REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT 31st Annual Report from the Commission to the European Parliament on the EU's Anti-Dumping, Anti-Subsidy and Safeguard activities (2012)
Date: 2013-12-19
Institutions: European Commission
Subjects: Court of Justice of the European Union, anti-dumping duty, anti-dumping measure, anti-subsidy proceeding, import (EU), trade dispute













EUR-Lex - 52013DC0890 - EN











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52013DC0890

REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT 31st Annual Report from the Commission to the European Parliament on the EU's Anti-Dumping, Anti-Subsidy and Safeguard activities (2012) /* COM/2013/0890 final */









REPORT FROM
THE COMMISSION TO THE EUROPEAN PARLIAMENT
31st Annual Report from the Commission to
the European Parliament on the EU's 
Anti-Dumping, Anti-Subsidy and Safeguard activities (2012)
Introduction
This 2012 report is submitted to the European Parliament
following its resolution of 16 December 1981 on the European Union's
anti-dumping activities, and the report of its Committee on industry, external
trade, research and energy. 
This short report provides an overview of the
highlights during 2012 and is supplemented, as in previous years, by a more
detailed Commission Staff Working Document, together with detailed annexes.
This report follows the same general structure of the Working Document,
including all its headings, for easy reference to more comprehensive
information.
The present report and the full Working
Document are also available to the public at http://ec.europa.eu/trade/issues/respectrules/anti_dumping/legis/index_en.htm .
1.           Overview of the
legislation
Anti-dumping (AD), anti-subsidy (AS) and
safeguard (SFG) investigations are conducted on the basis of basic Council
Regulations. An overview of the existing legislation is given in the Working
Document. The basic AD and AS texts will hereafter be referred to as the
"basic Regulation(s)".   During 2012 there were two   amendments to
the Basic anti-dumping regulation. In light of the Court of Justice Ruling in
the Brosmann footwear case[1], it was considered appropriate to codify the practice of
restricting the examination of MET claims to companies that were sampled. It
was also necessary to modify the legal conditions under which exporting
producers in non-market economy countries obtain an individual dumping margin
to comply with the WTO ruling in the Dispute Settlement[2]
case concerning fasteners from the People’s Republic of China.  
2.           Basic concepts
Heading 2 in the working document gives an
overview of the terminology and procedures used in TDI investigations.
3.           TDI
Modernisation 
An exercise to modernise the trade defence
instruments (TDI's) was launched in October 2011. Given that the global trading
environment has changed significantly over the last decade and the fact that
the EUs trade defence system has remained largely unchanged since the
conclusion of the Uruguay Round almost 15 years ago, a need to adapt the TDIs
to the current needs of business was identified.
The aim of the ongoing modernisation project is
to improve the EU's current trade defence system for the benefit of all
stakeholders. The focus lies on finding practical solutions to real problems
which Union producers, importers, traders, etc. encounter through the use of
the instruments.  The aim is to render the system more efficient and measures
more effective without, however, changing the underlying principles and balance
of the system.
Important progress towards meeting this goal
was made in 2012. A public consultation in order to seek stakeholders' views
was held from April to July 2012.  In May 2012 a high level conference was
organised in order to inform stakeholders and hear their concerns. An impact
assessment, which is a requirement for EU law making, was carried out and
presented to the Commission's internal high-level impact assessment board in
December 2012. On this basis, a legislative proposal and a communication
were adopted by the Commission in April 2013. In addition draft guidelines on
four subjects were issued. The legislative proposal was transmitted to Council
and Parliament where it is following the ordinary legislative procedure. The draft
guidelines have been subject to public consultation and after taking into
account the comments received as appropriate, the final guidelines will be
adopted by the Commission in due course. The Commission aims at concluding the
modernisation exercise during the current legislature, i.e. in spring 2014 and
works constructively with the other institutions in order to achieve this goal.
4.           Country-wide
market economy status (MES)
For the purposes of anti-dumping
investigations, a country can be considered a full market economy if it fulfils
five criteria which are set out in detail in the Working document attached to
this report. 
2012
saw the continued evaluation of two of the six requests for country-wide MES
from China, Vietnam, Armenia, Kazakhstan, Mongolia and Belarus. Only Mongolia and Vietnam provided further information in support of their claims
throughout the year and their requests are at various stages of progress. The remaining
other four countries, China, Armenia, Kazakhstan and Belarus did not submit any
relevant information that allowed further analysis of their progress.
Already
in 2010 the consultations with the authorities of the Republic of Belarus were put on hold due to the political situation in the country. In June 2010 additional
questions on further developments of Armenia’s progress towards MES were sent. However,
by the end of 2012 still no new information had been sent to the Commission by Armenia. The other four applicant countries pursued their MES
applications and are at different stages of progress in terms of meeting the
five criteria for MES.
As
regards China, while on several occasions the Chinese authorities agreed in
principle to hold a further working group meeting on MES during 2012, the 
meeting was cancelled. The Commission remains willing to discuss further
progress made by China towards MES, and it is hoped that the Chinese
authorities will continue to engage in the exercise and deliver the necessary
data for the MES analysis by the Commission.  
The
EU-Vietnam MES working group meeting took place in Vietnam in November 2012. A
draft MES report was discussed and the Vietnamese authorities replied to many
questions from the Commission on outstanding issues related to the four
criteria that still need to be fulfilled. The final MES report is expected to
be shared with the Vietnamese authorities in 2013.
The
information collected during the EU-Mongolia working group that took place in
Ulan-Bator in September 2011 along with additional information received in
December 2012 continues being analysed and an MES report will be ready in 2013.
5.           Information
and Communication activities/ Bilateral contacts 
5.1.        Small
and medium sized enterprises (SMEs)
The Trade Defence Helpdesk for SMEs was set up
in view of the complexity of TDI proceedings, especially for SME's, because of
their small size and their fragmentation. Its role is to address specific SME
questions and problems regarding TDIs, both of a general nature or
case-specific. A part of the TDI website is dedicated to SMEs, and refers to
the Trade Defence Helpdesk contact points. 
In 2012, these contact points received many
requests for information, which were all immediately addressed. These requests
concerned both the procedures and content of TDI proceedings.
5.2.        Bilateral contacts/information
activities – industry and third countries
Explaining the legislation and practice of the EU's trade defence
activity is an important part of the work of the TDI services.  
The Commission organized a training seminar on trade defence for
officials from third countries in 2012.  In addition, there were a number of
bilateral contacts dedicated to discussing various trade defence related topics
with a number of third countries including China, Korea, Morocco and Malaysia held in 2012.
.
There were also several meetings with key
stakeholder associations and companies in 2012, amongst which Business Europe
and Eurocommerce.  This included a full one day seminar for Business Europe in
November 2012.  
6.           Hearing
Officer
In February 2012, the role and the powers of the Hearing
Officer for DG Trade, who became operational in 2007, were set out in a formal
mandate by a Decision of the President of the European Commission.  Since 2012,
the Hearing Officer is attached, for administrative purposes, to the
Commissioner responsible for trade policy, thus reinforcing the position's
independence.
The terms of reference also lay out detailed rules on
hearings conducted by the hearing officer on all aspects of a trade proceeding,
from initiation to disclosure of final findings to final action taken.
Furthermore, the mandate grants the hearing officer decision making powers in
case of dispute on access to file, confidentiality of information in the
possession of the Commission and the granting of extensions of deadlines. The
Hearing Officer is empowered to raise with the Commissioner responsible for
trade policy and the Director General for Trade any concerns about the conduct
or content of a trade investigation.
The ever expanding trend of the intervention requests since
the creation of the function of the Hearing Officer in 2007 made another step
in 2012 and increased sharply by more than 50% compared to 2011. In the
reporting period, the Hearing Officer had 132 intervention requests (81 in
2011), out of which 128 related to TDI and concerned 41 TDI proceedings. The
number of hearings also increased significantly by 50% compared to 2011: 39
hearings were held (26 in 2011), out of which 12 were multiparty hearings where
altogether 43 interested parties with similar interests allied in common
hearings.
The interventions were requested by exporting producers in
third countries, by the Union industry, by users and importers as well as by
Governments of third countries. The Hearing Officer intervened on issues
covering all stages of the investigation and made a number of recommendations
to the Commission services with an aim to strengthen the exercise of rights of
defence.  
The main issues that the Hearing Officer faced in 2012 can
be grouped in three categories (i) content and quality of disclosure (ii)
access to files and quality of non-confidential files and (iii) disagreement with determinations, findings and conclusions. 
7.           Overview
of anti-dumping, anti-subsidy and safeguard investigations and measures
7.1.        General
At the end of 2012, the EU had 102 AD
measures and 10 AS measures in force.
In 2012, 0.17% of total imports into the EU were
affected by AD or AS measures.
Please note that details on the issues
hereafter are given in the Working Document attached to this report. The
references to the Annexes of the Working Document can be found beside the
titles. 
7.2.        New investigations (see
Annexes A through E and Annex N)
In 2012, 19 new investigations were initiated.
Provisional duties were imposed in 9 proceedings. 3 cases were concluded with
the imposition of definitive duties. 9 investigations were concluded without
measures. 
7.3.        Review investigations
Review investigations continue to represent a
major part of the work of the TDI services. In the period 2008-2012, they
accounted for 60% of all investigations initiated. Table 2 in the Working
Document provides statistical information for the years 2008-2012.
7.3.1.     Expiry
reviews (see Annex F)
Articles 11(2) and 18 of the basic Regulations
provide for the expiry of measures after five years, unless an expiry review
demonstrates that they should be maintained in their original form. During
2012, 13 measures expired automatically following their 5-year duration.
During 2012, 14 expiry review investigations
were initiated. 9 expiry reviews were concluded with a confirmation of the duty
for a further period of 5 years. 4 expiry reviews were concluded by the
termination of measures. 
7.3.2.     Interim
reviews (see Annex G)
Articles 11(3) and 19 of the basic Regulations
provide for the review of measures during their period of validity. Reviews can
be limited to dumping/subsidization or injury aspects.
During 2012, a total of 5 interim reviews were
initiated. 6 interim reviews were concluded with confirmation or amendment of
duty. 5 interim reviews were concluded with the termination of the measures. 
7.3.3.     “Other”
interim reviews (see Annex H)
There were 4 'other' reviews, i.e. not falling
under Articles 11(3) or 19 of the basic Regulations, initiated during 2012
while 3 such reviews were concluded in the period.
7.3.4.     New
exporter reviews (see Annex I)
Articles 11(4) and 20 of the basic Regulations
respectively provide for a “newcomer” and “accelerated” review in order to
establish an individual dumping margin or an individual countervailing duty for
new exporters located in the exporting country in question which did not export
the product during the investigation period. Such exporters have to show that
they are genuine new exporters and that they have actually started to export to
the EU after the investigation period. As such, an individual duty, which is
usually lower than the country-wide duty, can be calculated for them. 
In 2012, 1 new exporter review was initiated
while 2 such reviews were concluded. 
7.3.5.     Absorption
investigations (see Annex J)
Where there is sufficient information showing
that, after the original investigation period and prior to or following the
imposition of measures, export prices have decreased or that there has been no
or insufficient movement in the resale prices or subsequent selling prices of
the imported product in the EU, an "absorption" review may be opened
to examine whether the measure has had effects on the above-mentioned prices.
Dumping margins may as such be recalculated and the duty increased to take
account of such lower export prices. The possibility of "absorption"
reviews is included in Articles 12 and 19(3) of basic Regulations.
In 2012, there were
no anti-absorption reviews initiated or concluded. 
7.3.6.     Circumvention
investigations (see Annex K)
The possibility of investigations being
re-opened in circumstances where evidence is brought to show that measures are
being circumvented is foreseen in Articles 13 and 23 of the basic Regulations.
In 2012, 13 such investigations were initiated.
2 anti-circumvention investigations were concluded with extension of the
measures and 1 was concluded without extension of the measures. 
7.4.        Safeguard investigations
(see Annex L)
During 2012 there was no safeguard activity.  
8.           Enforcement
of AD/AS measures
8.1.        Follow-up
of measures
The follow-up
activities concerning measures in force were centred on four main areas: (1) to
pre-empt fraud; (2) to monitor trade flows and market developments; (3) to
improve the effectiveness with the appropriate instruments and (4) to react to
irregular practices. These activities enabled the TDI services to pro-actively
in cooperation with Member States ensure the proper enforcement of trade
defence measures in the European Union. 
8.2.        Monitoring of undertakings (see Annexes M and Q)
Monitoring of undertakings forms part of the enforcement activities,
given that undertakings are a form of AD or AS measures. They are accepted by
the Commission if it is satisfied that they can effectively eliminate the
injurious effects of dumping or subsidisation.
At the beginning of 2012, there were 18
undertakings in force. During 2012, the following changes to the portfolio of
undertakings took place: undertaking of one company  came to an end due to the
expiry/repeal of the measures. Undertakings of two companies were withdrawn as
their monitoring would become unworkable and impracticable. This brought the
total number of undertakings in force at the end of 2012 to 15.
9.           Refunds 
Articles 11(8) and 21(1) of the basic Regulations allow importers to
request the reimbursement of the relevant collected duties where it is shown
that the dumping/subsidy margin has been eliminated or reduced to a level below
that of the duty in force.
During 2012, 26 new refund requests were
submitted. At the end of 2012, 10 refund investigations were on-going, covering
35 requests. In 2012, 26 Commission Decisions were adopted: 12 granting partial
refund and 14 rejecting the refund requests. 8 requests were withdrawn.
10.         Judicial review: decisions
given by the Court of Justice (CoJ) / General Court (GC)
(see Annex S)
In 2012, the General Court rendered 13
judgments relating to the areas of anti-dumping or anti-subsidy.  
In 2012, the Court of Justice rendered 9 judgments relating to the area of anti-dumping. 6 of
those judgments concerned appeals against the judgments of the General Court.
In addition the Court of Justice rendered 3 judgments in reply to requests for
a preliminary ruling.
There were 23 new cases lodged in 2012, 17
before the GC and 6 before the COJ. 
A list of the AD/AS cases before the GC and the COJ still pending at
the end of 2012 is given in Annex S of the Working Document.
11.         Activities in the framework
of the World Trade Organization (WTO)
11.1.      Dispute settlement in the field of AD, AS and SFGs 
The WTO provides for a rigorous procedure for the settlement of
disputes between WTO Members concerning the application of the WTO agreements.
In July 2012, Indonesia requested WTO
consultations with the European Union with respect to anti-dumping measures
imposed by the European Union on the imports of fatty alcohols and with respect
to certain aspects of the investigation underlying these measures.
 11.2.     Other WTO activities 
The Negotiating Group on Rules held a formal meeting on 29 February
2012.  The sole purpose of the meeting was to confirm the appointment of
H.E. Mr. Wayne McCook (Jamaica) the Chairperson-Designate by the Group. 
Subsequently, the Technical Group, a subgroup
of the negotiating group, was convened twice (in February and April 2012).
In parallel to these activities, participation
by the Commission services in the regular work of the Anti-dumping, Subsidies
and Countervailing and Safeguards Committees continued. The Committees met
twice in regular sessions to review notifications and raise issues of special
interest.  In addition the informal technical group on Anti-dumping met a
number of times during 2012. 
Conclusion
2012 showed a decrease as regards the number of
new cases initiated, provisional and definitive measures imposed over the
previous year. The number of investigations terminated without the imposition
of measures also decreased slightly compared to the previous year. Regarding
reviews, these continue to represent a significant part of the work of the
services with the number of reviews initiated increasing by more than a half
when compared to 2011. The number of reviews terminated decreased by a third
when compared to 2011 figures.  In 2012 trade defence measures in place
affected 0.17% of total imports into the EU.
[1]Case C-249/10 P Brosmann Footwear (HK) and others v
Council, judgment of 2 February 2012.
[2] ( 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.