WORLD TRADE  
ORGANIZATION   
G/ADP/N/1/EU/1* 
16 October 2012 
 (12-5619) 
Committee on Anti-Dumping Practices Original:   English 
  
 
NOTIFICATION OF LAWS AND REGULATIONS UNDER  
ARTICLE 18.5 OF THE AGREEMENT 
 
EUROPEAN UNION 
 
 
 The following communication, dated 15 October 2012, is being circulated at the request of the Delegation of the European Union.  
_______________ 
 
  Pursuant to Article 18.5 of the WTO Anti-Du mping Agreement, the EU hereby notifies the 
attached Regulation (EU) No 765/2012 of the Eu ropean Parliament and of the Council of 
13 June 2012 amending Council Regulation (EC) No 1225/2009 on protection against dumped 
imports from countries not members of the European Community.  The new Regulation was 
published in the Official Journal of the European Union L 237 of 3 September 2012, p. 1 in all 23 EU 
official languages.   
                                                      
* Please note that the last notification from the European Union relating to laws and regulations under 
Article 18.5 of the Agreement could be found in document G/ADP/N/1/EEC/2/Suppl.8. G/ADP/N/1/EU/1 
Page 2  
 
  REGULATION (EU) No 765/2012 OF THE EUROPEAN PARLIAMENT  
AND OF THE COUNCIL 
of 13 June 2012 
amending Council Regulation (EC) No 1225/2009 on protection  
against dumped imports from countries not members of  
the European Community  
 
 THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 
Having regard to the Treaty on the Functioning of  the European Union, 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 or dinary legislative procedure
1, 
Whereas: (1) On 28 July 2011, the Dispute Settlement B ody ('DSB') of the World Trade Organisation 
('WTO') adopted the Appellate Body Report and the Panel Report as modified by the 
Appellate Body Report ('the Reports') in the dispute 'European Communities  Definitive 
Anti-Dumping Measures on Certain Iron or Steel Fasteners from China'
2. 
(2) In the Reports, it was found, inter alia, that Article 9(5) of Council 
Regulation (EC) No 1225/2009 of 30 Novemb er 2009 on protection against dumped imports 
from countries not members of the European Community3 ('Basic Anti-Dumping Regulation') 
was inconsistent with Articles 6.10, 9.2 a nd 18.4 of the WTO Anti-Dumping Agreement and 
Article XVI:4 of the WTO Agreement. Article  9(5) of the Basic Anti-Dumping Regulation 
provides that individual exporting producers in non-market economy countries which do not 
receive market economy treatment pursuant to point (c) of Article 2(7) of the Basic Anti-Dumping Regulation will be subject to a c ountrywide duty rate unless such exporters 
can demonstrate that they meet the conditions for individual treatment ('IT') set out in Article 9(5) of the Basic Anti-Dumping Regulation. 
(3) The Appellate Body found that Article 9(5) of the Basic Anti-Dumping Regulation 
establishes a presumption that exporting producers operating in non-market economy countries are not entitled to IT and that in or der to qualify for IT, the onus is on them to 
demonstrate that they satisfy the criteria of th e IT test.  According to the Appellate Body, no 
legal basis for such a presumption is provided for in the relevant WTO agreements. 
(4) However, the Appellate Body clarified that, when determining a single dumping margin and a 
single anti-dumping duty for a number of exporte rs, the consistency of that determination 
with Articles 6.10 and 9.2 of the WTO Anti-Dumping Agreement will depend on the 
existence of situations indicating that two or mo re exporters, albeit legally distinct, are in such 
a relationship that they should be treated as a single entity.  Such situations may include:  
                                                      
1 Position of the European Parliament of 10 May 2012  (not yet published in the Official Journal) and 
decision of the Council of 30 May 2012. 
2 WTO, Report of the Appellate Body, AB-2011-2, WT/DS397/AB/R, 15 July 2011.  WTO, Report of 
the Panel, WT/DS397/R, 3 December 2010. 
3 OJ L 343, 22.12.2009, p. 51.  G/ADP/N/1/EU/1 
 Page 3 
 
 
  (i) the existence of corporate and structural  links between the exporters, such as common 
control, shareholding and management;  (ii) th e existence of corporate and structural links 
between the State and the exporters, such as co mmon control, shareholding and management; 
and (iii) control or material influence by the State in respect of pricing and output.  In this regard, the terms in the proposed amendments to Article 9(5) of the Basic Anti-Dumping 
Regulation reflecting these situations should be read in the light of the Appellate Body's 
clarifications without prejudice to terms usi ng the same or a similar wording in other 
provisions of the Basic Anti-Dumping Regulation. 
(5) On 18 August 2011, the Union notified the DSB that it intends to implement the 
recommendations and rulings of the DSB in this  dispute in a manner that respects its WTO 
obligations. 
(6) For that purpose, it is necessary to amend the provisions of Article 9(5) of the Basic 
Anti-Dumping Regulation, 
HAVE ADOPTED THIS REGULATION: 
Article 1 
Article 9(5) of Regulation (EC) No 1225/2009 is replaced by the following: 
'5. An anti-dumping duty shall be imposed in the appropriate amounts in each 
case, on a non-discriminatory basis on imports of a product from all sources found to be dumped and causing injury, except for imports from those sources from which undertakings under the terms of this  Regulation have been accepted. 
The Regulation imposing anti-dumping meas ures shall specify the duty for each 
supplier or, if that is impracticable, th e supplying country concerned.  Suppliers 
which are legally distinct from other supplie rs or which are legally distinct from the 
State may nevertheless be considered as a single entity for the purpose of specifying 
the duty.  For the application of this s ubparagraph, account may be taken of factors 
such as the existence of structural or co rporate links between the suppliers and the 
State or between suppliers, control or material influence by the State in respect of pricing and output, or the economic structure of the supplying country.'. 
Article 2 
 This Regulation shall enter into force on the third day following that of its publication in the 
Official Journal of the European Union . 
 It shall apply to all investigations initia ted pursuant to Regulation (EC) No 1225/2009 
following the entry into force of this Regulation. 
 This Regulation shall be binding in its entirety and directly applicable in all Member States. 
 Done at Strasbourg, 13 June 2012. 
For the European Parliament 
The President  
M. SCHULZ For the Council 
The President  
N. WAMMEN 
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