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A Non-Dumping Producer Might Be Exempt from the Antidumping Duties in EU Expiry Review

Published online by Cambridge University Press:  20 January 2017

Dong Jiang
Dong Jiang*
Affiliation:
Renmin University of China Law School, University of Minnesota Law School (2011-2012), lucky [email protected]
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Extract

The test of EU antidumping expiry review is the likely continuation or recurrence of the dumping. In this case, the General Court (Second Chamber) of the Court of Justice of the European Union found that the European Council made manifest assessment errors of facts in using the continuation test to extend antidumping duties on the non-dumping applicant. However, due to the high discretion of the Council and the Court in making antidumping decisions, it is not a rigid rule that the non-dumping producers shall be exempt from the duties in the expiry review.

Type
Case Notes
Information
European Journal of Risk Regulation , Volume 3 , Issue 4 , December 2012 , pp. 615 - 620
Copyright
Copyright © Cambridge University Press 2012

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References

1 Judgment of the General Court (Second Chamber) of the Court of Justice of the European Union (CJEU), 8 May 2012. This judgment deals mainly with Art. 11 (2), Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (OJ 1996 L 56, p. 1), as amended by Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (OJ 2009 L 343, p. 51, corrigendum OJ 2010 L 7, p. 22).

2 Regulation (EC) No 229/94 imposing defi nitive anti-dumping duties on imports into the Community of ethanolamine originating in the US, and collecting defi nitively the provisional antidumping duties (OJ 1994 L 28, p. 40).

3 Regulation (EC) No 1603/2000 imposing a defi nitive antidumping duty on imports of ethanolamine originating in the US (OJ 2000 L 185, p. 1).

4 Regulation (EC) No 1583/2006 imposing a defi nitive anti-dumping duty on imports of ethanolamines originating in the US of America (OJ 2006 L 294, p. 2).

5 Notice of the impending expiry of certain antidumping measures (2008/C 71/05), OJ 2008 C 71, p. 13.

6 Notice of initiation of an expiry review of the antidumping measures applicable to imports of ethanolamine originating in the US (2008/C 270/12), OJ 2008 C 270, p. 26.

7 Regulation (EU) No 54/2010 imposing a defi nitive antidumping duty on imports of ethanolamine originating in the US (OJ 2010 L 17, p. 1).

8 Case T-158/10, The Dow Chemical Company v. Council of the European Union, Dumping—Imports of ethanolamine originating in the US—Defi nitive antidumping duty—Expiry of antidumping measures—Review—Likelihood of a continuation or recurrence of dumping—Article 11(2) of Regulation (EC) No 1225/2009, available on the Internet at <http//eur-lex.europa.eu/LexUriServ/Lex-UriServ.do?uri=CELEX:62010TJ0158:EN:HTML> (last accessed on 2 November 2012).

9 Paragraph 21 of the Judgment (quoted by the Court from Case T-188/99 Euroalliages v Commission [2001] ECR II-1757, paragraphs 45 and 46).

10 Paragraphs 19, 20 of the Judgment.

11 Paragraph 39 of the Judgment.

12 Paragraph 45 of the Judgment.

13 Paragraph 45 of the Judgment.

14 Paragraph 46 of the Judgment.

15 Paragraph 47 of the Judgment.

16 Recital 117 of the contested regulation.

17 Recital 26 of the contested regulation.

18 See paragraphs 53-58 of the Judgment.

19 Lucy Davis, Ten Years of Anti-dumping in the EU: Economic and Political Targeting, p. 6, available on the Internet at <http//www.ecipe.org/media/publication_pdfs/ten-years-of-anti-dumping-inthe-eu-economic-and-political-targeting.pdf> (last accessed on 2 November 2012).

20 The number of initiations peaked in the late 1990s and showed recent signs of revival, with the exception of 2007. On 31 December 2008, there were a total of 128 antidumping measures in force and 25 ongoing investigations. Lucy Davis, Ten Years of Anti-dumping in the EU: Economic and Political Targeting, supra note 19. On 31 December 2009, there were 135 antidumping measures in force. At the end of December, 53 investigations were on-going, ANTIDUMPING, ANTI-SUBSIDY and SAFEGUARD STATISTICS COVERING THE FULL YEAR 2009 (DECEMBER 2009), available on the Internet at <http//trade.ec.europa.eu/doclib/docs/2009/january/tradoc_142110.pdf> (last accessed on 2 November 2012). In the first fi ve months of 2012, there were 24 investigations initiated. ANTI-DUMPING, ANTI-SUBSIDY and SAFEGUARD STATISTICS COVERING THE FIRST 5 MONTHS OF 2012 (MAY 2009), available on the Internet at <http//trade.ec.europa.eu/doclib/docs/2011/january/tradoc_147247.pdf> (last accessed on 2 November 2012).

21 Laura Rovegno and Hylke Vandenbussche, A Comparative Analysis of EU Antidumping Rules and Application, Discussion Paper 2011-23, available on the Internet at <http//sites.uclouvain.be/econ/DP/IRES/2011023.pdf>(last accessed on 2 November 2012), at p. 12. Similar data is refl ected by another research. According to Lucy Davis’s survey, from 1998 to 2008, 133 expiry reviews have been conducted, while 115 measures have been automatically terminated without request for review. The more interesting fi gure here though is that once an expiry review has been requested by the industry concerned, 89 out of 133 times the investigation found in their favor and validated the continuation of measures (equal to a continuation rate of 36%). In other words, a complainant industry is twice as likely to be granted continued protection than not, signaling a preference amongst antidumping decision makers to continue duties on imports once they are in place. Lucy Davis, Anti-dumping Investigation in the EU: How Does It Work?, supra note 19, at p. 13.

22 Case T-188/99 Euroalliages v Commission [2001] ECR II-1757, paragraphs 21, 41, 42 and 57, and Case T-132/01 Euroalliages and Others v Commission [2003] ECR II-2359, paragraph 37.

23 In case T-191/82 EEC Seed Crushers’ and Oil Professors’ Federation (FEDIOL) v. Commission, the court held that the applicant may not be refused the right to put before the court any matters which would facilitate a review as to whether the commission has (1) committed manifest errors in its assessment of the facts, (2) committed to take into consideration any essential matters of such a nature as to give rise to a belief in the existence of subsidization or (3) based the reasons for its decision on considerations amounting to a misuse of powers. [1983] ECR-2913, paragraph 30.

24 Lucy Davis, Anti-dumping Investigation in the EU: How Does It Work?, supra note 19, at p. 15.

25 Trevor C. Hartley, The Foundations of European Community Law, 4th ed. (Oxford: Oxford University Press, 1998), at p. 75.

26 Philip A. Akakwam, “The Standard of Review in the 1994 Antidumping Code: Circumscribing the Role of GATT Panels in Reviewing National Antidumping Determinations”, Minn. J. Global Trade (1996), at p. 289.

27 Paragraph 21 of the Judgment (quoted from Case C-351/04 Ikea Wholesale [2007] ECR I-7723, paragraph 40, and Case C-373/08 Hoesch Metals and Alloys [2010] ECR I-951, paragraph 61).

28 C T-191/82 EEC Seed Crushers’ and Oil Professors’ Federation (FEDIOL) v. Commission, [1983] ECR-2913, paragraph 30.

29 Philip A. Akakwam, The Standard of Review in the 1994 Antidumping Code, supra note 26.

30 Paragraph 46 of the Judgment.