RESTRICTEDWORLD TRADE
ORGANIZATIONG/ADP/AHG/W/37
19 March 1998
(98-1121)
Committee on Anti-Dumping Practices
Ad Hoc Group on ImplementationOriginal:  English
TOPIC 2* - PERIOD OF DATA COLLECTION
TOPIC 3* - ARTICLE 6.10 "SAMPLING METHOD"
TOPIC 4* - ARTICLE 5.6 "SPECIAL CIRCUMSTANCES"
TOPIC 5* - ARTICLE 5.5 "NOTIFICATION TO THE EXPORTING MEMBER"
TOPIC 6* - ARTICLE 6.2 "HEARINGS"
TOPIC 10* - ARTICLE 9 "DUTY ASSESSMENTS"
Paper by the European Community
The following communication, dated 17 March 1998, has been received from the Permanent
Delegation of the European Community.
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Topic 2 - Period of Data Collection
General - comments on the Secretariat draft Recommendation
1. The European Community broadly agrees with the recommendations on this topic drafted by
the Secretariat for the meeting of 27-28 October 1997.  However, as certain delegations have noted,
existing national legislation which does not follow the “general rules” should not be seen as failing to
conform with the recommendation.  As specified in point 6 of the draft recommendation, transparencyshould be the guiding principle behind selection of investigation periods.  Explanation should
therefore be provided when in a given case there is divergence from the established rules and practice
of the investigating authority in question.
2. Point 4 of the draft recommendation notes the relevance of accounting periods used by firms
investigated to the completeness of data available. It should of course be remembered that only one
period can be chosen for a given proceeding, so that in multi-country cases, for example, a
compromise must be found should the parties’ accounting years differ. Secondly, mention could also
be made of the similar relevance of seasonality of product sales when selecting periods.  In neither
case should the investigating authority be bound by such factors, but where feasible they should be
considered.
European Community Practice
3. Current EC practice follows the guidelines set out in the draft recommendation, with the
dumping investigation period normally being the twelve months immediately prior to initiation of theproceeding, and the overall injury investigation period normally being the three or four years prior to
initiation, ending therefore in line with the end of the dumping investigation period.  The period for
profitability assessment to establish whether sales are in the ordinary course of trade is the same as
that used for the subsequent dumping calculation (the only possible variations occur in the case of
start-up operations).  The period used for assessing undercutting and the actual injury margin alsoG/ADP/AHG/W/37
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necessarily coincides with that used for the dumping  margin calculation.  Variations in the selection
of these investigation periods are possible - to accommodate accounting periods or seasonal sales, for
instance - but if significant should be explained in any eventual Regulation imposing a duty.  The
periods selected are communicated to interested parties in the questionnaires issued at the outset of
each investigation.
Specific circumstances
4. The Secretariat communication (WTO/AIR/750) requested a description of the effect on
investigation period of the following specific circumstances.
(i) Action on discovery of inadequate or inappropriate period  - on initiation of proceedings,
questionnaires are issued requesting data for the selected period.  It is normally not possible to change
the period subsequently, as a request for new data would not allow completion of the investigation
within the time limits governing proceedings.
(ii) Investigation period in cases of calls for tender  - investigations of high value, low frequency sales
may merit an investigation period which differs from that normally used (a longer period may be
needed to cover sufficient sales, for example), but such departures from usual practice should always
be explained in the public notice of any eventual action taken.
(iii) Investigation periods for reviews & refunds  - the same practice is used with reviews as for fresh
investigations (i.e. normally a one year period leadin g up to the initiation of the review).  For expiry
(“sunset”) reviews, on top of the request for actual data over the preceding year the Community
includes a section of the questionnaire dealing with forecast figures for a reasonable period beyond
the date of initiation of the review.  This forecast is required for the assessment of likelihood of
recurrence or continuation of dumping and injury.  For refunds, the Community normally investigates
normal value and export prices for a “representative period” of six months leading up to the first dateof importation in relation to which the application is made.  For recurrent applications (e.g. when an
importer has repeated shipments for which refunds are claimed over a prolonged period), the time
between the first and last importations for which a refund is requested is also covered, in addition to
the six months prior to the first claim date.
(iv) Effects of volatile exchange rates on the investigation period  - there is no effect on the period
itself, but the EC may calculate weighted average normal values and export prices on a monthly basis
throughout the period selected in order to ensure that the impact of volatile exchange rates on any
eventual margin established is minimized.
Topic 3 - Sampling method under Article 6.10
1. In response to the question posed by Canada (G/ADP/AHG/W/30) on the subject of sampling,
the EC refers Members to Articles 17 and 9.6 of its basic anti-dumping legislation
(Regulation (EC) 384/96).
2. Normally, data provided by co-operating compan ies, which were not included in the original
selection of a sample, is not used in the determination of a margin of dumping for the sample.  (Such
companies will rather be accorded the weighted average margin of the companies actually sampled, or
they will be accorded an individual margin of dumping, should their number be sufficiently limited as
to make it reasonable to grant individual trea tment within the prescribed time limits of the
investigation.)G/ADP/AHG/W/37
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3. However, when first selecting a sample, the Community seeks to maintain one or more co-
operating “reserve companies”, whose data may be brought into the sample where there is a degree of
non-co-operation by some or all of the parties originally selected.
Topic 4 - Special Circumstances under Article 5.6
1. The European Community broadly supports the interpretation of Article 5.6 set out by
New Zealand in its notes of 25 March and 16 September 1997.
2. On principle, a restrictive interpretation  of Article 5.6 is supported, as the waiving of the
requirement for a written application must not open the way for domestic producers to rely upon
national anti-dumping authorities to initiate proceedings, without a real attempt to prepare a written
complaint on their part.  On the other hand, too prescriptive an approach which defines in advance
what circumstances qualify as “special” could be self-contradictory, since exceptional circumstances
are by their nature unpredictable.  The negative list by New Zealand is useful in this respect.  Thus the
notion of “exceptional circumstances” does not refer to a fragmented industry, for example, or anindustry unwilling to devote resources to collatin g “reasonably available” information.  Nor, indeed,
does it refer to direct requests from other branches of government - such other branches should rather
advise industry on the procedure to be followed for submission of an application.
Role of public authorities in advising potential complainants
3. The administering authority itself should of course be allowed to guide domestic industries in
the preparation of a complaint, to reassure them of the security guaranteed to commercially
confidential information, and even to provide factua l information held in its possession (e.g. statistics,
reports) should this be requested.  The availability of advisory manuals should prove helpful in
providing transparent and non-discriminatory guid ance to industry.  In the European Community’s
view, the “exceptional circumstances” meriting invocation of Article 5.6 are more likely to occurwhen the industry does not wish to set the proc eeding in motion out of concern for the commercial
consequences of such action.  The EC has not yet encountered such a situation, however, though it has
met with reluctance by a complaining association to disclose the names of all of the firms on whose
behalf an application was lodged.
Verification of levels of support
4. The initiation of proceedings under Article 5.6 obviates the need for prior determination of
levels of support (“standing”) in accordance with Article 5.4.  However, the European Community
believes that the overall requirement for standing of a proceeding remains unaffected, and that should
the investigating authorities observe, subsequent to “self-initiation” under 5.6, that support for the
proceeding by the domestic industry is insufficient (as revealed, for example, by a lack ofco-operation with the investigation), termination should ensue forthwith.
5. Although, in the absence of an application, the investigating authorities may not be obliged
formally to examine the degree of support for - or opposition to - a written complaint, Article 5.6
nevertheless obliges them to have sufficient  prima facie  evidence of injury “as described in
paragraph 5.2”.  Injury must be measured in terms of impact on a “domestic industry”.  The EC
believes that in the absence of any other guidance in the WTO Agreement, the definition of domestic
industry is governed by the criteria set out in Article 5.4.  These criteria are therefore replicated inArticle 4 of the EC’s Basic anti-dumping Regulation, which specifies that the domestic industry must
cover a major proportion of domestic production.G/ADP/AHG/W/37
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Topic 5: Notification of Government of the exporting Member under Article 5.5.
Introduction
1. The European Community agrees with the assessment of the purpose of Article 5.5 of the
WTO Agreement on anti-dumping presented by Norway.1  The obligation on investigating authorities
to inform the Government of the exporting Member  that a complaint has been received is thus an
exception to the rule that complaints shall not be publicized prior to the issuing of a public notice ofinitiation.
Timing
2. The timing of this step will depend on the internal procedures of the authorities concerned.
While legally, the only requirement is that inform ation take place prior to initiation, the EC agrees
that without a minimum seven day lead time the practical usefulness of this step is lost.
3. In the case of the European Community, the guideline followed in practice is that notification
must take place at the latest 10 working days before an eventual initiation.  By that time, thecomplaint lodged by the Community industry will have been deemed “properly documented”, though
no formal deadline for this step exists in our legislation.
Practicalities
4. In practice the EC informs the Government of the exporting Member by means of a
note verbale  delivered to the Mission of that country in Brussels.  A copy of this note verbale  is sent
to the EC Delegation in the country concerned.
Topic 6 - Hearings under Article 6.2 of the WTO Agreement
WTO requirements
1. Article 6.2 of the WTO-Agreement on the Implementation of Art. VI of the GATT 1994
requires the interested parties in an anti-dumping proceeding to have a full opportunity for the defenceof their interests throughout the investigation.  To this end the authorities enforcing anti-dumping law
shall provide the opportunity for all interested parties to present their views and rebuttal arguments.
On justification they shall also have the right to present other information orally.
2. Article 6.2 of the WTO-Agreement on the Implementation of Art. VI of the GATT 1994
thereby not only provides for the right to a hearing, but more generally, provides for the right to beheard fairly for the duration of anti-dumping proceedings.
Background to EC Rules
3. The EU’s anti-dumping law takes account of the right to a fair hearing - which is a general
principle and fundamental right of European Community law - throughout the administrative
procedure conducted by the European Commission as competent authority.  The Commission has aduty not only to hear interested parties but also to provide them with information.  This places parties
concerned in a position in which they can effectiv ely make known their views on the correctness and
relevance of the facts and circumstances alleged, and on the evidence presented by the Commission in
                                                     
1 See Document G/ADP/AHG/W/33G/ADP/AHG/W/37
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support of its findings.  Formal hearings are one of many procedural elements which safeguard the
right to fair hearing in anti-dumping proceedings and thus sit alongside other procedural provisions
protecting this right.
EC legislation - provisions for parties to be heard
4. Council Regulation No. 384/96 (Basic Regulati on) formally provides for the opportunity to
obtain information and submit arguments and comments in numerous ways.  In the Communitysystem, the arrangements for full and automatic disclosure of facts underpin parties’ ability to defend
and represent their interests fairly and adequately.  Article 20 governs the right to submit information
and comments regarding the imposition of provisional or the planned imposition of definitive duties.
The Commission is obliged to allow a reasonable ti me for parties to submit comments following the
provisional or final disclosure of “essential facts and considerations” upon which findings are based.
Similarly, parties have the right to “amplify, rebut or comment on matters” set out in various types of
reviews (Art. 11, 12 & 13).  Note that the right to be heard is extended beyond narrow definitions ofinterested parties when it comes to the determination of the Community (public) interest in anti-
dumping proceedings, where Article 21 explicitly envisages assessment of the views of users and
consumers of the product, for example.
5. During the investigation itself, interested parties ensure that due account is taken of their
position through exerting their rights to a formal hearing (Art. 6.5), to be provided with theopportunity to meet parties with adverse interest s (Art.6.6), and to inspect non-confidential files
(Art. 6.7).  Formal hearings can be asked for duri ng anti-dumping procedures at two stages: interested
parties can do so either after the notice of the initiation of AD-proceedings in the Official Journal or
after the imposition of provisional duties.  Hearings can then be held on aspects of dumping, injury,
causation and Community interest as well as on aspects of legal procedure.  They can be conducted atthe beginning of the proceeding, during or after verifications, before or after the imposition of
provisional duties.  Typically, from two to four hearings will be held per case.  Oral information
presented during the meeting will be taken into account as long as it is subsequently confirmed in
writing, in both confidential and non-confidential forms if appropriate.
6. Any infringement of the right to a fair he aring during the proceedings may lead to the
annulment of the regulation imposing definitive AD-duties by the Community judiciary.
2
7. Besides formal hearings, additional channels of communication between the Commission andthe interested parties exist in the form of technica l information meetings and post-disclosure meetings.
They differ in comparison to formal hearings by style and procedure.
8. Two possible types of formal hearings (mentioned in paragraph 5 above) exist; one is the
single party hearing, the other is confrontation meeting:
Single party Hearings ( ex parte )
9. According to the Basic Regulation, interested  parties which have made themselves known
following initiation of proceedings in accordance with Article 5.10,  have the right to a hearing.  They
should submit a written request for a hearing within the period specified in the notice of initiation,
confirming that they are an interested party likely to be affected by the result of the proceeding and, if
appropriate, specifying any particular aspect of the case on which they would like to be heard.
                                                     
2 E.g. Case C-49/88 Al-Jubail Fertiliser Compan y (Samad) et Saudi Arabian Fertiliser Company
(Safco) v. Council of the European Communities, ECR 1991, I-3187, para. 15 et. seq.G/ADP/AHG/W/37
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10. Hearings will be attended by Commission staff in charge of the case.  The role of
Commission officials attending hearings is, according to current practice, basically limited to listening
to the information and arguments put forward by the parties.
11. Generally, hearings are not conducted according to a rigid procedure.  Nevertheless,
interested parties asking for a hearing can request the appointment of a hearing officer to preside over
a hearing.  This officer will be an experienced official of the anti-dumping service who is not directlyinvolved with the particular case. Hearings are not public.
12. No new information may be presented by the parties during the hearing if the presentation of
such information would infringe the time limits within which relevant information has to be
communicated to the Commission.  Beyond that time limit parties may only provide additional
comments on data which has already been presented.
Confrontation Meetings
13. On request, confrontation meetings between the parties concerned may be organized by the
Commission.  These meetings are presided over by Co mmission officials.  Contrary to the single party
hearings, there is no time limit within which a request for a confrontation meeting has to be filed.  The
requesting party merely has to have made itself known during the period specified in the notice of
initiation.
14. As in single party hearings, the problem can arise that interested parties offer fresh
information which was not originally provided within the specified time limits.  Such information can
then only be taken into consideration if it is a rebuttal of arguments offered by the other parties or may
be considered as an elaboration of information previously provided.
15. No party can be obliged to attend confrontation meetings.  The Basic regulation makes it
quite clear that there will be no disadvantage for any party not attending a confrontation meeting.  Inpractice confrontation meetings have become more and more rare as investigation procedures have
become increasingly detailed and formalized.
Topic 10 - Duty assessment under Article 9: Refund Procedures
General background and WTO provisions
1. Article 9 of the WTO Anti-Dumping Agreement provides rules for the collection of duties
and the granting of refunds for both the ‘retrospective’ and ‘prospective’ types of collection system:
the European Community operates a prospective system of determination of duties.
2. According to Article 9.3.3 of the Agreement “in determining whether and to what extent a
reimbursement should be made when the export price is constructed in accordance with paragraph 3
of Article 2, authorities should take account of  any change in normal value, any change of cost
incurred between importation and resale, and any movement in the resale price which is duly reflected
in subsequent selling prices, and should calculate the export price with no deduction for the amount of
anti-dumping duties paid when conclusive evidence of the above is provided.”
EC refund procedure
3. Article 11.8 of Council Regulation 384/96 (EC Basic anti-dumping Regulation) gives every
importer the right to request reimbursement of duties collected where it is shown that the dumpingG/ADP/AHG/W/37
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margin, on the basis of which duties are paid, has been eliminated or reduced to a level which is
below the level of a duty in force.3  Of those importers who apply, an estimated 60-70% actually are
granted a refund.
a) Submission, contents and admissibility of a refund application
4. In order to be admissible a refund application must be submitted by the importer which
actually paid the anti-dumping duty within six mont hs of the “due determination” of the definitive
duty levied on the imports concerned, or - for refunds of provisional duties subsequently collected -
within six months of the decision to collect definitively the amounts secured by way of provisional
duty.
5. The applicant must show that the duty paid actually exceeded the dumping margin and duly
support his argument by evidence.4  An application for refund will only be considered to be duly
supported by evidence where it contains precise information on the amount of refund of anti-dumping
duties claimed and all customs documentation relating to the calculation and payment of such amount.The application must additionally include information and evidence necessary for the
(re-)examination of the normal value of the product concerned and in particular the export price of the
product.
6. Importers unrelated to the exporter or producer of a dumped product are excused from the
requirement to provide detailed information or records relating to their exporting supplier (for reasonsof preserving confidentiality).  Instead, they must state in their application that necessary information
will be provided directly to the Commission where they cannot - due to their status as unrelated
importer - provide the information themselves. If the producer or exporter then fails to provide for the
requisite information within a reasonable amount of time the application will be rejected.
7. Finally, the application must contain a declaration that the duty collected has not been
reimbursed by the exporter or any third party and that no compensatory agreement has been made in
regard to the sales under consideration.
b) Investigation and methodology
8. Refunds of duties will normally take place within 12 months.  In no circumstances may they
take more than 18 months after the date on which a request for refund, duly supported by evidence,has been made by an importer (Article 11.8 Basic Regulation).
9. Article 11.9 of the Basic Regulation requires that the refund investigations carried out in order
to determine the dumping margin in the representative period use the same methodology as the
investigation which led to the duty, as long as the circumstances have not changed.  The refund
procedure serves solely to calculate differences between the level of anti-dumping duties collected inthe past and the level of the actual dumping margin  established in the refund investigation.  Note that
                                                     
3 Note that no refund application will be granted on the grounds that the duty exceeds the injury margin
as, long as the duty does not also exceed the dumping  margin (Case T-164/94. PIA HiFi Vertriebs GmbH v.
European Commission, ECR 1995, II-1735).
4 A detailed description of the evidence to be provided and the procedure to be followed is contained in
the Commission notice concerning the reimbursement of anti-dumping duties (OJ 1986 No. C 266/2).P.O. Box 195, 37-39 rue de Vermont, CH-1211 GENEVA 20
Telephone:  (+41-22) 918.22.11
Fax:  (+41-22) 734.22.36 - Telex:  414165 ECO CHG/ADP/AHG/W/37
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the level of the duty applicable to the exporter will not be altered unless the refund investigation has
been carried out in the framework of an interim review.
10. In accordance with Article 9.3.3 of the WTO Agreement on anti-dumping, Article 11.10 of
the Basic Regulation rules on the problem of ‘duty as a cost’ with regard to constructed export prices.
The Commission, when constructing an export price (Article 2.9 EC Basic Regulation), may deduct
the amount of anti-dumping duties paid unless evidence is provided that the duty is truly reflected inthe resale prices and subsequent prices in the Community.
11. Once a refund decision has been taken by the Commission, this is notified to the importer and
to the government of the Member State of the European Union which collected the duties.  The
importer will be reimbursed by this Member State.
12. If, through judicial review of an anti-dumping measure, the European Court deems that a
measure was incorrectly applied, the Commission will take the necessary steps to reimburse duties
collected for the duration of incorrect application of the measure.
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