of trade, by independent customers in the
exporting country or on the full cost of production plus a reasonable profit. [4] Subsidies are financial contributions by a government
or a government body that confer a benefit to a recipient (Article 1 ASCM). [5] Council Regulation (EC) No 1225/2009 on protection against dumped
imports from countries not members of the European Community ( OJ L 343,
22.12.2009, p. 51.) and Council Regulation (EC) No 597/2009 on protection
against subsidised imports from countries not members of the European Community
(OJ L 188, 18.7.2009, p. 93.) [6] Article
20 (1) of the Basic AD Regulation / Article 30 of the Basic AS Regulation [7] Article 10.4 of the Basic AD Regulation, Article 16.4
of the Basic AS Regulation [8] Independent evaluation of trade defence instruments: http://trade.ec.europa.eu/doclib/press/index.cfm?id=786 [9] Appellate Body Report WT/DS295/AB/R of 29.11.2005, Mexico – Definitive anti-dumping measures on beef and rice –complaint with respect to rice. [10] DS397 of 15 July 2011 in European Communities –
Definitive Anti-Dumping Measures on Certain Iron or Steel Fasteners from China. [11] Investigations based on an industry complaint cannot be
initiated if complainants do not meet the 25%
threshold of initiation (see Article 5(4) of the basic AD Regulation and
Article 10(6) of the Basic AS Regulation: No investigation will be initiated
when "Union producers expressly supporting the complaint account for less
than 25% of total production of the like product produced by the Union industry").
Article 4(1) of the basic AD regulation further stipulates: "For the
purposes of this Regulation, the term 'Union industry' shall be interpreted as
referring to the Union producers as a whole of the like product or to those of
them whose collective output of the product constitutes a major proportion, as
defined in Article 5(4), of the total Union production of those products
(…)" (emphasis added). Article 9(1) of the Basic AS Regulation contains
similar text. However, the Appellate Body in DS397 of 15 July 2011 in European
Communities – Definitive Anti-Dumping Measures on Certain Iron or Steel
Fasteners from China ruled that the reference to a major proportion in Article
4(1) of the basic AD regulation in the context of the investigation, cannot
automatically be equated with the minimum threshold of 25% set in Article 5(4)
of the Basic AD Regulation, which refers to the initiation of a case. Thus, the
Appellate Body rejected the linkage between both articles. The same applies by
implication for Articles 9(1) and 10(6) of the basic AS Regulation. [12] Article 17 of the basic AD Regulation and Article 27 of the basic AS
Regulation allow the possibility to apply sampling in AD/AS
investigations. Both regulations stipulate that sampling is carried out
"[i]n cases where the number of complainants, exporters or
importers, types of product or transactions is large (…)" (emphasis
added). [13] Information for the purposes of the Union
interest test is accepted not only from complainants but also from other Union
producers. However, Article 21(2) of the Basic AD Regulation and Article 31(2)
of the Basic AS Regulation stipulate the following: "In order to provide a
sound basis on which the authorities can take account of all views and
information in the decision as to whether or not the imposition of measures is
in the Community interest, the complainants, importers and their
respective associations, representative users and representative consumer
organisations may (…) make themselves known and provide information to the
Commission. …" (emphasis added). The provisions quoted above do not
reflect the current practice of DG-Trade, as they would leave unaddressed the
situation of producers in the Union that are not part of the complainants.