EN Official Journal of the European Union C 86/5

Notice regarding the ruling of the Dispute Settlement Body of the World Trade Organisation adopted on 28 July 2011

2012/C 86/04

This notice is published pursuant to Council Regulation (EC) No 1515/2001 on the measures that may be taken by the Community following a report adopted by the WTO Dispute Settlement Body concerning anti-dumping and anti-subsidy matters (1) (‘the WTO enabling Regulation’).

On 28 July 2011, the Dispute Settlement Body of the WTO (‘DSB’) adopted an Appellate Body report and a Panel report as modified by the Appellate Body report on the case ‘European Communities — Definitive Anti-Dumping Measures on Certain Iron or Steel Fasteners from China’ (‘reports’) (2).

In the reports, it was found, inter alia, that Article 9(5) of Council Regulation (EC) No 1225/2009 (3) (‘the Basic Regulation’) was inconsistent with Articles 6.10, 9.2 and 18.4 of the WTO Anti-Dumping Agreement and Article XVI:4 of the WTO Agreement. Article 9(5) of the Basic Regulation provides that individual exporting producers in non-market economy countries which do not receive market economy treatment pursuant to Article 2(7)(c) of the Basic Regulation will be subject to a countrywide duty rate unless such exporters can demonstrate that they meet the conditions for individual treatment laid out in Article 9(5) of the Basic Regulation (‘the DSB finding on Article 9(5) of the Basic Regulation’).

The purpose of this notice is to inform parties of the manner in which the DSB finding on Article 9(5) of the Basic Regulation will be taken into account in respect of anti-dumping measures in force. The implementation of the DSB findings contained in the reports with regard to Council Regulation (EC) No 91/2009 (4) will be the subject of a separate notice.

A non-exhaustive list of measures in force concerned by this notice is attached in the Annex.

The Commission invites any exporting producer in non-market economy countries which considers that such measures should be reviewed in the light of the legal interpretations regarding Article 9(5) contained in the reports to request a review on the basis of Article 2 of the WTO enabling Regulation.

The relevant Union institution may repeal, amend or maintain the measures reviewed in order to reflect the review findings. Parties requesting a review should be aware that if the findings relating to them require an amendment of the measures, such amendment may result in a decrease or an increase in the level of the measures.

Once a review has been initiated, the Commission reserves the right to finalise it even if the party requesting the review decides to withdraw the review request.

(a) Conditions for reviews of measures in force

Following the reports, the Commission intends to consider applications for reviews pursuant to the WTO enabling Regulation: 1. where the applicant was denied individual treatment in accordance with the provisions of Article 9(5) of the Basic Regulation, or 2. where the applicant considers that it was discouraged from cooperating and requesting individual treatment in the investigation leading to the adoption of the anti-dumping measures because of the administrative burden imposed by Article 9(5) of the Basic Regulation or because it considered that it did not meet all criteria required by Article 9(5) of the Basic Regulation.

(b) Procedure

To be admissible, an application shall:

(i) state that the anti-dumping measure to which the applicant's exports to the European Union are subject is based on circumstances mentioned in point (a) above; and

(ii) contain information on export quantities to the European Union and export prices and comparison within the meaning of Article 2 of the Basic Regulation covering the investigation period on the basis of which the applicable anti-dumping duty was based.

Should the use of export data from the applicant covering the original investigation period become impracticable (e.g., because the original investigation period is too remote in time and there are no verifiable records of the export data), the Commission would explore the possibility in duly justified cases of initiating a review for a recent investigation period. In that case, information should normally cover at least the last six months prior to the publication of the present notice.

In any event, the right to submit a request for an interim review in accordance with Article 11(3) of the Basic Regulation remains unaffected.

Any written application for a review shall be addressed to:

European Commission Directorate-General for Trade Directorate H Office: N105 04/092 1049 Bruxelles/Brussel BELGIQUE/BELGIË

Fax +32 22956505

E-mail: TRADE-defence-complaints@ec.europa.eu

The Commission will process the applications for reviews based on the WTO enabling Regulation within a reasonable period of time, and will publish a notice of initiation of such reviews if a duly substantiated application is received.

In line with Article 3 of the WTO enabling Regulation, any measures adopted pursuant to that Regulation following a review will not have retroactive effect.

(1) OJ L 201, 26.7.2001, p. 10.

(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, 29 September 2010. The reports can be downloaded from the WTO's website (http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds397_e.htm).

(3) OJ L 343, 22.12.2009, p. 51.

(4) OJ L 29, 31.1.2009, p. 1.