G/ADP/N/1/EU/3/Suppl.2  
G/SCM/N/1/EU/2/Suppl.2  
 
23 January 2018  
(18-0550) Page: 1/8 
Committee on Anti -Dumping Practices  
Committee on Subsidies and Countervailing Measures  
 Original: English  
 
 NOTIFICATION OF LAWS  AND REGULATIONS  UNDER  
ARTICLES 18.5 AND 32 .6 OF THE AGREEMENTS  
EUROPEAN UNION 
Supplement  
The following communication, dated 15 January 2018 , is being ci rculated at the request of the 
delegation of the European  Union.  
 
_______________  
 
 
In line with the obligations under Article 18.5 of the WTO Ant i-Dumping Agreement and 
Article  32.6 of the Agreement on Subsidies and Countervailing Measures to notify laws, regulations 
and administrative procedures to the Committee on Anti -Dumping Practi ces and the Committee on 
Subsidies and Countervailing Measures respectively, the European Union (EU) hereby notifies the 
Committees:  
 
Regulation (EU) 2017/2321 of the European Parliament and the Council of 12 December 2017 
amends both:   
 
 Council Regulatio n (EC) No 2016/1036 on protection against dumped imports from countries 
not members of the European Community and  
 
 Council Regulation (EC) No 2016/1037 on protection against subsidised imports from 
countries not members of the European Community Regulatio n (EU)  
 
You will find attached a copy of the published text.  
 G/ADP/N/1/EU/3/Suppl.2 • G/SCM/N/1/EU/2/Suppl.2  
 
- 2 - 
 
  Official Journal of the European Union  
 
I 
 
(Legislative acts)  
 
REGULATIONS  
 
REGULATION (EU) 2017/2321 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL  
of 12 December 2017  
 
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  
 
THE EUROPEAN PARLIAMENT AND THE COU NCIL OF THE EUROPEAN UNION,  
 
Having regard to the Treaty on the Functioning of the European U nion, and in particular 
Article  207(2) thereof,  
 
Having regard to the proposal from the European Commission,  
 
After transmission of the draft legislative act to  the national parliaments,  
 
Acting in accordance with the ordinary legislative procedure1, 
 
Whereas:  
 
(1) By Regulation (EU) 2016/10362, the European Parliament and the Council adopted common 
rules for protection against dumped imports from countries tha t are not Member States of the 
Union.  
 
(2) Article 2(7) of Regulation (EU) 2016/1036 constitutes the basis on which normal value 
should be determined in the case of imports from non -market economy countries. In view of 
developments with respect to certain  countries, it is appropriate that normal value be determined 
on the basis of Regulation (EU) 2016/1036 as amended by this  Regulation with effect from 
20 December 2017. In the case of countries which are, at the date of initiation of an investigation, 
not Members of the World Trade Organization (WTO) and listed in Annex I to Regulation (EU) 
2015/755 of the European Parliament and of the Council3, normal value should be determined in 
accordance with a specific methodology designed for those countries. This R egulation is without 
prejudice to establishing whether or not any WTO Member is a market economy or to the terms 
and conditions set out in protocols and other instruments in accordance with which countries have 
acceded to the Marrakesh Agreement Establishi ng the World Trade Orga nization done on 
15 April 1994.4  
 
(3) In light of experience gained in past proceedings, it is appropriate to clarify the 
circumstances in which significant distortions affecting to a considerable extent free market forces 
may be de emed to exist. In particular, it is appropriate to clarify that this is the case when 
reported prices or costs, including the costs of raw materials and energy, are not the result of free 
market forces because they are affected by substantial government in tervention. It is further 
appropriate to clarify that when assessing the existence of significant distortions regard should be 
had, inter alia, to the potential impact of one or more of the following elements: the market in 
question being to a significant extent served by enterprises which operate under the ownership, 
                                                
1 Position of the European Parliament of 15 November 2017 (not yet published in the Official Journal) 
and Council decision of 4 December 2017.  
2 Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on 
protection  against du mped imports from countries not members of the European Union (OJ L 176, 30.6.2016, 
p. 21).  
3 Regulation (EU) 2015/755 of the European Parliament and of the Council of 29 April 2015 on common 
rules for imports from certain third countries (OJ L 123, 19.5.2 015, p. 33).  
4 OJ L 336, 23.12.1994, p. 3.  G/ADP/N/1/EU/3/Suppl.2 • G/SCM/N/1/EU/2/Suppl.2  
 
- 3 - 
 
  control or policy supervision or guidance of the authorities of the exporting country; state presence 
in firms allowing the state to interfere with respect to prices or costs; public policies or measures 
discriminating in favour of domestic suppliers or otherwise influencing free market forces; the lack, 
discriminatory application or inadequate enforcement of bankruptcy, corporate or property laws; 
wage costs being distorted; access to finance granted by institutions which implement public policy 
objectives or otherwise not acting independently of the state.  
 
(4) The Commission should produce, make public and regularly update reports on significant 
distortions, which could potentially result in  an anti -dumping investigation, describing the market 
circumstances concerning those instances in a certain country or a certain sector. Such reports 
and the evidence on which they are based should be placed on the file of any investigation relating 
to tha t country or sector. In such investigations, interested parties should have ample opportunity 
to comment on the reports and the evidence on which they are based. When assessing the 
existence of significant distortions, relevant international standards, inc luding core conventions of 
the International Labour Organisation (ILO) and relevant multilateral environmental conventions, 
should be taken into account, where appropriate.  
 
(5) Costs are normally calculated on the basis of records kept by the exporter an d producer 
under investigation. However, where there are direct or indirect significant distortions in the 
exporting country with the consequence that costs reflected in the records of the party concerned 
are artificially low, such costs may be adjusted or  established on any reasonable basis, including 
information from other representative markets or from international prices or benchmarks. 
Domestic costs may also be used, but only to the extent that they are positively established not to 
be distorted, on t he basis of accurate and appropriate evidence.  
 
(6) When data are sourced in representative countries and the Commission has to establish 
whether the level of social and environmental protection in such countries is adequate, it is 
necessary for the Commi ssion to examine whether those countries comply with core ILO and 
relevant multilateral environmental conventions.  
 
(7) Where part of the costs for an exporter and producer is distorted, including where a given 
input is sourced from different sources, tha t part of the costs should be replaced by undistorted 
costs. In light of experience gained in past proceedings, it is appropriate to further clarify that, for 
the purposes of determining the existence of significant distortions in a third country, due acco unt 
should be taken of all relevant evidence regarding the circumstances prevailing on the domestic 
market of the exporters and producers from that country, which has been placed on the file, and 
upon which interested parties have had an opportunity to com ment, including an opportunity for 
those exporters and producers to conclusively show that their domestic costs are undistorted. 
Where available, such evidence includes relevant reports. Indications as to the existence of 
significant distortions may also b e presented by all relevant stakeholders, including Union industry 
and trade unions. Such indications and the need to avoid any additional burdens for Union industry 
in using the anti -dumping instrument, in particular in view of the economic and trade spec ificities 
of small and medium -sized enterprises, should be considered when deciding on preparing or 
updating the relevant reports.  
 
(8) With respect to the methodology used in the original investigation and to be used in the 
review investigation, Article 11(9) of Regulation (EU) 2016/1036 applies. In that context, it is 
appropriate to clarify that, when examining whether there is an indication that circumstances have 
changed, due account should be taken of all relevant evidence, including relevant reports 
regarding the circumstances prevailing on the domestic market of the exporters and producers and 
the evidence on which they are based, which has been placed on the file, and upon which 
interested parties have had an opportunity to comment.  G/ADP/N/1/EU/3/Suppl.2 • G/SCM/N/1/EU/2/Suppl.2  
 
- 4 - 
 
  (9) In the abs ence of any other specific transitional rules regulating the matter, it is appropriate 
to provide for the application of this Regulation to all decisions on the initiation of proceedings, and 
to all proceedings, including original investigations and review  investigations, initiated on or after 
20 December 2017, subject to Article 11(9) of Regulation (EU) 2016/1036. Furthermore, by way of 
specific transitional rule for existing measures, and having regard to the absence of any other 
specific transitional rul es regulating the matter, in the case of a transition from a normal value 
calculated pursuant to Article 2(7) of Regulation (EU) 2016/1036 to a normal value calculated in 
accordance with the methodology set out in Regulation (EU) 2016/1036 as amended by th is 
Regulation, the original methodology should continue to apply until the initiation of the first expiry 
review following such transition. With a view to reducing the risk of circumvention of the provisions 
of this Regulation, the same approach should app ly with respect to reviews conducted pursuant to 
Article 11(4) of Regulation (EU) 2016/1036. It is also appropriate to recall that a transition from a 
normal value calculated pursuant to Article 2(7) to a normal value calculated in accordance with 
the meth odology set out in Regulation (EU) 2016/1036 as amended by this Regulation would not 
in itself constitute sufficient evidence within the meaning of Article 11(3) of Regulation (EU) 
2016/1036. Such transitional rules should fill a lacuna that would otherwis e risk generating legal 
uncertainty, provide a reasonable opportunity for interested parties to adapt themselves to the 
expiry of the old rules and the entry into force of the new rules, and facilitate the efficient, orderly 
and equitable administration of  Regulation (EU) 2016/1036.  
 
(10) By Regulation (EU) 2016/10371, the European Parliament and the Council adopted common 
rules for protection against subsidised imports from countries th at are not Member States of 
the Union. Experience has shown that the a ctual magnitude of subsidisation is usually discovered 
during the relevant investigation. In particular, investigated exporters are frequently found to 
benefit from subsidies whose existence could not have been reasonably known before carrying out 
the inve stigation. It is appropriate to clarify that, when such subsidies are found in the course of 
any given investigation or review, the Commission should offer additional consultations to the 
country of origin and/or export concerned with regard to such subsid ies identified in the course of 
the investigation. In the absence of specific transitional rules regulating the matter, it is 
appropriate to provide for the application of this Regulation to all decisions on the initiation of 
proceedings, and to all procee dings, including original investigations and review investiga tions, 
initiated on or after 20  December 2017.  
 
(11) Regulation (EU) 2016/1036 and Regulation (EU) 2016/1037 should therefore be amended 
accordingly,  
 
HAVE ADOPTED THIS REGULATION:  
 
Article 1  
 
Regulation (EU) 2016/1036 is amended as follows:  
 
(1) in Article 2, the following paragraph is inserted:  
 
'6a. (a) In case it is determined, when applying this or any other relevant provision of this 
Regulation, that it is not appropriate to use domestic  prices and costs in the exporting country due 
to the existence in that country of significant distortions within the meaning of point (b), the 
normal value shall be constructed exclusively on the basis of costs of production and sale reflecting 
undistorte d prices or benchmarks, subject to the following rules.  
 
The sources the Commission may use include:  
 
— corresponding costs of production and sale in an appropriate representative country with a 
similar level of economic development as the exporting countr y, provided the relevant data 
are readily available; where there is more than one such country, preference shall be 
given, where appropriate, to countries with an adequate level of social and environmental 
protection;  
— if it considers appropriate, undistor ted international prices, costs, or benchmarks; or  
                                                
1 Regulation (EU) 2016/1037 of the European Parliament and of the Council of 8 June 2016 on 
protection against subsidised imports from countries not members of the European Union (OJ L 176, 
30.6.2016, p. 55).  G/ADP/N/1/EU/3/Suppl.2 • G/SCM/N/1/EU/2/Suppl.2  
 
- 5 - 
 
  — domestic costs, but only to the extent that they are positively established not to be 
distorted, on the basis of accurate and appropriate evidence, including in the framework of 
the provisions on interest ed parties in point (c).  
 
Without prejudice to Article 17, that assessment shall be done for each exporter and producer 
separately.  
 
The constructed normal value shall include an undistorted and reasonable amount for 
administrative, selling and general c osts and for profits.  
 
(b) Significant distortions are those distortions which occur when reported prices or costs, 
including the costs of raw materials and energy, are not the result of free market forces because 
they are affected by substantial governme nt intervention. In assessing the existence of significant 
distortions regard shall be had, inter alia, to the potential impact of one or more of the following 
elements:  
 
— the market in question being served to a significant extent by enterprises which ope rate 
under the ownership, control or policy supervision or guidance of the authorities of the 
exporting country;  
— state presence in firms allowing the state to interfere with respect to prices or costs;  
— public policies or measures discriminating in favour  of domestic suppliers or otherwise 
influencing free market forces;  
— the lack, discriminatory application or inadequate enforcement of bankruptcy, corporate or 
property laws;  
— wage costs being distorted;  
— access to finance granted by institutions which imp lement public policy objectives or 
otherwise not acting independently of the state.  
 
(c) Where the Commission has well -founded indications of the possible existence of significant 
distortions as referred to in point (b) in a certain country or a certain s ector in that country, and 
where appropriate for the effective application of this Regulation, the Commission shall produce, 
make public and regularly update a report describing the market circum stances referred to in 
point (b) in that country or sector. S uch reports and the evidence on which they are based shall be 
placed on the file of any investigation relating to that country or sector. Interested parties shall 
have ample opportunity to rebut, supplement, comment or rely on the report and the evidence o n 
which it is based in each investigation in which such report or evidence is used. In assessing the 
existence of significant distortions, the Commission shall take into account all the relevant 
evidence that is on the investigation file.  
 
(d) When filing  a complaint in accordance with Article 5, or a request for a review in accordance 
with Article 11, Union industry may rely on the evidence in the report referred to in point (c) of 
this paragraph, where meeting the standard of evidence in view of Article 5(9), in order to justify 
the calculation of the normal value.  
 
(e) Where the Commission finds that there is sufficient evidence, pursuant to Article 5(9), of 
significant distortions within the meaning of point (b) of this paragraph and decides to initiat e an 
investigation on that basis, the notice of initiation shall specify that fact. The Commission shall 
collect the data necessary to allow the construction of the normal value in accordance wit h 
point (a) of this paragraph.  
 
The parties to the investiga tion shall be informed promptly after initiation about the relevant 
sources that the Commission intends to use for the purpose of determining normal value pursuant 
to point (a) of this paragraph and shall be given 10 days to comment. For that purpose, inte rested 
parties shall be given access to the file, which shall include any evidence on which the 
investigating authority relies, without prejudice to Article 19. Any evidence regarding the existence 
of significant distortions may only be taken into account if it can be verified in a timely manner 
within the investigation, in accordance with Article 6(8). ';  
 
(2) in Article 2, paragraph 7 is replaced by the following:  
 
'7.In the case of imports from countries which are, at the date of initiation of the inves tigation, not 
members of the WTO and listed in Annex I to Regulation (EU) 2015/755 of the European G/ADP/N/1/EU/3/Suppl.2 • G/SCM/N/1/EU/2/Suppl.2  
 
- 6 - 
 
  Parliament and of the Council (*), normal value shall be determined on the basis of the price or 
constructed value in an appropriate representative country, or the price from such a third country 
to other countries, including the Union, or where those are not possible, on any other reasonable 
basis, including the price actually paid or payable in the Union for the like product, duly adjusted if 
necessary to in clude a reasonable profit margin.  
 
The appropriate representative country shall be selected in a reasonable manner, due account 
being taken of any reliable information made available at the time of selection, and in particular of 
cooperation by at least o ne exporter and producer in that country. Where there is more than one 
such country, preference shall be given, where appropriate, to countries with an adequate level of 
social and environmental protection. Account shall also be taken of time limits. Where  appropriate, 
an appropriate representative country which is subject to the same investigation shall be used.  
 
The parties to the investigation shall be informed promptly after its initiation of the country 
envisaged and shall be given 10 days to comment.   
 
(*) Regulation (EU) 2015/755 of the European Parliament and of the Council of 29 April 2015 on common rules 
for imports from certain third countries (OJ L 123, 19.5.2015, p. 33).';  
 
(3) in Article 11(3), the following subparagraph is added:  
 
'Where e xisting anti -dumping measures are based on a normal value calculated pursuant to the 
Article 2(7) as it was in force on 19 December 2017, the methodolo gy laid down in Article 2(1) 
to (6a) shall replace the original methodology used for the determination of  the normal value only 
from the date on which the first expiry review of those measures, after 19 December 2017, is 
initiated. In accordance with Article 11(2), those measures shall remain in force pending the 
outcome of the review. ';  
 
(4) in Article 11(4 ), the following subparagraph is added:  
 
'Where existing anti -dumping measures are based on a normal value  calculated pursuant to 
Article  2(7) as it was in force on 19 December 2017, the methodolo gy laid down in Article 2(1) 
to (6a) shall replace the orig inal methodology used for the determination of the normal value only 
after the date on which the first expiry review of those measures, after 20 December 2017, is 
initiated. In accordance with Article 11(2), those measures shall remain in force pending the  
outcome of the review. ';  
 
(5) in Article 11(9), the following subparagraph is added:  
 
'In relation to the circumstances relevant for the determination of the normal value pursuant to 
Article 2, due account shall be taken of all relevant evidence, includ ing relevant reports regarding 
the circumstances prevailing on the domestic market of the exporters and producers and the 
evidence on which they are based, which has been placed on the file, and upon which interested 
parties have had an opportunity to comm ent.';  
 
(6) Article 23 is replaced by the following:  
 
'Article 23  
 
Report and information  
 
1. The Commission shall, with due regard to the protection of confidential information within 
the meaning of Article 19, present an annual report on the applicat ion and implementation of this 
Regulation to the European Parliament and to the Council. The report shall include information 
about the application of provisional and definitive measures, the termination of investigations 
without measures, reinvestigations , reviews, significant distortions and verification visits, and the 
activities of the various bodies responsible for monitoring the implementation of this Regulation 
and fulfilment of the obligations arising therefrom.  
 
2. The European Parliament may invi te the Commission to an ad-hoc meeting of its responsible 
committee to present and explain any issues related to the implementation of this Regulation. It 
may also, inter alia, on the basis of the report pursuant to paragraph 1 and the presentation and G/ADP/N/1/EU/3/Suppl.2 • G/SCM/N/1/EU/2/Suppl.2  
 
- 7 - 
 
  explanations referred to in this paragraph, communicate any relevant considerations and facts to 
the Commission.  
 
3. No later than six months after presenting the report to the European Parliament and to the 
Council, the Commission shall make the report publ ic.'. 
 
Article 2  
 
In Article 10(7) of Regulation (EU) 2016/1037, the following subparagraph is added:  
 
'The Commission shall also offer consultations to the country of origin and/or export concerned 
with regard to other subsidies identified in the course of the investigation. In those situations, the 
Commission shall send to the country of origin and/or export a summary of the main elements 
concerning other subsidies, in particular those referred to in point (c) of paragraph 2. If the 
additional subsidies are not covered by the notice of initiation, the notice of initiation shall be 
amended and the amended version published in the Official Journal of the European Union . All 
interested parties shall be given additional and sufficient time to comment. '.  
 
Article 3  
 
This Regulation shall enter into force on the day following that of its publication in the Official 
Journal of the European Union .  
 
Article 4  
 
This Regulation shall apply to all decisions on the initiation of proceedings, and to all proceedings, 
including original investigations and review investigations, initiated on or after the date on which 
this Regulation enters into force.  
 
This Regulation shall be binding in its entirety and directly applicable in all Member States.  
 
Done at Strasbourg, 12  December 2017.  
 
For the European Parliament  
The President  
A. TAJANI  
 For the Council  
The President  
M. MAASIKAS  
 
 
 
_______________  
 
 G/ADP/N/1/EU/3/Suppl.2 • G/SCM/N/1/EU/2/Suppl.2  
 
- 8 - 
 
  Commission declaration on transition  
 
The Commission recalls that the purpose of the new methodology is to maintain the continued 
protection of the Union industry against unfair trade practices, in particular those arising from 
significant market distortions. In that respect, the Commission will ensure that the Union industry 
incurs no additional burden when seeking protect ion under the anti - dumping instrument, in 
particular in the context of potential expiry reviews requests lodged after the entry into force of 
the new methodology.  
 
 
_______________  
 
 
Commission declaration on Article 23 and interaction with  
European Par liament and Council  
 
The Commission shall inform the European Parliament and the Council whenever it intends to 
produce or update a report pursuant to Article 2(6a)(c) of the Basic Regulation. Where the 
European Parliament or the Council inform the Commiss ion that they consider that the conditions 
for producing or updating a report pursuant to Article 2(6a)(c) of the Basic Regulation are met, the 
Commission will take the appropriate action and inform the European Parliament and the Council 
accordingly.  
 
 
_______________  
 
 
Commission declaration concerning the reports pursuant to Article 2(6a)c  
of the Basic Regulation  
 
The Commission will swiftly make use of the possibility foreseen under Article 2(6a)c of the Basic 
Regulation to produce reports on signific ant distortions, so that interested parties have those 
reports at their disposal when preparing submissions to which Article 2(6a) of the Basic Regulation 
may apply. It will provide guidance to interested parties on the use of those reports.  
 
 
__________