Council Regulation (EC) No 2238/2003 of 15 December 2003 protecting against the effects of the application of the United States Anti-Dumping Act of 1916, and actions based thereon or resulting therefrom
Date: 2003-12-15
Institutions: Council of the European Union
Subjects: United States, anti-dumping legislation, repeal, restriction on competition

20.12.2003

EN

Official Journal of the European Union

L 333/1

I

(Acts whose publication is obligatory)

COUNCIL REGULATION (EC) No 2238/2003

of 15 December 2003

protecting against the effects of the application of the United States Anti-Dumping Act of 1916,
and actions based thereon or resulting therefrom

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European
Community, and in particular Article 133 thereof,

Having regard to the proposal from the Commission,

Whereas:

(1)

(2)

(3)

(4)

The objectives of the Community include contributing
to the harmonious development of world trade and to
the progressive abolition of restrictions on international
trade.

the Anti-
In the United States of America (‘USA’),
Dumping Act of 1916 (1) provides for civil and criminal
proceedings and penalties against dumping of any art-
icles when conducted with an intent to destroy or injure
an industry in the USA, or to prevent the establishment
of an industry in the USA, or to restrain or monopolise
any part of trade and commerce in such articles in the
USA.

On 26 September 2000, the Dispute Settlement Body of
the World Trade Organisation (WTO), adopting the
Appellate Body report (2) and the Panel report (3), as
upheld by the Appellate Body report, found the Anti-
Dumping Act of 1916 to be incompatible with the US
the WTO agreements, notably by
obligations under
providing remedies against dumping, such as the imposi-
tion of treble damages, fines and imprisonment, none of
which is permitted by the General Agreement on Tariffs
and Trade 1994 (‘GATT 1994’) or by the Agreement on
Implementation of Article VI of the General Agreement
on Tariffs and Trade 1994 (‘AD Agreement’).

The USA failed to comply with the Panel and Appellate
Body recommendations and rulings within the time limit
of 20 December 2001. As a result,
the Community
requested authorisation to suspend the application to the
USA of its obligations under GATT 1994 and the AD
Agreement.

(5)

(6)

(7)

(8)

(9)

In February 2002, the Community agreed to suspend
the arbitration on its request, on the express under-
standing that a bill was pending in the US Congress to
repeal the Anti-Dumping Act of 1916 and to terminate
the on-going cases before US Courts.

The Anti-Dumping Act of 1916 has yet to be repealed,
and claims brought under this Act are pending before
US Courts against persons under the jurisdiction of the
Member States.

These judicial proceedings are causing substantial litiga-
tion costs and may ultimately result
in a judgment
awarding treble damages.

By its maintenance and application, the Anti-Dumping
Act of 1916 impedes the attainment of the aforemen-
tioned objectives, affects the established legal order and
has adverse effects on the interests of the Community
and the interests of natural and legal persons exercising
rights under the Treaty.

Under these exceptional circumstances, it is necessary to
take action at Community level to protect the interests
of the natural and legal persons under the jurisdiction of
the Member States, in particular by removing, neutra-
lising, blocking or otherwise counteracting the effects of
the Anti-Dumping Act of 1916,

HAS ADOPTED THIS REGULATION:

Article 1

(1) Enacted under the heading of ‘unfair competition’ in Title VIII of the
Revenue Act of 1916; Title VIII of that Act is codified at United
States Code 71-74, cited as 15 U.S.C §72.
(2) AB-2000-5 and AB-2000-6, 28 August 2000.
(3) United States — Anti-Dumping Act of 1916, Panel report (WT/DS/

136/R, 31 March 2000).

No judgment of a court or tribunal and no decision of an
administrative authority located in the United States of America
giving effect, directly or indirectly, to the Anti-Dumping Act of
1916 or to actions based thereon or resulting therefrom, shall
be recognised or be enforceable in any manner.

L 333/2

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Official Journal of the European Union

20.12.2003

Article 2

Article 3

1.
Any person referred to in Article 3 shall be entitled to
recover any outlays, costs, damages and miscellaneous expenses
incurred by him or her as a result of the application of the
Anti-Dumping Act of 1916 or by actions based thereon or
resulting therefrom.

The persons referred to in Article 2(1) shall be:

(a) any natural person being a resident in the Community;

(b) any legal person incorporated within the Community;

Recovery may be obtained as soon as an action under the

2.
Anti-Dumping Act of 1916 is commenced.

(c) any natural or legal person referred to in Article 1(2) of

Regulation (EEC) No 4055/86 (1);

Recovery may be obtained from the natural or legal
3.
person or any other entity that brought a claim under the Anti-
Dumping Act of 1916 or from any person or entity related to
that person or entity. Persons or entities shall be deemed to be
related if:

(a) they are officers or directors of one another's businesses;

(b) they are legally recognised partners in business;

(c) one of them controls directly or indirectly the other;

(d) both of them are directly or indirectly controlled by a third

person

4. Without prejudice to other means available and in
accordance with applicable law, the recovery may take the
form of seizure and sale of assets held by the defendant,
including shares held in a legal person incorporated within the
Community.

(d) any other natural person acting in a professional capacity
within the Community, including in territorial waters and
air space and in any aircraft or on any vessel under the
jurisdiction or control of a Member State.

For the purposes of point (a),
‘being a resident in the Com-
munity’ shall mean being legally established in the Community
for a period of at least six months within the 12-month period
immediately prior to the date on which, under this Regulation,
an obligation arises or a right is exercised.

Article 4

into force on the 20th day
This Regulation shall enter
following that of its publication in the Official Journal of the
European Union.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels, 15 December 2003.

For the Council

The President

A. MARZANO

(1) OJ L 378, 31.12.1986, p. 1; Regulation as last amended by Regu-

lation (EEC) No 3573/90 (OJ L 353, 17.12.1990, p. 16).