Enlargement: Impact on Trade Defence. Questions and Answers on the Possibilities for Enlargement- Related Interim Reviews of AD and AS Measures

Transcription

1 Enlargement: Impact n Trade Defence Questins and Answers n the Pssibilities fr Enlargement- Related Interim Reviews f AD and AS Measures 1. Existing trade defence measures in the EU-27will autmatically apply in the enlarged EU-28. Will all f these measures be autmatically reviewed by the Cmmissin? N. As in previus EU enlargements, the Cmmissin will nt autmatically review all the existing EU trade defence measures fllwing enlargement. Indeed, it is expected that the measures resulting frm an EU-27 analysis f dumping, injury, etc. wuld in mst cases nt be different than thse based n an EU-28 analysis. In the vast majrity f cases, imprts f the prduct cncerned int Cratia are small cmpared t thse int the EU-27. In additin, the verall utput f Cratia represents less than 0.5% f the utput f the EU-27. All f this suggests that the results reached in EU-27 investigatins nrmally wuld be representative fr the EU-28 as well. In this cntext it shuld be recalled that in EU-27 investigatins nrmally, nt all prducers r exprters can be investigated and therefre the results are based n a representative grup f them. Accrdingly, a priri there are n legal grunds t pen autmatically such reviews fr all measures. In additin autmatic reviews f all measures wuld create a significant burden fr all peratrs invlved given the vlume f infrmatin required by the Cmmissin in such circumstances fr pssibly little r n change f measures. Therefre, the Cmmissin cnsiders it mre apprpriate t leave it t interested parties t ask fr reviews f individual measures. The Cmmissin understands that there may be a number f cases where evidence suggests that measures wuld have been significantly different if they were based n infrmatin including Cratia. The Cmmissin is cmmitted t fully respecting the anti-dumping and anti-subsidy prvisins that

2 measures shall remain in frce nly as lng as, and t the extent that, it is necessary t cunteract the dumping r cuntervailable subsidies which are causing injury. Cnsequently, the Cmmissin encurages all interested parties t cme frward with requests fr reviews n the basis f any evidence as mentined abve, s that the cntinued apprpriateness f any given EU trade defence measure can be assessed in the framewrk f a prper investigatin. 2. What is the legal basis fr requests fr such enlargement-related reviews? Fr measures where enlargement significantly changes the parameters underlying these measures, interested parties may request interim reviews pursuant t Article 11 (3) f the Anti-dumping Regulatin (EC) N 1225/2009 as amended by subsequent Regulatins and Article 19 f the Anti-subsidy Regulatin (EC) N 597/2009. The prvisins f the abve-mentined articles allw fr reviews f measures when circumstances with regard t dumping/subsidisatin r injury have changed significantly. In additin, they underline that the initiatin f such reviews as well as final determinatin have t be based n relevant and duly dcumented evidence. Bth issues - the change f circumstances and necessary evidence - are explained in a greater detail in the subsequent answers. 3. Wh can ldge a request fr an enlargement-related review? Any interested party may ldge a request fr an enlargement-related review. Accrding t the EU antidumping and anti-subsidy basic Regulatins, in the framewrk f an investigatin, the fllwing ecnmic peratrs are cnsidered t be "interested parties": the EU prducers. imprters and their representative assciatins; exprters and their representative assciatins;

3 users and cnsumer rganisatins; authrities f the exprting cuntry. In additin, the Cmmissin has the right t initiate reviews n its wn initiative (fr mre infrmatin n this issue, please, see questin 11 belw). 4. Hw can an interested party ldge a request fr an enlargement-related review? What is the prcedure fr an initiatin? What is the prcedure fr an investigatin? The ldging f a request must be sent in writing t the Office f Cmplaints f the Trade Defence Services. Yu can find all the cntact infrmatin at the bttm f this page. Once the review request is ldged, the Cmmissin examines whether sufficient evidence exists t initiate. The Cmmissin may seek additinal infrmatin r clarificatins cncerning the review request. In such cases, the Cmmissin will cntact the cmplainant requesting the necessary infrmatin. When the review request is sufficiently cmplete, i.e., when it meets the admissibility requirements, the Cmmissin is bliged by law t prpse the initiatin f an investigatin. The internal initiatin prcedure invlves cnsultatins with the Member States. Unlike fr new investigatins, there are n legal time limits fr the initiatin prcedure, but the Cmmissin strives t pen review investigatins swiftly. After a decisin t initiate a review has been made, a Ntice f initiatin f a review prceeding is published in the Official Jurnal. The Ntice prvides basic infrmatin abut the review (prduct descriptin, cuntries cncerned, existing measures, grunds fr the review, etc.), sets up time frame fr the prceeding and invites trade peratrs t infrm the Trade Defence Services abut their intentin t participate in the prceeding as interested parties. As a result all ptential interested parties are encuraged t check the Official Jurnal (e.g., thrugh Eur-Lex r Celex electrnic databases) regularly.

4 As the review investigatin prceeds, the Trade Defence Services cllect and assess infrmatin and evidence btained frm interested parties thrugh questinnaires, letters, hearings and n-spt verificatin visits. The cnclusins f the review investigatins are discussed within the Cmmissin's Directrate-General fr Trade and the Member States are cnsulted in an advisry cmmittee. The Cuncil f Ministers adpts the final decisin n the impsitin f trade defence measures. As a result f an enlargement-related interim review, anti-dumping/antisubsidy duties may be mdified (either increased r decreased), ablished r they may remain unchanged. 5. Hw lng will such an enlargement-related review take? When cnducting review investigatins, the Cmmissin has t fllw certain prcedures t ensure that the legitimate prcedural rights f interested parties are respected. These include the right t be prperly infrmed, right t submit infrmatin, right t be heard, etc. Ntwithstanding these time limits, that are bserved fr the benefit f an bjective and fair investigatin, the Cmmissin shall endeavur t cmplete the enlargement-related review investigatins as swiftly as pssible. The aim wuld be t cmplete such investigatins within eight mnths frm the initiatin f the investigatin. Hwever the time necessary t cmplete such investigatins will largely depend n the particular circumstances f each case including the extent f the review (full/partial), number f parties invlved, cmplexity, etc. 6. What kind f enlargement-related interim reviews are pssible? The impact f enlargement may vary amng different measures. In sme cases the inclusin f infrmatin relating t Cratia may change mst f the parameters underlying the measures, whereas fr thers it may affect nly sme f thse parameters. Accrdingly, interested parties can chse either t request a full review, i.e., a review cvering all substantive aspects f the investigatin r a partial review

5 cvering nly ne r a cmbinatin f such aspects (e.g., dumping, injury, Unin interest, frm f the measures, prduct scpe, etc.) fr which enlargement has led t a structural change. Given the special circumstances f enlargement and the cmplexities which may arise in particular cases, the Cmmissin will adpt a flexible apprach in the examinatin f each individual request accrding t its wn merits. Hwever, the fllwing general rule has t be fllwed in all cases: the structural change referred t in the review request has t have a significant impact n the level r frm f the measures. All kinds f partial reviews are pssible depending n which aspects r cmbinatins f aspects f investigatins are chsen t be reviewed. The mst typical enlargement-related partial interim reviews culd cver the fllwing aspects: Dumping / Subsidisatin: particularly relevant if an exprter has significant exprts t Cratia and pricing structures f these exprts are different t thse used fr the investigatin underlying the measures. Fr antisubsidy investigatins, the subsidy margin is nt impacted by the enlargement as it is calculated independently frm the size f the EU. Hwever, ther changes in the relevant subsidy schemes may have ccurred. Scpe: relevant if prducts exprted t Cratia differ in sme ways t thse exprted t the EU-27, e.g., an extensin f measures t cver ther prduct types culd be requested; The state f the Unin Industry: particularly relevant if there is a significant prductin f the prduct cncerned in Cratia - the inclusin f infrmatin n Cratia may suggest that: a measure n lnger has the supprt f a majr prprtin f the Unin industry ( the s-called "standing" requirement, which is explained in a greater detail in the dwnladable "Guide n

6 Hw t Draft an Anti-Dumping Cmplaint" (pp.5-6)); the level f the measures necessary t remve the injury fr the EU-28 Unin industry (including the industry f Cratia) may be higher r lwer than the level determined in the EU-27 based investigatin. Unin interest: relevant if infrmatin n ecnmic peratrs in Cratia suggests that measures at their current level and/r frm culd lead t an excessively negative effect n interested parties, including shrtage f supplies, significant distrtin f cmpetitin, etc. in the EU as a whle. Where the Cmmissin pens a review limited t sme f the abve parameters, it can expand the review t include ther parameters. It may happen in a situatin where there is evidence that enlargement has substantially changed als ther parameters, nt just thse mentined in the riginal request. Fr example, an interested party culd request a review f the state f the Unin industry. The investigatin might subsequently reveal evidence that dumping margins wuld have als been significantly different, if infrmatin cncerning Cratia was included in the investigatin. In such a situatin, the Cmmissin may decide t review the dumping margins as well. 7. What evidence shuld a request fr an enlargementrelated review cntain? Requests fr either a full r a partial interim review must cntain sufficient evidence, i.e., they have t be dcumented. Mere allegatins made by applicants will nt be cnsidered as sufficient evidence, if they are nt supprted by adequate dcumentary prf. Such dcumentary prf may vary accrding t what is reasnably available t the applicant. Fr a request fr an enlargement-related interim review, it is mandatry that it cntains sufficient evidence that the measures wuld have been significantly different, if they were based n infrmatin including Cratia (EU- 28). It has t shw that, because f enlargement, the

7 measure is n lnger apprpriate t ffset the effects f injurius dumping r cuntervailable subsidisatin. It shuld be nted that enlargement as such, in the absence f evidence cncerning its impact n the parameters underlying the specific measure, is nt a sufficient basis fr a review t be initiated. The perid fr which evidence is presented has t be sufficiently lng t shw a structural change in the relevant parameters. In the case f dumping this perid shuld nrmally cver ne year, whereas in the case f injury it shuld nrmally cver at least three years. The perid shuld be as clse as pssible t the date at which the request is ldged. Hwever, given the exceptinal circumstances f enlargement, the evidence may als cver ther perids, if justified. In case f a request fr a full review, the evidence shuld cver all the substantive aspects f the investigatin. In case f a partial review, nly specific aspects have t be dcumented. As explained in the previus questin, many kinds f partial reviews are pssible depending n which aspects (r cmbinatins theref) f investigatins are chsen fr review. The requests fr the mst typical enlargementrelated partial interim reviews shuld include the fllwing evidence: Dumping: Existence f significant exprts f the prduct cncerned t Cratia as cmpared t exprts t the EU-27 (invices, internatinal sales ledgers, audited accunts); Evidence that pricing structures f these exprts are different t thse used fr the investigatin underlying the measures: exprt sales prices (invices, price lists, cntracts); Nrmal value: dmestic prices (invices) and cst f prductin (audited accunts);

8 Full dumping calculatin: difference between nrmal value and exprt price expressed as a percentage f CIF exprt price (all calculatins and all surces fr the data used must be shwn explicitly, nting the perid t which the data refers); Adjustments: in rder t achieve an apprpriate price cmparisn, the exprt price and the nrmal value shuld be cmparable, fr example as regards the physical characteristics f the prduct and the terms and cnditins f sale. When the exprt price and nrmal value are nt n a cmparable basis, any differences must be adjusted and dcumented. Scpe: Sme prducts exprted t Cratia might share the same characteristics as thse exprted t the EU-27 but might nt be included in the scpe f the prduct under measure (evidence depends n the prduct type: market surveys and/r prduct catalgues shwing the substantial difference in physical characteristics; chemical analysis, if apprpriate; fficial imprt statistics f the prduct/s int the new Member State). The state f the Unin Industry: Standing: A review request regarding the standing requirement has t prvide evidence that the standing test perfrmed n the EU-27 basis might n lnger be valid. In practice that means that there is significant prductin f the prduct cncerned in Cratia and that the "standing" analysis at EU-28 stage wuld nt shw that a majr prprtin f these prducers wuld supprt the measures (the "standing test" is explained in a greater detail in the dwnladable "Guide n Hw

9 t Draft an Anti-Dumping Cmplaint" (pp.5-6). In this respect, evidence f significant prductin f the prduct cncerned in Cratia can be prvided via many surces (fficial statistics, market knwledge, dcumentary evidence n the prductin in Cratia prvided by the prducers r their assciatins in the Cratia). Injury level: Evidence that the level f the measures necessary t remve the injury fr the EU-28 Unin industry (including the industry f Cratia) is higher r lwer than the level determined in the EU-27 based investigatin. This includes an analysis f imprt vlumes and prices, and their subsequent impact n the EU-28 industry (dcumentary infrmatin, e.g., n the change in the csts f prductin, the impact f the dumped imprts n the EU-28 industry, including the impact n its prfits, sales, market share, price evlutin, price undercutting, emplyment, investment, stck variatin as relevant). The data supplied shuld demnstrate a trend ver 3 years, except fr price undercutting, where evidence shuld relate t a recent perid f time. Unin interest: Evidence that, due t enlargement, measures culd lead t an excessively negative effect n interested parties in the EU as a whle (dcumentary evidence n ecnmic peratrs in Cratia, analysis n ptential shrtage f supply, etc.). The necessary evidence may vary depending n the particular request and the particular measure. Therefre, the Cmmissin will examine the merits f each request individually. 8. I am an exprter in a cuntry that is nt a member f the enlarged EU-28. I have never had any exprts t

10 the EU-27, but I have had exprts t Cratia befre it jined the EU. Can I request a "new exprter review" after the enlargement? Yes, after enlargement, the s-called "new exprter review" with respect t anti-dumping measures and "accelerated review" in respect t anti-subsidy measures may be initiated. The EU anti-dumping legislatin des nt aim at preventing imprts frm third cuntries. Individual anti-dumping duty rates reflect individual cases fr different exprters. "New exprter reviews", defined and described in Article 11.4 f the anti-dumping Basic Regulatin, address the prblem f thse exprters that did nt have a chance t be granted individual anti-dumping duty rates because they did nt exprt t the EU during the investigatin perid, n which the measures are based. The same applies t requests frm exprters fr accelerated reviews f anti-subsidy duties, defined and described in Article 20 f the anti-subsidy Basic Regulatin, which are reviews clsely resembling "new exprter review" in antidumping cases. Exprters whse exprts are subject t definitive anti-subsidy duties, but wh were nt individually investigated during the riginal investigatin perid fr reasns ther than a refusal t c-perate with the Cmmissin, are entitled t request an accelerated review. 9. My exprts t the EU are under EU anti-dumping measures, which are s high that I have stpped exprting t the EU. In additin, I have n exprts t Cratia. In this situatin, hw can I shw that I am nt dumping any lnger? Exprters that are subject t the EU anti-dumping measures and are, fr whatever reasn, nt exprting t the EU any lnger r are exprting in very small quantities, have the pssibility t request a review f the measures als n the grunds that they have stpped dumping. Such a request must prve a substantial change in circumstances with respect t dumping by prviding supprting evidence that the cmpany's exprts t markets ther than the EU have nt been dumped ver a reasnable perid f time (usually

11 ne year). Hwever, the cnditins in the relevant third cuntries' markets shuld be cmparable t the EU market and the sales t thse markets shuld be representative f the cmpany's verall sales. If, after the EU impsed measures, an exprter cntinued t exprt t Cratia and these exprts suggest a lwer dumping margin than the ne established in the investigatin underlying the EU measures, there are gd reasns fr such an exprter t ask fr a partial interim review cncerning the determinatin f the dumping margin. This wuld be the mst typical case. 10. What abut definitive measures that have been impsed less than a year ag - are there any pssibilities fr interested parties t request enlargement-related reviews f these measures? Bth articles, mentined abve as the legal basis fr requests fr enlargement-related reviews, underline that measures may nt be reviewed upn request by interested parties unless a reasnable perid f at least ne year has elapsed since the impsitin f the definitive measures. The Cmmissin is cnvinced that, in the exceptinal circumstances f enlargement, reviews shuld be pssible fr all measures where interested parties may prvide evidence that the EU trade defence measures wuld have been significantly different if they were based n infrmatin including Cratia. Accrdingly, fr measures where this neyear standstill clause applies, the Cmmissin may use its rights t initiate reviews n its wn initiative, prvided that the requests fr such reviews, submitted by interested parties, meet all the ther criteria f admissibility. Fr further infrmatin: If yu intend t ldge a request fr an enlargement-related review and have any queries n yur particular case, yu are invited t cntact the Office f Cmplaints: Eurpean Cmmissin Office f Cmplaints, TDI Service (Office: 8/21) Avenue des Nerviens 105

12 B-1049 Brussels, Belgium Phne: Fax: If yu have questins regarding general aspects f the impact f enlargement n the EU trade defence instruments, yu are welcme t address them t the enlargement Help Desk : TDI.Enlargement.Inf@ec.eurpa.eu