Abstract
The article describes in detail the far-reaching changes to the EU’s trade defence instruments (the Basic Anti-Dumping Regulation and the Basic Anti-Subsidy Regulation). For the first time since the WTO Uruguay Round, these laws have been subject to a major overhaul. This major overhaul has been achieved in two steps. In December 2017, a new methodology for the calculation of normal values in case of state-induced distortions in the exporting country was introduced. In a second step, in May 2018, a large number of other changes to the two Basic Regulations will enter into force. The most important of these changes cover a revision of the rules on the calculation of the injury margin and a pre-notification of interested parties 3 weeks prior to the imposition of provisional measures. Moreover, the new rules accept trade unions as interested parties and they recognise—in well-defined circumstances—the importance of multilateral labour and environmental agreements.
In memoriam Neil MacDonald
This article is dedicated to the memory of my former colleague Neil MacDonald who passed away in March 2018. He was a friend and a mentor. His knowledge, his sense of humour and his energy have inspired generations of officials in the EU’s trade defence services.
Any views expressed in this article are personal and cannot be attributed to the European Commission.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
Basic Anti-Dumping Regulation, OJ 2016 L 176/21; Basic Anti-Subsidy Regulation, OJ 2016 L 176/55. There is a third trade defence instrument, i.e. the safeguard instrument that is not, however, affected by any of the legislative changes discussed in this contribution.
- 2.
European Commission, 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) 191 final, 10 April 2013, http://trade.ec.europa.eu/doclib/docs/2013/april/tradoc_150837.pdf (last accessed 30 April 2018).
- 3.
European Parliament, Protection against dumped and subsidised imports from countries not members of the EU, Resolution of 16 April 2014, P7_TA(2014)0420. The modernisation file itself as well as its discussion in the European Parliament is described in detail in: Hoffmeister (2015), pp. 365–376.
- 4.
See Council, Trade defence instruments: Council agrees negotiating position, 13 December 2017, http://www.consilium.europa.eu/en/press/press-releases/2016/12/13-trade-defence-instruments-general-approach/ (last accessed 30 April 2018). The text of the provisional agreement resulting from the inter-institutional negotiations was released by the European Parliament on the occasion of the endorsement of the agreement by INTA on 28 January 2018: see http://www.emeeting.europarl.europa.eu/committees/agenda/201801/INTA/INTA(2018)0122_1P/sitt-7666743 (last accessed 30 April 2018). The compromise has now been signed into entered into the force of law, see Regulation (EU) 2018/825, OJ 2018 L 143/1.
- 5.
The Commission’s press release can be found here: European Commission, Commission welcomes landmark deal modernising the EU’s trade defence, 5 December 2017, http://europa.eu/rapid/press-release_IP-17-5136_en.htm (last accessed 30 April 2018).
- 6.
Article 9.1 in fine of the Agreement on Implementation of Article VI of GATT 1994 (WTO Anti-Dumping Agreement) provides: “It is desirable (…) that the duty be less than the margin [of dumping] if such lesser duty would be adequate to remove the injury to the domestic industry.” Articles 7.5 and 8.1 contain similar provisions in relation to price undertakings and provisional measures. The corresponding provisions in the Agreement on Subsidies and Countervailing Measures (ASCM or WTO Anti-Subsidy Agreement) can be found in its Articles 17.5, 18.1(b) and 19.2.
- 7.
GC, Case T-210/95, EFMA v Council, ECLI:EU:T:2005:455, para. 60. This aspect was not appealed.
- 8.
See the new paragraph 2c to Article 7 of the Basic Anti-Dumping Regulation and the new paragraph 1a of the Basic Anti-Subsidy Regulation.
- 9.
See the new paragraph 2d to Article 7 of the Basic Anti-Dumping Regulation and the new paragraph 1b of the Basic Anti-Subsidy Regulation.
- 10.
See the new paragraphs 2a and 2b to Article 7 of the Basic Anti-Dumping Regulation.
- 11.
See the new paragraph 1 of Article 7 in conjunction with paragraph 4 of Article 9 and a new Article 19a of the Basic Anti-Dumping Regulation. The corresponding provisions in the Basic Anti-Subsidy Regulation can be found in paragraph 1 of Article 12 in conjunction with paragraph 1 of Article 15 and 29a of the Basic Anti-Subsidy Regulation.
- 12.
See the new paragraph 7 of Article 6 of the Basic Anti-Dumping Regulation and the new paragraphs 1 to 4 of Article 13 of the Basic Anti-Subsidy Regulation.
- 13.
See Recital 18.
- 14.
See the new subparagraph added to paragraph 1 of Article 5 of the Basic Anti-Dumping Regulation and the new subparagraph added to paragraph 1 of Article 9 of the Basic Anti-Subsidy Regulation.
- 15.
See Article 5(3) of the Basic Anti-Dumping Regulation and Article 10(3) of the Basic Anti-Subsidy Regulation.
- 16.
See the new paragraph 7 of Article 6 of the Basic Anti-Dumping Regulation and new paragraph 7 of Article 11 of the Basic Anti-Subsidy Regulation.
- 17.
The Basic Anti-Subsidy Regulation contains the corresponding provisions in its new paragraph 3 to Article 24 and the new Article 24a.
- 18.
See the new paragraphs 1a and 9 of Article 6 of the Basic Anti-Dumping Regulation and the new paragraphs 1a and 9 of Article 10 of the Basic Anti-Subsidy Regulation.
- 19.
See the new paragraph 1 of Article 7 of the Basic Anti-Dumping Regulation.
- 20.
See the revised paragraph 9 of Article 6 of the Basic Anti-Dumping Regulation.
- 21.
See the new paragraph 5 of Article 11 of the Basic Anti-Dumping Regulation and the new subparagraph in Article 18(1) of the Basic Anti-Subsidy Regulation.
- 22.
See Recital 7 as well as the new paragraph 10 of Article 6 of the Basic Anti-Dumping Regulation and the new paragraph 11 of Article 11 of the Basic Anti-Subsidy Regulation.
- 23.
See the new paragraph 8 of Article 14 of the Basic Anti-Dumping Regulation and the new paragraph 8 of Article 24 of the Basic Anti-Subsidy Regulation.
- 24.
Appellate Body Report, Mexico – Definitive anti-dumping measures on beef and rice (complaint with respect to rice), WT/DS295/AB/R, adopted 29 November 2005, DSR 2005:VI, paras. 207–211.
- 25.
See the new paragraph 3 of Article 9 of the Basic Anti-Dumping Regulation as well as the new paragraph 3 of Article 15 of the Basic Anti-Subsidy Regulation.
- 26.
GC, Case T-156/11, Since Hardware (Guangzhou) v Council, ECLI:EU:T:2012:431.
- 27.
See the new paragraph 1 of Article 12 of the as well as the new paragraph 1 of Article 13 and the new subparagraph 3 in paragraph 1 of Article 15 of the Basic Anti-Subsidy Regulation.
- 28.
OJ 2017 L 338/3.
- 29.
European Commission, Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EU) 2016/1036 on protection against dumped imports from countries not members of the European Union and Regulation (EU) 2016/1037 on protection against subsidised imports from countries not members of the European Union, COM(2016) 721 final, http://www.europarl.europa.eu/RegData/docs_autres_institutions/commission_europeenne/com/2016/0721/COM_COM(2016)0721_EN.pdf (last accessed 30 April 2018). See also European Commission, Commission proposes changes to the EU’s anti-dumping and anti-subsidy legislation, 9 November 2016, http://trade.ec.europa.eu/doclib/press/index.cfm?id=1573&title=Commission-proposes-changes-to-the-EUs-anti-dumping-and-anti-subsidy-legislation (last accessed 30 April 2018). See also Müller (2017), pp. 205–225.
- 30.
See 1st sentence of Article 2(6a)(a).
- 31.
See Article 2(6a)(b).
- 32.
See first sentence of Article 2(6a)(c).
- 33.
See second and third sentence of Article 2(6a)(c).
- 34.
See Article 2(6a)(d).
- 35.
The report can be found here: European Commission, Commission Staff Working Document on significant distortions in the economy of the People’s Republic of China for the purposes of trade defence investigations, SWD(2017) 483 final/2, http://trade.ec.europa.eu/doclib/docs/2017/december/tradoc_156474.pdf (last accessed 30 April 2018).
- 36.
See fact sheet released by the Commission on 20 December 2017: European Commission, The EU’s new trade defence rules and first country report, 20 December 2017, http://europa.eu/rapid/press-release_MEMO-17-5377_en.htm (last accessed 30 April 2018).
- 37.
See European Commission, EU puts in place new trade defence rules, 20 December 2017, http://europa.eu/rapid/press-release_IP-17-5346_en.htm (last accessed 30 April 2018).
- 38.
See Article 2(6a)(e).
- 39.
See Recital 2 of Regulation (EU) 2017/2321.
- 40.
OJ 2015 L 123, p. 33.
References
Hoffmeister F (2015) Modernising the EU’s trade defence instruments: mission impossible? In: Herrmann C, Simma B, Streinz R (eds) Trade policy between law, diplomacy and scholarship – liber amicorum in memoriam Horst G. Krenzler. Springer, New York, pp 365–376
Müller W (2017) The EU’s trade defence instruments: recent judicial and policy developments. In: Bungenberg M et al (eds) European yearbook of international economic law. Springer, Cham, pp 205–225
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2018 Springer International Publishing AG, part of Springer Nature
About this chapter
Cite this chapter
Müller, W. (2018). The EU’s New Trade Defence Laws: A Two Steps Approach. In: Bungenberg, M., Hahn, M., Herrmann, C., Müller-Ibold, T. (eds) The Future of Trade Defence Instruments. European Yearbook of International Economic Law(). Springer, Cham. https://doi.org/10.1007/978-3-319-95306-9_3
Download citation
DOI: https://doi.org/10.1007/978-3-319-95306-9_3
Published:
Publisher Name: Springer, Cham
Print ISBN: 978-3-319-95305-2
Online ISBN: 978-3-319-95306-9
eBook Packages: Law and CriminologyLaw and Criminology (R0)