Trade Guide for Exporter

8/8/2019 Trade Guide for Exporter

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How do I fnd my way?

Tre efece ITreT anti-dumping anti-subsidy safeguards

GUIDE

FOR

EU

E

XPORTER

S


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There has been a remarkable

increase in the use of Trade

Defence Instruments by third

countries since the beginning

of the economic crisis, both in

terms of initiation of new in-

vestigations as well as in the

number of measures adopted.

Although the use of these instru-

ments is legitimate, they have to

be applied in line with the WTO

provisions.

However, in the current context,

WTO standards have been fre-quently overlooked and in an in-

creasing number of cases poor

standards at initiation and during

the investigation have been ob-

served. The indiscriminate use of

safeguards is also of special rel-

evance, as this instrument does

not tackle unfair practices, but

prevents exports of all origins

from entering domestic markets.

The European Union, the worlds

largest exporter, has been ad-

versely affected by these meas-

ures. EU companies are nding

it more difcult to access third

country markets, sometimes de

facto closed due to the imple-

mentation of these measures.

Improving market access to

European rms in third coun-

tries has been one of the

main priorities of the Spanish

Presidency in the commercial

policy area. Many EU compa-

nies, especially SMEs, are not

aware of the existence of Trade

Defence Instruments and what

they can do to preserve their

right to compete in third country

markets.

The Spanish Presidency has

decided to promote the pub-lication of this Guide to assist

EU exporting companies facing

trade defence actions by third-

countries. I am condent that

it will be a useful and valuable

tool for EU rms involved in such

proceedings.

I want to thank the Commission

services for the thorough work

done in the elaboration of this

Guide, and also EU Member

States and stakeholders who

have actively participated in

this initiative by sharing their

experience and providing the

necessary inputs.

Alf

B BAg

Spanish

Secretaryof Statefor Trade

forewo

rd


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1

In a globalised economy, EU

companies have to compete

on their domestic markets as

well as on markets abroad.

This is why so much of the

Commissions current efforts

are focused on creating new op-

portunities for EU exporters and

ensuring that they can compete

and do business in foreign mar-

kets on fair terms. This is even

more important in the current

economic crisis. It has reinforced

the importance of international

rules within the global tradingsystem. Unlike others, the EU

has stood rm against the temp-

tation to introduce protectionist

measures or use trade defence

instruments to close markets,

particularly in the fastest grow-

ing emerging economies.

However, trade defence instru-

ments are part of WTO rules.

They are part of a wider under-

standing with our citizens that

open markets generally bring

opportunities, provided they

are backed up by rules to en-

sure that trade takes place on a

level playing eld. When properly

applied, trade rules ensure that

all trading partners can compete

on the basis of their compara-

tive advantages and ensure that

citizens and society come out

as winners. This means that all

countries should be able to act

against unfair trade. But this

must be done within a clear and

transparent legal framework;

one which offers guarantees

that rules are not open to pro-

tectionist pressures or political

inuence. This is the way the

EU approaches trade defence.

It is what we expect also from

our trading partners around the

world.

Of course, much of the burden

of such investigations falls on

business itself whether the

investigation is launched by

the EU or by a third country.

You are asked to cooperate onwhat are often quite techni-

cal and detailed enquiries and

where you sometimes lack the

necessary technical and legal

expertise and experience. This is

a particular challenge for SMEs.

The European Commission is

conscious of this burden when

pursuing its own investigations.

It is also conscious that third

countries use of trade defence

instruments place a similar bur-

den on your companies.

This guide therefore provides a

useful tool to help you nd your

way in the trade defence world.

It complements the advice and

expertise that is already avail-

able from different sources and

can help EU businesses in the

event that they nd themselves

subject to a trade defence inves-

tigation launched by one of our

trading partners.

KAl

g

EU Trade

Commissionerfor Trade

Guide for EU exporters


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3

ntroduction 4

hapter 1: Dumping, subsidy, safeguards: the basic principles 6

What is dumping? 6

What is a subsidy? 6What is a safeguard? 7

What are the requirements to impose measures? 7

What is the legal framework? 8

What kind of measures can be imposed? 8

hapter 2: The investigation 9

On what grounds is an investigation initiated? 9

Why an investigation? 9

How am I informed of an investigation? 9

Should I participate in the investigation? 9

Who should I contact? 10

What are the main steps of an investigation? 10

hapter 3: The rights and obligations of exporters 12

What are my rights? 12

1. Right to submit information 12

2. Right to access information and to comment thereon 14

3. Right to be heard 15

What are my obligations? 16

1. Register 16

2. Meet the deadlines 16

3. Adequately co-operate 16

hapter 4: Am I concerned by a procedure and if so to what extent? 18

hapter 5: How do I decide to co-operate? 19

What are the benets of co-operation? 19

What are the costs of co-operation? 19

What are the consequences of non cooperation? 19

How do I decide to co-operate? 20

Do I need to co-operate in a safeguard case? 20

hapter 6: What is the role of the other various parties? 21

What is the role of the European Commission? 21

What is the role of the administration of the Member States? 22What is the role of embassies and the EU delegations in the investigating country? 23

What is the role of the EU association of which I am a member? 23

What is the role of my customers in the investigating country? 23

What is the role of my related companies? 23

hapter 7: Measures have been imposed, what is still possible? 24

Review of measures 24

Legal challenge of measures 25

ableo

on

tents

Guide to EU exporters


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4

ntroduction

If your competitors in foreignmarkets claim that you are eitherdumping your exports on theirmarket, that your exports aresubsidised or that they have to

face a signicant increase ofimports which is harmful fortheir business, they can ask theirnational authorities to introducetrade defence measures in orderto remedy the situation. This mayin turn have an impact on yoursituation as you may be subjectto a time-consuming investigationcarried out by the nationalauthorities of the importingcountry and possibly have to facemeasures (in the form of additional

duties or quotas) on your futureexports to that country.

This guide will help to betterunderstand the main concepts oftrade defence and will give adviceon how to deal with trade defenceinvestigations.

With the increasing globalizationof trade, companies doingbusiness abroad, need to take intoaccount their obligation to complywith international trade rules. This

is not always an easy task.

Although the general tendencynowadays is to remove obstaclesto trade, the international tradingsystem allows countries tointroduce restrictive measuresin order to address very speciccircumstances. These measuresare called trade remedies or tradedefence instruments, and theyare permitted only under strictconditions.

There are three Trade DefenceInstruments (TDI ): the anti-dumping instrument, the anti-subsidy instrument and thesafeguard instrument. While therst two instruments act againstunfair trade practices in caseswhere imports are made underconditions that are actionableunder the rules of internationaltrade, the objective of the latteris to give an industry in theimporting country time to adjust toa signicant increase of imports.


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5 Guide for EU exporters 5


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6 Dumping, subsidy, safeguards: the basic principles

WHAT IS A SUBSIDY?

A subsidy is a nancial contribution by a governmentor a public body which confers a benet to a recipient.

A nancial contribution may take various forms suchas grants, loans, tax credits, or government-providedgoods or services.

A benet is conferred if any of these contributions areprovided on more favourable terms than available onthe market. For example, if a government provideselectricity at below market price or buys a productat above its market value.

Subsidies that can be acted against, so calledcountervailable subsidies, are subsidies that arespecic to one company or one sector.

An anti-subsidy measure (also called countervailingmeasure) usually in the form of a duty is applied tocounteract the injurious effects of subsidised importsand restore fair competition. It should thus correspondto the difference between a subsided export price anda non-subsidised export price.

A company is dumping if it is exporting a product

at a price lower than its "normal value". The normalvalue of a product is considered to be the price ofthe product when sold in the domestic market or itscost of production.

An anti-dumping measure usually in the form ofa duty is applied to counteract the injurious effectsof dumped imports and restore fair competition. Themeasure is based on the dumping margin, whichconsists of a comparison between the export priceand the normal value. This comparison is made foridentical or comparable product types. It may beadjusted for differences affecting price comparability

such as differences in the conditions and terms ofsale, levels of trade, physical characteristics, etc. inorder to ensure such fair comparison.

What do I do if I am not dumping?

Antidumping measures are country-wide, i.e. theyaffect all exports of the product under investigationfrom one or several countries. Therefore, even ifyour company is not exporting at dumped prices,it needs to cooperate in the proceeding in order todemonstrate that this is indeed the case. It wouldthen be exonerated.

WHAT IS DUMPIG?

What is dumping?

Domestic price = 120

Export price = 100

Dumping margin = 20

ha

pter1

Dumping,

sub

sidy,safeguards:thebasicprincip

les

A subsidy is a nancialcontribution by a

government or a public

body which confers a

benet to a recipient.


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Guide for EU exporters 7

An industry suffers injury when there is deterioration in its

economic situation.

Injury is determined through an objective examination of all the

relevant economic factors, such as production, sales, marketshare, prots, productivity, capacity, capacity utilisation, etc.

This list is not exhaustive.

Note that in safeguards, serious injury needs to be determined.

This is a higher level of injury than material injury required in

anti-dumping and anti-subsidy proceedings.

It should be demonstrated that the imports in question have

caused the injury to a domestic industry. This would typically

be the case when events occur simultaneously, e.g. increased

imports and decreased sales/production of the domestic

industry.

Very often factors other than imports also cause injury to the

domestic industry. It should be demonstrated that those are

not the main causes of the injury. Those factors could be prices

and volume of non dumped/subsidised imports, contraction

in demand, changes in the pattern of trade, or developments

in technology.

Unlike the anti-dumping and anti-

subsidy instruments, safeguards do

not focus on whether trade is fair or

not. Terefore, the legal conditions for

imposing measures are more stringent

e.g. the standard of injury.

What is ausality?What is injuy?

Safeguard measures may beintroduced when an industryis negatively affected by anunforeseen, sharp and suddenincrease of imports. The objectiveof safeguard measures is togive the industry a temporarybreathing space to reduce thepressure of imports, in orderto make necessary changes.Safeguards always come with anobligation to restructure.

While anti-dumping and anti-subsidy measures are takenagainst specic countries (and

The very rst condition to imposemeasures is to determine thatimports are either dumped(anti-dumping), subsidised(anti-subsidy), or that there wasa sharp increase of imports(safeguards). There are howeveradditional requirements: it alsohas to be established that theseimports had a negative impacton the economic situation of thedomestic industry, i.e. that thereis injury. In other words, theinvestigating authorities need todemonstrate that there is a causalrelationship between the importsand the injury.

To summarise, measures may only be imposed if three requirements are fullled: (i) the existence of dumping/

subsidisation/surge of imports, (ii) a domestic industry suffering injury and (iii) the existence of a causal link,

proving that the injury is caused by the imports and not by other factors.

exporters are attributed anindividual duty depending on theirown situation, to the extent theyco-operate), safeguards applyto imports from all countries. Inother words they are applied to allimports regardless of their source,and the same measure is appliedto each exporter.

Therefore, the safeguardprocedure differs from theanti-dumping and anti-subsidy

proceedings in several aspects(see chapter II).

Public interest test: countriesmay decide to apply measuresonly if it is demonstrated that itwould not be against their overallpublic interest, i.e. that themeasures would not cause moreharm to the overall economy thanthey bring relief to the domesticindustry suffering from theimports. Therefore, the interestsof industrial users of the imports,importers and consumers have tobe taken into account.

WHAT IS A SAFEGUARD?WHAT ARE THE REUIREMETSTO IMPOSE MEASURES?


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ANTI-DUMPING AND ANTI-SUBSIDY measures are normallyimposed for ve years with thepossibility to extend them on thebasis of a review investigationfor further ve year period(s).

Provisional anti-dumping andanti-subsidy measures may beimposed not earlier than 60 daysafter initiation of an investigation.Such provisional measures can beimposed for a maximum period of4 months for anti-subsidy and 6months for anti-dumping.

The measures usually take theform of an ad valorem duty, i.e.a duty calculated on the value ofthe invoice, e.g. 15%, but could

also be a specifc duty, i.e. a duty

In anti-dumping and anti-subsidy proceedings, an exporter can offer a price undertaking, instead of being subject

to an anti-dumping or anti-subsidy duty.

With a price undertaking, an exporter agrees to export the product under investigation above a certain price limit, i.e.

at non-dumped or non-subsidised prices. When the export prices are above this threshold, the company's products

are exempt from duties that would otherwise be charged when they are imported. This is of course subject to certainconditions, usually including strict monitoring by the authorities of the importing country and sometimes regular

reporting of export prices and verication procedures.

A company willing to offer a price undertaking should contact the investigating authorities.

Price undertakings:an altnativ solution?

Dumping, subsidy, safeguards: the basic principles

calculated on another parameterthan the value, such as weight, e.g.15$ per ton. Price undertakingsare also possible (see below). Theduties are paid by the importer inthe country having imposed the

measures and collected by thenational customs authorities.

Exporters that have dulycooperated with the investigatingauthority should be attributeda duty rate that reects theirown situation. Non-cooperatingexporters will be subject to aresidual duty that is normallyhigher than that attributed tocooperating parties. It is thereforein the interest of exporters to

cooperate.

Duties may be equivalent to thelevel of the dumping margincalculated, or the amount of thesubsidy found. Certain countriesalso provide for the possibility tolimit the level of the duty to the

minimum level necessary to offsetinjury. This methodology is calledthe lesser duty rule. The levelof a measure may however neverexceed the dumping margin or thetotal amount of the subsidy.

SAFEGUARD measures can beimposed for a period of 4 yearswith the possibility to extend themto up to a maximum of 8 years intotal (see Chapter VII). In the vastmajority of the cases measures

WHAT ID OF MEASURES CA BE IMPOSED?

are however imposed for a periodof three years. These measuresmay be imposed as a result of asignicant increase of importsand can take the form of dutiesor a volume limitation. Volume

restrictions can be either a quotaor a tariff quota. With a quota,imports beyond a specic volumeof imports are not possible, whilewith a tariff quota imports beyondthis limit are still possible but theyare subject to an additional duty.Provisional safeguard measuresmay be imposed at the same timeas the initiation of the investigation.These provisional measures canonly take the form of a duty.

Each country using trade

defence instruments has aspecic law setting out the detailsand conditions to apply measuresin its domestic legislation.

For WTO members, these lawsshould as a minimum complywith WTO requirements.National legislation may howevergo beyond WTO provisions, i.e. seta bar higher for applying measuresthan that foreseen at WTO level.WTO members have the obligation

to notify their domestic laws (and

WHAT IS THE EGA FRAMEWOR?

any modication made to them)

to the relevant WTO authorities.These laws can be obtainedthrough the on-line WTO web sitesearch engine (see annex).

The relevant WTO legislation isthe Agreement on implementationof Article VI of the General

Agreement on Tariffs and Trade1994 (the WTO Anti-dumpingagreement), the Agreement onsubsidies and countervailingmeasures, and the Agreement

on safeguards.

Non-WTO members are not

obliged to comply with WTOstandards. However, normally theirnational law is inspired by WTOprinciples and often there are nomajor differences.

In addition, specic provisionson the use of Trade DefenceInstruments may be includedin bilateral agreements signedbetween the EU and the countrytaking or envisaging to take action.These bilateral obligations should

also be fullled.

A summary of the main char-

acteristics of the domestic

legislation of the more fre-

quent user-countries can be

found on the internet site of

the European Commission

(see annex). The full text of

the domestic legislation of

each WTO member can be

found on the WTO internet

site (see annex).


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O WHATGROUDS IS

A IES-TIGATIOIITIATED?

Trade defence investigationsare initiated either following acomplaint by an industry or onthe initiative of an investigatingauthority. Depending on theinstrument, an investigation can

be initiated when there is evidenceof (i) dumping, subsidisation ora signicant increase of imports,(ii) injury to a domestic industryand (iii) a causal link betweenthe injury and the importsconcerned. In the vast majorityof cases the investigation isbased on a complaint lodged byone or more domestic producers.Please note that, by law, thecomplainants must represent amajor proportion of the domestic

production. Each interested partyhas the right to obtain a 'publicversion' of this complaint (i.e. aversion from which all condentialdata has been removed).See also Chapter III.2.

WHY A I-ESTIGATIO?

Once the authorities haveanalysed the complaint and aresatised that there is sufcientevidence, they will decide toinitiate an investigation. Thepurpose of the investigation isto gather information, to verifywhether the legal conditions toimpose measures are fullledand to establish the level of themeasures. Not all investigationsnecessarily result in measures.

The investigation may indeedshow that measures are not

justied.

A country initiating an investigation has to publish a notice, the so-callednotice of initiation, in its national ofcial journal. It also has to informthe authorities of the countries concerned by the investigation. Normallyall exporting producers known to the investigating authorities are alsoinformed directly.

Each time the European Commission is made aware of the initiation of aninvestigation, it immediately informs the representatives of the MemberStates, asking them to forward the information to the parties concerned.The European Commission also tries to contact the EU associationsrepresenting the industry producing the product under investigation inorder to alert them, give them the relevant information and ask them tocontact their members. The European Commission also advertises theongoing investigations via its website.

Exporting producers are thus either directly informed by the investigatingauthorities or are made aware of an investigation by their Member Stateor the relevant EU association. In many cases producers will also have

heard about an initiation through their usual professional contacts, e.g.their customers, as such information is normally spread quickly.

SHOUD I PARTICIPATE I THEIESTIGATIO?

In order to achieve the best possible outcome it is recommended tocooperate with the investigating authorities and submit the requestedinformation. In an anti-dumping or anti-subsidy investigation the

companies that fully co-operate will be attributed an individualduty reecting their situation which will normally be lower than theduty for those companies that did not cooperate. Please refer toChapter Vfor more details.

What should I do when I aminformed of an investigation?

If you want to preserve your rightsin the investigation you shouldimmediately register as an interestedparty by contacting the investigatingauthorities.

HOW AM I IFORMED OF AIESTIGATIO?

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Theinvestigation


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ImpsIIn f dfInIIv msus

An investigation may be concluded with the imposition of denitive measures. Investigating

authorities are obliged to disclose the nal ndings and, according to WTO rules, provide the

possibility for interested parties to comment before the imposition of denitive measures.

Investigations shall, except in special circumstances, be concluded within one year,

and may in no case take longer than 18 months.

ddIIn InfmIn/vIsI

During the course of the investigation, the authorities may ask for additional information

and/or schedule a verication visit at the exporters' premises. Note that the verication

visit may take place before or after imposition of provisional measures.

ImpsIIn f pvIsIn msus

Provisional measures may be imposed as from 60 days from the date of initiation of the

investigation. Usually however it takes more time. Provisional measures are not imposed

in all cases.

gIsIn f ffd pdus

Exporting producers affected by the investigation need to register with the investigating

authority and ask for a questionnaire. Short deadlines need to be respected: normally

between 15 to 21 days for registration as an interested party and between 30 and 45

days to return the completed questionnaire.

WHO SHOUD ICOTACT?

Should your company be concernedby an investigation or have spe-cic questions, you are advisedto contact your national and/orEuropean Association who is usu-ally informed and is familiar with suchproceedings. You can also contact yourNational Administration to get appro-priate advice and assessment of theproceedings.

In order to receive all the relevant infor-

mation (such as the notice of initiation,questionnaires) and not to miss anydeadlines, please contact directly theinvestigating authorities concerned. Itis important to "make yourself known"to these authorities and register as aninterested party within the frameworkof the investigation. This is often a pre-requisite to be able to exercise yourrights of defence.

Furthermore, the EuropeanCommission actively monitors trade

defence actions taken by non-EUcountries. Even though the EuropeanCommission cannot legally representthe EU producers in such investiga-tions, it has accumulated technicalknowledge and a lot of experienceregarding the use of trade defence in-struments by third countries. A team ofexperienced case handlers is availableto provide your company with technicalassistance and advice. The contactdetails of the European Commissionare given at the annex.

WHAT ARE THE MAI STEPS OF AIESTIGATIO?

InIIIn f n InvsIgIn

The authorities of a non-EU country initiate an investigation via a publication in the national

ofcial journal. That publication typically also species all relevant deadlines. Inparallel, the authorities inform the exporters concerned directly, and/or the relevant

embassies, commercial ofces and the EU Delegations.

1. Anti-dumpin and anti-subsidy investiations

The following gives a general idea of the main steps of a typical investigation. There may be differencesdepending on the countries please refer to the annex for the websites of the most important user-countries.

The investigation


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The main steps identied above also apply to safeguard investigations:initiation through a publication in the domestic ofcial journal, need toregister as an interested party, questionnaires, publication of the resultsin order to allow parties to make comments and imposit ion of measures.

Certain aspects of safeguard proceedings however differ from anti-dumping and anti-subsidy proceedings, because safeguards are anemergency action and the same duty is imposed on all imports irrespective

of their country of origin. The main differences are the following:

1) Provisional measures may be imposed simultaneously with theinitiation of the investigation. Therefore, exporters may suddenly,without warning, be confronted with a safeguard duty.

2) Although cooperation of individual companies is also important insafeguard proceedings, it does not have the same impact as in anti-dumping and anti-subsidy investigations, since no individual dutiesare calculated. The same duty applies to imports from all sourcesequally. Investigating authorit ies may however choose a form of dutywhich addresses more specically the cause of the problems whilenot unduly penalising imports that are not injuring the domesticindustry. For instance a measure could be imposed only below a

2. What are the particuarities concernin saeuard investiations?

certain minimum import price. Exporters may thus have a clearinterest to cooperate in order to ensure that their views and commentsare taken into consideration. In the absence of cooperation, partiesmay indeed loose the right to defend their interests (e.g. to makesubmissions and to participate in hearings).

Companies subject to a safeguard investigation should thereforeimmediately contact the European Commission and/or the administration

of their Member State to develop a defense strategy, in order not tobe unduly punished. In many cases, European exporters are not thecause of any injury because their exports are typically made in higherprice segments.


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Therightsandobligationsofexporters

In order to be considered as aninterested party and to ensure

the above rights of defence a

company should make itself known

to the investigating authorities andregister in accordance with the

procedures and within the deadlinesdescribed in the notice of initiation.

Usually a simple letter is sufcient,

but certain jurisdictions also request

more substantial informationalready at this stage.

TTeTIO: rgist!

1. iht to submit inormation

Exporters have the right to submit relevant information in writing. This information must be taken into accountby the investigating authorities to the extent it is relevant and provided in accordance with the procedures,including deadlines, required by the authorities.

Parties have the possibility to submit two types of information: (i) information that will be used in order tocalculate the level of the duty for your company (for anti-dumping and anti-subsidy), i.e. normally in theform of a questionnaire reply, and/or (ii) general comments of a legal or factual nature, i.e. in the form of awritten submission.

WHAT ARE MY RIGHTS?

Trade deence investigations are quasi-

judicial procedures during which all

interested parties have specifc rights

(rights o deence) but also obligations.

Interested parties consist of all economicoperators which are directly or indirectly

potentially aected by any measures.

This mainly concerns exporter(s) in the

country(ies) targeted by the investigation

as well as the domestic producer(s) in the

country having initiated the investigation.

In practice, in order to make sure that

these parties are able to exercise

their rights, they have to ulfl certain

obligations.

These rights and obligations areconerred by the legislation o the

country having initiated the investigation.

This should be in compliance with WTO

legislation (i that country is a WTO

member) and the provisions o any

existing bilateral agreement between

that country and the EU.

The rights and obligations of exporters


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13 Guide for EU exporters 13

What is thepurpose of a

questionnaire?

The main purpose of aquestionnaire reply is to obtaina duty rate corresponding to thesituation of your company. Forexample, in an anti-dumpingproceeding, detailed informationon export prices as well as priceson the domestic market and thecorresponding cost of productionis requested. To the extent that thereply is considered adequate andthe information has been veried

by the investigating authorities this information will be used tocalculate the dumping margin.

While individual duty rates arepossible in anti-dumping andanti-subsidy proceedings, insfegurs only one measureis determined and applied to allexports, irrespective of theircountry of origin and whetheror not a questionnaire replywas submitted. Questionnaire

replies in safeguard cases maynevertheless be important inorder to pave the way for a typeof measure that impacts less onyour exporting interests, e.g. in theform of a minimum price.

Why should I reply

to a questionnaire?

Replying to the questionnaire

is not an obligation. Howeverin the absence of a reply, noindividual duty rate will normallybe calculated, and measureswould normally be higher thanthe duties obtained by the co-operating parties (there can beno reward for non-cooperation).

Replying to a questionnaire alsoentails important obligations(see box on the top of the page),and it is often advisable to hire

legal counsel in order to ensurethat co-operation is adequate.Even with full co-operationin an investigation, a specicoutcome, corresponding to yourexpectations is not guaranteed.

Even though it is advisable to co-operate, this remains an economicdecision and should be based ona cost benet analysis.

How do I have

to reply to aquestionnaire?

Should you decide to reply tothe questionnaire, you need tomake sure to fully cooperate (allquestions need to be answered)and to full all the requirementsimposed by the investigating

authorities. Partial cooperation(i.e. only replying to certain partsof the questionnaire) may beconsidered as non-cooperation.In this case the calculation ofthe duties will not be based onyour own data but on best factsavailable. Consequently, the levelof the duty may be higher thanexpected. For more information onobligations relating to cooperation,please refer to Chapter V.

How can Iensure that my

condential data isprotected?

Replying to a questionnairemeans that you will have tosubmit sensitive company specicinformation, such as detaileddata on prices (for each exporttransaction), costs, or names ofcustomers.

Even though you may considerthat this information is highlysensitive as it may concernbusiness secrets, it is keyinformation to the investigationand should thus neverthelessbe submitted to the investigatingauthorities. The authorities havehowever the legal obligation toensure protection of condentialdata, and cannot share these datawith any other parties.

Therefore, any sensitive data canbe submitted on a condentialbasis, and should then be clearlymarked as condential. In this

How do I did tooopat?

In order to decide

whether or not to

cooperate, exporters

have to compare

the costs/benets

of cooperation with

the consequences of

non-cooperation. on-

cooperation may entail

the need to abandon

the exporting market in

question.

Plas to chapt V

case, you will have to also providea non-condential summary of thisinformation. This non-condentialsummary will be available forexamination by all interested party,in order to ensure transparency andallow those interested parties toadequately exercise their rights

of defence. A summary could forexample consist of an indexationof gures. Note that if certaininformation cannot be subject toa summarisation or indexation,e.g. customer names, this shouldnevertheless be given to theinvestigating authority (markedcondential), but will not accessibleto other parties.

Note that the USA, Canadaand Mexico grant the legal

representatives of interestedparties' access to all condentialinformation submitted. However,the legal representatives are notentitled to share this informationwith their clients.

fo spi qustions on ths issus w

advis you to gt lgal assistan o ontat

th euopan commission svis and th

administation o you mb tat who an

giv you som guidan (s ontat dtails atth nd o th guid).

What informationother than a

questionnaire reply

can I submit?

In addition to the questionnaires,interested parties may wish tosubmit comments of a moregeneral nature, or raise specicissues other than those relatedto the determination of the duty.This might for example concernlegal arguments (i.e. showing thatlegal requirements are not met),specic information concerning

the product denition, the situa-tion of the domestic industry, thedomestic market and/or any otherinformation relevant in the contextof the investigation.

Such comments can be submit-ted in writing, in the format andwithin the deadlines specied inthe notice of initiation, and in co-ordination with EU industry associ-ations, the National Administrationand the European Commission, in

order to ensure coherence.

The investigating authorities havethe obligation to analyse all theinformation they receive, includingthese written submissions and,provided that it is relevant and dulysubstantiated, they have to takethis into account for the establish-ment of the ndings.


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14

a) Information at initiation stage

The initiation of an investigation is almost always based on a complaint(request) made by the domestic industry of a third country. As soon asan investigation has been initiated, the investigating authorities of thatcountry are obliged to make this complaint available to interested parties.This document should contain evidence on (i) dumping/subsidisationor increased imports, (ii) information on the situation of the domestic

industry and (iii) evidence showing that imports have had a negativeimpact on the domestic industry.

If you are concerned by an investigation, you have the right to obtaina "public version" of the complaint. This version is a non-condentialversion of the request made by the domestic industry, i.e. all data ofcondential nature have been removed and replaced by a non-condentialsummary. This summary must provide sufcient detail to permit areasonable understanding of the substance of the information submit tedin condence.

b) Information when ndings areestablished

The ndings of an investigation should be communicated to the interestedparties. If you are an interested party, you should also request and receivethe following information: essential ndings regarding dumping/subsidyor increased imports (for safeguards), the situation of the domesticindustry (injury) and how the domestic industry was affected by imports(causality). In addition, all cooperating exporters should receive a detailedexplanation on how their duty was calculated (only for anti-dumping/anti-subsidy proceedings since no individual duty is established in safeguards).

When do I receive information concerning

the essential ndings?

The results of an investigation have to be disclosed before the naldetermination, and allow for sufcient time to comment. Provisionalndings may be disclosed at the same time as the imposition of theprovisional measures or directly thereafter.

2. iht to access inormation and to comment thereon

Investigating authorities are obliged to provide information to interested parties a) when an investigation is initiated and b) when ndings are

established. In addition, ) access to the non-condential information submitted by other interested parties must also be granted.

What should I do if I did not receive any

information?

If no information or only partial information is disclosed, interested partiesshould contact the investigating authorities as soon as possible, becauseusually the time to react is rather short (see below). The EuropeanCommission can assist you if you consider that you did not receivesufcient information.

How can I use the information I havereceived?

The results of an investigation are disclosed in order to allow interestedparties to comment on the ndings. You should be aware of the fact thatcomments can be made only during a limited period (specied either in thenotice of initiation or in the "disclosure" document itself). You should thusensure that you react within the deadlines specied by the investigators.

You have the right to make any comment regarding the ndings, including

on the calculation of the duty that has been attributed to your company(if any) as well as on the establishment of injury and causality. All otherissues, such as product denition, can also be raised at that stage. Youmay indeed have an interest to ask for exclusion of (some of ) the productsyou export. This is however subject to legal considerations.

Some countries also carry out a so-called public interest test, i.e. theyexamine whether imposing measures would be against the interest ofthe domestic economy overall. This can also be commented on.

Here again the European Commission and your National Administrat ioncan assist you as this is a crucial stage of the investigation.



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Access to non-condential

les (the most frequentcase)

All interested parties are entitled to haveaccess to the "non-condential" versionof all information submitted by every otherparty during the course of an investigation.

All condential data has been removed andreplaced by a meaningful summary. Parties mayrequest to consult these les at the premises ofthe investigating authorities. Normally, there isa possibility to make copies.

Note that in some countries access to les isreserved to local lawyers and therefore it maybe necessary to hire a legal counsel.

Some countries provide online access for registeredinterested parties, e.g. Australia and Canada.

Access to condential les

Some countries (currently USA, Canada,Mexico) give access to ALL documents(including condential information) submittedby interested parties. This r ight is however onlyconferred to lawyers, with the strict obligationnot to disclose any condential data to theirclients.

Automatic receiptof information

A minority of countries requires that each timea party submits information, it automaticallysends a non-condential version to all otherinterested parties (based on a so-called servicelist). This is for example the case in Ukraine.

c) Access to information submitted

All interested parties have the right to access the information that other parties have submitted

within the framework of the investigation. Depending on the practice of the country having initiatedthe investigation, this can take different forms:

3. iht to be heard

Parties also have the opportunity to make their views known orally during a hearing. Hearings can either be requested by the parties or will takeplace upon invitation of the investigating authorities. In the latter case, the hearing will take the form of a public hearing, i.e. all interested partiesare invited to attend the same hearing and exchange views or debate positions. Hearings take place in the country having initiated the investigation.

Details concerning hearings are normally specied in the notice of initiation. Should you be interested in presenting your views orally, you shouldfollow the procedures explained in the notice of initiation of the investigation. It is advisable to also submit a written submission of the comments

made orally during the hearing in the form of a so-called post hearing submission. Similarly to written submission, interventions during hearingsshould ideally also be co-ordinated with the EU industry association, the European Commission and the National Administrations.

How can I use this

information?

The information contained in the les maybe interesting in order to see the argumentsraised by other parties. These arguments canbe rebutted by ling a submission or requestinga hearing to make your views known. Exporters

will typically concentrate on the submissionsmade by the domestic industry, i.e. theircompetitors, in the importing country.


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16

WHAT ARE MY OBIGATIOS?

In order to participate in an investigation and to keep adequate rights

of defence, parties should comply with a number of obligations. Theseobligations are normally clearly explained in the notice of initiation andconsist mainly of meeting deadlines and cooperating adequately.

1. eisterThe rst step in order to cooperate in an investigation is to register asan interested party, according to the procedure and within the deadlinesspecied in the notice of initiation.

2. Meet the deadinesInvestigations are limited in time and therefore subject to very strictdeadlines. Failure to meet these deadlines may be considered as afailure to cooperate, which can have important negative consequences.It is thus important to be aware of these deadlines and to respect them.Deadlines are normally clearly set out in the notice of initiation and/orofcially communicated by the relevant investigating authorities to allregistered interested parties.

Extensions can be requested directly from the investigating authorities.To the extent that the request is reasonable and duly justied, extensionsare often granted. There is however no guarantee. Documents shouldtherefore ideally be submitted within the deadlines.

The main deadlines are for:

reistration as an interested party,

repyin to the questionnaire (and deciency etters),

submittin comments (ater initiation or imposition o

provisiona measures),

requestin participation in a pubic hearin.

Comments and the

questionnaire replies

must normally be

submitted in the

ofcial language of the

investigating country.Therefore, the time

necessary to have

all the documents

translated before

sending them out

needs to be taken into

account. Wath th

dadlins!

Languago th

podings

What can I do after

deadlines havepassed?

Investigating authorities maydisregard any informationsubmitted beyond the deadlines.Should you have difficultiesin meeting deadlines, you areadvised to immediately ask foran extension. Should you notreceive any extension or notbe in a position to submit the

information on time, it is advised tonevertheless submit information,even late, accompanied bya justification for the latesubmission. This goes howeverwithout any guarantee that it willbe accepted by the authorities.

In the worst case scenario, yourcomments of a general natureon the substance of the casecould still be communicatedto the European Commission,

your national authorities or thenational/EU industry association,to be used in their submissions,provided they are registered as aninterested party.

3. Adequatey cooperateIn order to adequately cooperate, you must ll in a questionnaire. Yourreply to the questionnaire will constitute the body of information on thebasis of which ndings will be made with regard to your company (foranti-dumping and anti-subsidy proceedings). Replying to a questionnaireis not always an easy task, as it requires providing detailed information,in a specic format that is not always standard for companies. Theinformation requested will normally include a full record of domestic andexport transactions for a twelve months period and complete informationon costs of production for each type of the product concerned.

You should also be aware that the non-submission of all relevant

information or the submission of incomplete, false or misleadinginformation, within the specied time limits can have unfavourableconsequences for your company. For example, in anti-dumpingcases, supplying evidence on domestic prices without the correspondingcost of production has little chance to be accepted, because the saidprices can only be used if proven to be protable, i.e. above their cost

of production. In circumstances where partial data is submitted, theinvestigating authorities may decide to (at least partly) disregard thereply to a questionnaire and establish ndings on the basis of any otherfacts available.

It is crucial to take the time to carefully read the instructions beforestarting to ll in the questionnaire. You should not hesitate tocontact the investigating authorities with any questions you mayhave regarding your responses to the questions or any difcultiesin completing the questionnaire.

Companies may receive so-called deciency letters following thesubmission of their questionnaire response. A reply to this letter shouldalso be given within the specied deadlines, otherwise it may beconsidered that you did not cooperate. Investigating authorities maycarry out on-the-spot visits to examine the records of your companyand to verify the information provided in the questionnaire.



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Should I accept them?

It is recommended to accept the on-spot visitsbecause otherwise a company may be treatedas a non-co-operator despite the fact that ithas fully lled-in the requested information inthe questionnaire.

What information should Isubmit?

The verication of the gures reported in thequestionnaire reply will largely be based on the

company's accounts, ledgers and accountingdocuments (invoices, shipping documents).Therefore, no new information should normallybe submitted during a verication visit, but onlysupporting evidence.

ERIFICATIO ISITS: SHOUD I ACCEPT THEM?WHAT IS EXPECTED FROM ME?

Any questionnaire reply is susceptible to be veried by the investigating authorities. The objective of the visit is to verify the completeness andcorrectness of information and data submitted in the questionnaire reply.

Verication visits usually last around 2 to 3 days, or more depending on the investigating country, e.g. more than a week for US cases. Dependingon the country, verication visits may take place either before or after the imposition of provisional measures. Not all countries carry out vericationvisits. Note that in safeguard cases verication visits are rather exceptional.

Any condential information

collected during the verication

visit should also be considered

as such by the investigating

authorities. It should be clearly

marked condential. Should you

have any doubt, please do not

hesitate to contact the European

Commission for further advice.

condntiality

A thorough preparation is necessary for an on-

spot visit and it should normally be organisedby the exporters legal representative, if any.The relevant personnel (in particular staff whohas prepared the questionnaire reply) shouldbe available and should be prepared to answer

questions from the investigators. Sales andaccounting personnel (both domestic andexport) should also be involved.

Essentially, all documents and computerrecords which served as the basis for thereply to the questionnaire should be preparedin advance and be available for inspection. Aphotocopying machine should also be available,as investigators invariably require copies ofmost back-up documents.

In important or controversial cases, theEuropean Commission and the Member Statesadministrations are prepared to assist exportersduring these on-spot verications thoughstrictly in the role of an observer. Moreover,exporters concerned, are welcome to cometo Brussels and receive advice and technicalassistance from the European Commission.

Should my related companies also replyto the questionnaire?

Investigating authorities may require that related companies involvedin the production and sales of the product concerned also reply to thequestionnaire and/or that a consolidated reply is provided by the group.In particular, related importers in the third country will be requested toreply. Note that the notion of relationship is not necessarily limited to acontrolling interest. In case of doubt whether a related party should alsoreply, immediately contact the authorities in order to clarify this aspect.

An exception: Sampling

If the number of exporters is very large, the investigating authoritiesmay decide to limit their ndings to a reasonable (reduced) number ofcompanies. In order to do so, a sample of companies will be chosenand only the exporters selected in the sample will have to reply to thequestionnaire. It is however crucial that your company accepts to bepart of the investigation and lls in a so-called sampling questionnaire (amuch shorter questionnaire than the questionnaire used for the actualinvestigation), on which basis the investigating authorities will make theirsample selection. The average ndings for companies included in the

sample will then be applied to companies willing to cooperate, but werenot part of the sample.

Should I reply to a questionnaire in a

safeguard case?

Although no individual duties are established in a safeguard case, it maynevertheless be important to reply to a questionnaire in order to submitpertinent data or information to the investigating authorities. In theabsence of any questionnaire reply, the investigating authorities may alsodraw the (wrong) conclusion that exporters have no interest in the case.

Because no detailed calculation is made, questionnaires in safeguardinvestigations tend to be easier to ll in than anti-dumping or anti-subsidyquestionnaires.

Therefore, it is also strongly recommended to reply to a questionnairein a safeguard investigation. Some countries do however not requestexporters to reply to a questionnaire in safeguard investigations. Insuch cases you may nevertheless submit a document outlining yourviews and comments.


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18

ha

pter4

Am

Iconcerne

dbyaprocedurea

ndifsotowhatex

tent?

An exporter is theoretically concerned by a trade deence procedure i he exports

the product covered by the investigation to the investigating country. This product

should be clearly defned in the notice o initiation published by the investigating

authorities in the local ofcial journal and/or on their website.

You may nevertheless have doubts as to whether you are really concerned.

I am not exporting

at dumped pricesand/or did not

receive any

subsidy?

It is important to demonstrateto the investigating authoritiesthat your exports are neitherdumped nor subsidized. For thispurpose you must cooperate withthe investigating authorities and

reply to the questionnaire. Pleasebe aware that unsubstantiatedallegations (like 'I am notdumping' or 'my products arenot subsidized') are not enough.

I dont exportthe product

concerned?

If you do not export the product

concerned then you do not need toworry. If however, you have doubtsabout the product denition andyou nd that the terms usedin the ofcial notications areunclear or contradictory, thenyou should immediately contact

the investigating authorities andask for clarication in writing.

The European Commissioncan also provide advice on theinterpretation and on the stepsto take.

I did not get any

notication?This does not mean that you arenot concerned by the procedure.Indeed, only exporters known tothe investigating authorities are

notied directly. If you are notsure about what is happeningand you have heard rumours,you can check the list of on-goinginvestigations on the website of theEuropean Commission and of thethird country. You can also contactyour association of reference atMember State or European leveland ask if they are already involvedin the procedure. Please be awarethat deadlines must be respected(see Chapter II).

I also produce in

the investigatingcountry?The fact that an EU producer hasproduction in the third country thathas opened the procedure is notrelevant. What matters is if theindustry exports from the EU tothat country.

I export from a

third country?The determining factor in tradedefence investigations, and inparticular in anti-dumping andanti-subsidy proceedings, is thecountry of origin of the goods.Therefore, if your company alsoproduces in another non EU-country, these exports would notbe targeted by any measures,if the case only concerns theEU (and not this third country).

Obviously the situation is differentin a safeguard case because anymeasures would be imposedagainst all countries of origin.

AM I EERTHEESS IOED IF

Am I concerned by a procedure and if so to what extent?


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ha

pter5

HowdoIdecidetocooperate?

The obligation to hire a local legal adviser only applies to certain countries (e.g. China

or certain atin American countries). However, given the complexity of the proceedings,

and also the specicities of the domestic legislation and culture, it is recommended to

take a local lawyer in any event. He/she would speak the language of the proceedingand can have direct contacts with the investigating authority and the other interested

parties involved. In many cases, local legal representation is however not an obligation

and companies can defend themselves without any legal assistance.

o I hav totak a lawy?

When fully cooperating in an investigation, theoutcome should normally reect the company's ownsituation. If the legal conditions are met and measuresare imposed, an individual duty for each cooperatingexporter corresponding to the information provided willbe calculated. This could mean either no duty (e.g. ifyour export price is non-dumped or non-subsidized)or at least a lower duty than that attributed to nonco-operators. Therefore, the company should be in aposition to maintain a reasonable access to the exportmarket, and perhaps be even better off than certaincompetitors (if targeted by the same proceeding andbeing attributed a higher duty rate).

coopation dos howv not always manthat you will gt th duty you had xptd asth invstigating authoitis may not aptall you laims.

WHAT ARE THE 'COSTS'OF COOPERATIO?

Cooperating in an investigation represents asignicant investment in terms of time, nancial andhuman resources. Replying to the questionnaire isindeed a complex and time consuming exercise forwhich detailed company specic data are requested,such as data on domestic and export sales prices

(usually for all transactions during a period of oneyear), cost of production, name of customers oremployment. The questionnaire reply may also besubject to a verication visit by the investigatingauthorities. Companies usually confer these tasksto the competent staff members or to an external

accountant who is coordinating the compilation ofthe reply. In addition, the possible need for translationis an important element to be taken into account,since many authorities require the documents tobe led in their own language (e.g. Chinese, etc.).Moreover, because investigations are complex, quasi-judicial procedures, i t is recommended to hire a legalrepresentative. Moreover, be aware that in somecountries it is compulsory to be represented by a legaladviser during the whole investigation.

WHAT ARE THECOSEUECES OFO COOPERATIO?

In case of non-cooperation, the investigatingauthorities will base their ndings on 'best factsavailable' on the record. This normally resultsin a higher duty rate than in case of cooperation.Depending on the level of the duty, this can meanthat the export market is no longer attractive.Furthermore, by not completing the questionnairereply an interested party partly renounces its rightsof defence.

Deciding to cooperate in an anti-dumping or an anti-subsidy investigation is an

economic choice or which each exporter should make a cost-beneft analysis.

WHAT ARE THE'BEEFITS' OFCOOPERATIO?


22/32

20 How do I decide to cooperate?

Cooperating in a trade defence investigation has certain clearadvantages because it increases the chances of a more positiveoutcome. It is however time-consuming, can be expensive and does not

always lead to the expected results. The decision to cooperate pertainssolely to the company targeted, and the main considerations are theeconomic and/or strategic interests in the market concerned.

Even if no individual duties are established in a safeguard case, co-

operating signals your interest in the proceeding and allows youto exercise your rights of defence such as access to informationor the possibility to comment). Questionnaires are also less complex

than in anti-dumping and anti-subsidy proceedings and less often

subject to verication visits. Cooperation is thus less burdensome, soit is recommended to reply to questionnaires and to participate in theinvestigation.

What are likely coeqece o co-oeratio /o-cooeratio?

I I cooperate: reduced duty, legal ees, time and resources

I I do not cooperate: higher duties, market access?

What wol orally be y ow ty rate?

(Am I dumping or do I receive a fnancial contribution and to what extent?)

How ch i at take?

(How much do I export, is it important or my business?)

HOW DO I DECIDE TO COOPERATE?

DO I EED TO COOPERATE I A SAFEGUARD CASE?


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ha

pter6

Whatisthero

leoftheotherva

riousparties?

Generally speaking, the European Commissionmonitors investigations carried out by third countryauthorities in order to ensure that the relevantWTO rules as well as bilateral obligations in TDIproceedings are respected. In particular, the EuropeanCommission's role is to provide general informationand assistance to exporters, but also to intervene atappropriate levels.

The role and the involvement of the EuropeanCommission also depend on the type of investigationand the level of cooperation by the industry concerned:

With regard to anti-dumping proceedings, adistinction has to be made between the dumpingcalculations and the other aspects of the case.Dumping calculations are based on company-specic data that can only be submitted by thecompany concerned. Therefore, the EuropeanCommission's interventions in this respect arerelatively limited. The European Commissionhowever supports exporters to the extent thatdumping issues are clearly in violation of the WTOanti-dumping agreement. In any event, issuessuch as product scope, injury and causality are

subject to the European Commission's scrutinyand interventions.

With regard to anti-subsidy proceedings, theEuropean Commission's interventions depend onwhether the subsidy programmes are implementedby individual Member States or also involve EUexpenditure. In the former case, the European

Commission may assist the Member States'authorities in rebutting the subsidy allegations.In the latter case, the European Commissionbecomes itself a party in the proceeding since it isthe authority in charge of the administration of therelevant EU programmes and/or disbursements. Inaddition, and similarly to anti-dumping proceedings,the European Commission intervenes as appropriateregarding injury and causality issues.

In safeguard proceedings, given that any measurewould equally affect all exporters, the European

Commission has a natural role of co-ordination. Itensures that the interests of all parties are properlyrepresented, without any contradictions. In addition,also in safeguard cases the European Commissionchecks the WTO compliance of the application andintervenes as appropriate concerning issues suchas injury and the causal link between imports andthe economic situation of the domestic industry.

The successful defence in third country TDI actionsdepends very much on the input given by the exportersconcerned. Indeed, only exporters have the datanecessary to establish whether their export prices

are dumped and/or whether they receive subsidies.Therefore, the assistance by the EuropeanCommission depends a lot on the level ofinterest and efforts shown by the exporters inan investigation. If they themselves do not cooperateby replying to the questionnaire, the efforts by theEuropean Commission are much less effective.

How can theEuropeanCommissionhelp?

The European Commission is

in charge of monitoring TDI

proceedings, measures, and

legislation adopted by third

countries. Specifically, theEuropean Commission monitors

that third countries' TDI authorities

fully comply with the WTO rules

when they make use of trade

defence instruments.

WHAT IS THE ROE OF THE EUROPEACOMMISSIO?

As part of its broader competencein the application of the TDIrules, the European Commissioncan help defend the interestsof EU exporters. It has a deepknowledge of trade defenceinstruments and has gained a solidexperience concerning the use ofthe instruments by third countries.

A team of highly specialised casehandlers is working on theseissues on a daily basis andthey are available to assist yourbusiness.

In practice, the EuropeanCommission undertakes thefollowing actions:

When an investigation isinitiated, the European

Commission informs Member

States and known relevant EUassociations. At that stage, the

European Commission usually

also registers as an interestedparty in order to obtain a copy of

the complaint having led to theinitiation of the investigation and

to ensure adequate follow-up

and interventions;

Meetings are organised with EU

industries in order to exchange

views, identify problems and

dene a common strategy;

Throughout the investigation

the European Commissionmonitors results (provisional and

denitive), intervenes within theframework of the investigations

and reacts in co-ordination

with industries concerned

(and possibly Member States).This is normally done through

written submissions and/or

participation in hearings inorder to highlight weaknesses

that have been identied;

Throughout the proceedings,

the European Commission isready to give further adviceand assistance to companies

and Member States;

The European Commission alsokeeps Member States regularly

informed about the development

of cases and makes general

statistics on TDI publiclyavailable.


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22

he roea

oiio

oe ot relace

lawyer: the maintask of the European

Commission is to

explain the various

options and to provide

assistance to the

EU exporters. It can

help to defend the

industry's interests

and intervenes within

the framework of the

investigation, but it

can in no way act as

a legal representative

in trade defence

proceedings. Due to

the technical nature

of these investigations

and also because of the

many company specic

issues that arise

in an investigation,it is advisable that

exporters hire a lawyer

to assist them.

What is the role of the other various parties?

What otherassistance can

I expect fromthe EuropeanCommission ?The European Commissionprovides exporters with advice andassistance during all the phasesof TDI proceedings. However, itcannot provide all of the servicesan exporter may need during a TDIproceeding. In particular, it cannot

replace a lawyer and the signicanteffort to ll in a questionnairereply remains with the exporters.Exporters will also have to arrangefor translation of ofcial documentsand questionnaires replies at theirown expense. With regard to theverication visits carried out bythe investigating authority at theexporters' premises, the EuropeanCommission provides assistanceand advice to exporters on allthe legal and practical aspects.

If exporters so request, arepresentative of the Commissionmay participate in a verication visitas an observer to check that WTOrules are respected. This would ofcourse depend on the resourcesavailable and the specicities ofthe case.

How can I helpthe European

Commission?The best way to help the EuropeanCommission is to get in contactwith the competent departmentat the earliest possible stage inthe investigation, and to exchangerelevant information throughoutthe proceeding. Therefore, pleasecontact the European Commissioncase handler in charge ofmonitoring the case or send ane-mail to the address mentioned

in the annex. To better defend theexporters' interests, the EuropeanCommission needs to know all theimportant elements concerningnot only the possible existenceof dumping/subsidy, but also theproduct targeted and the marketsituation in both the EU and in thethird country. Any other usefulinformation that serves to clarifythe main issues in the proceedingand in particular the possibleexistence of injury to the local

industry and the causal link withdumping/subsidization is alsoneeded to complete the picture.For this purpose, the EuropeanCommission will typically offer toorganize a meeting in Brusselswith the industry association andthe exporters concerned.

How can Iapproach the

EuropeanCommission?EU exporters and/or their legalcounsel can contact the EuropeanCommission directly by e-mail.When third country authoritiesinitiate a TDI proceeding,the European Commissionimmediately informs all theMember States and the knownindustry associations concerned

about the new proceeding. Italso communicates the nameof the person in charge of themonitoring of that proceeding aswell as their contact information.If for certain reasons the exportersconcerned do not receive thisinformation from their MemberStates' authorities or from theEuropean Commission, they cancontact the relevant section of DGTrade in charge of monitoring thirdcountry cases directly (see contact

information in the annex).

Member State's administrations have an important roleto play in these proceedings, as they are usually the rstpoint of contact for exporters when a TDI proceedingis initiated.

After, the Member State administration has been alertedit will inform the national industry of the decision toinitiate an investigation, normally through the nationalassociations, and it may also give them advice on the

proceeding. Whenever a TDI procedure affects relevantnational interests, the Member State administrationmay also actively participate in the investigation asan interested party, sending its own submissions andreplying, if necessary, to the questionnaires providedby the investigating authorities.

This is especially the case for anti-subsidy investigations,where the Member States' administrations are directlyinvolved throughout the investigation and they are a partyto the proceeding as the authority implementing therelevant subsidy programme(s). In such investigations,the third country investigating authority will typically alsomake an on-spot investigation at the Member State'sadministration premises.

Member States, via their embassies, also directlyintervene within the framework of the investigation(see below), namely in order to show their interest andsupport to their industry. This is done in full co-ordinationwith the European Commission.

WHAT IS THE ROE OF THE ADMIISTRATIO OF

THE MEMBER STATES?


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WHAT IS THE ROE OFEMBASSIES AD THE

EU DEEGATIOS I THEIESTIGATIG COUTRY?

The delegations of the European Union and the embassies of the MemberStates play a key role in these investigations since they represent theformal communication channel between, the European Commission andthe Member States on the one hand, and the local authorities on theother hand. They also have the 'local knowledge' and can give furthervaluable guidance on how to best intervene and at what level.

The embassies of the Member States and the delegations of the European

Union in the investigating country receive the notication of the initiationof a TDI proceeding from the local investigating authorities. The EUdelegations then inform the European Commission case handler (inBrussels) in charge of monitoring the investigation.

Embassies and delegations act respectively on behalf of their governmentsand the European Commission by ling submissions and contactingthe relevant local authorities. They also help in collecting and updatinginformation regarding the local political and market situation, to providethe relevant background and support for the European Commission inthe defence of the EU exporters' interests.

It should go without saying that contacts with Member States' embassies

and EU delegations cannot substitute for close coordination with theEuropean Commission headquarters in Brussels and the National

Administrations who have the technical expertise and know the overallpicture of the proceedings. It must also be ensured that informationobtained from local embassies is also shared with Brussels headquarters.Finally, the embassies of the Member States concerned by a tradedefence investigation will coordinate with the EU delegation in order topool information relevant for the defence of the case and to avoid anycontradictions in the communication with third country investigationauthorities.

WHAT IS THE ROE OF THE EUASSOCIATIO OF WHICH I AM AMEMBER?

EU associations often play a crucial role in third country TDI proceedings asthey coordinate the defence of the exporters' interests who are their members.Their role is all the more important when there are several exporters fromdifferent Member States affected by a new TDI proceeding. Most of the EU(and national) associations already have experience in TDI proceedings andhave had previous contacts with the European Commission. In cases whereassociations are involved, it is best for the exporters to liaise directlywith their association. The association will deal with the EuropeanCommission, will represent them and choose the best strategy toprotect the exporters' interests. The exporters are in any event free tocontact the European Commission directly even when their associations areinvolved, for instance where there are particular interests and/or issues thatcannot be addressed in general by their associations.

WHAT IS THE ROE OF

MY CUSTOMERS I THEIESTIGATIG COUTRY?

The initiation of a new TDI proceeding in a third country oftenimmediately affects the supply of the product under investigation tothe local customers. The affected customers tend to ask EU exportersfor an immediate renegotiation of the sales price to reect the possibleimposition of a duty or they cancel the orders and buy from other sourceswhich will not be hit by the duties. Exporters should not hesitate toexplain to their customers that TDI proceedings take a long time to becompleted and possible duties are only collected a few months later upon

imposition of provisional measures. At the same time expor ters can askfor their customers' support vis--vis the local investigating authority.Customers can show how the imposition of measures may have negativerepercussions in terms of increased costs of their input product, andwill eventually lead to a loss of competitiveness, possible job losses andhigher prices for nal consumers. Note that WTO law provides for theparticipation of importers, industrial users and representative consumerorganisations in these proceedings.

These considerations bear even wider legal relevance in countries thatcarry out the 'public interest' test in their TDI investigations, whichcould eventually prevent the imposition of nal measures. Please referto chapt I for more information on the public interest test.

WHAT IS THE ROE OF MYREATED COMPAIES?

A special situation occurs when a third country TDI investigation doesnot directly target EU exports, but non-EU production facilities ofcompanies with headquarters in the EU. In these situations, the EuropeanCommission cannot be part of the proceeding as the EU is not directlytargeted. Therefore the EU-based company should seek redress with thelocal authorities of the non-EU country targeted by the TDI proceeding.

In these cases the European Commission can still provide assistanceeven though at a different level than if the EU was directly targeted.

As explained in chapt III - rights and obligations - related companiesneed to cooperate in a proceeding. Investigating authorities may requireeither an individual reply for each related company, or a consolidatedquestionnaire reply covering the exporter and all its related companies.


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2424 Measures have been imposed, what are my options?

ha

pter7

Measureshavebeenimposed,w

hataremyoptions

?

Once measures have been imposed, they may still

be modifed or even removed either through a reiew

ietiatio or a leal challee(court proceeding).

REIEW OF MEASURES

I am no longer selling at dumpedprices or do no longer receiveany subsidy. What should I do?Interested parties may ask for a review of the measures during theirperiod of imposition. Exporters who can demonstrate that circumstanceshave changed signicantly since the imposition of the original measuremay request the initiation of a review investigation in order to decrease orremove the duty. The changes have to be of a lasting nature and includechanges regarding dumping or subsidisation, but also changes in thesituation on the domestic market (e.g. injury, production) or the scope orthe form of measures.

Such reviews are normally not possible for fer, becausecontrary to anti-dumping and anti-subsidy, the same measure is appliedto each exporter in all countries and is thus not company specic.

Can measures be prolonged beyondtheir initial period of imposition?Anti-dumping and anti-subsidy measures normally expire automaticallyafter ve years, unless it is determined in an "expiry review" that measuresshould remain in force.

This "expiry review" (or "sunset review") is usually requested by producersin the domestic market and must include evidence that the expiry ofmeasures would be likely to result in a continuation or recurrence ofdumping/ subsidization and injury. It is not excluded, that even if exportshave ceased as a result of measures, it is determined that they could resume

at dumped/subsidised prices and cause injury, if measures were to lapse.

It should be noted that, even if beyond their initial period of application,measures will remain in place during review investigations . Therights and obligations regarding cooperation, verication visits or rightsof defense of the parties, are similar to those in initial investigations,and also apply in review investigations.

Depending on the domestic law, an expiry review can result in eitherthe repeal or continuation of the duties in force at the same level (i.e.similarly to the EU practice), or can result in a change in the level of theduties. If measures are maintained, they will normally remain in forcefor another ve years.

sfegur measures may also be extended beyond their initial periodof imposition if an investigation demonstrates that the measures continueto be necessary to remedy the injury suf fered by the domestic industry,provided that the industry is adjusting to the situation.

I did not exportduring theinvestigationperiod butwant to do

so now,what shouldI do to avoidmeasures?Imports from companies thatcooperated with the investigationare usually liable to their ownindividual duty, but there isalso a "country-wide" duty forimports from all other companiesproducing and exporting theproduct concerned. This so-called"residual duty" is applicable to theexporters that failed to cooperatein the investigation, and isnormally higher than the individualduty applicable to cooperatingexporters. If a company startsexporting the product after theinvestigation period, its goods willbe subject to the "residual" duty.

However, companies that either didnot exist, or did not export to thethird country in question during theoriginal investigation period, canrequest a new exporter reviewto have their own individual dutyrate established. If the investigatingauthorities determine that theexporter appears to meet therelevant criteria, a review will beopened. The review will examinewhether the criteria are met and,if so, establish an individual margin

of dumping or subsidy for thecompany concerned.

This possibility does not apply tofer, since the samemeasure applies to all exporters.


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EGA CHAEGE OFMEASURES

Can I challenge measures in thedomestic court?Exporters affected by denitive measures have the possibility to challengethem in the domestic court of the country having imposed the measuresif it is considered that the national legislation has not been correctly

applied. The procedural aspects may vary from one country to the otherand it is thus strongly recommended - if not even compulsory - to getassistance from a specialised legal adviser. Importers located in thecountry having imposed measures also have the possibility to challengethe measures.

Because a Court procedure is company specic and involves independenttribunals, the role of the European Commission in these proceedingsis very limited. The European Commission cannot appear in front ofthe domestic court of an importing country but it can offer advice toexporters concerned.

Can measures be challenged ininternational fora?Measures can also be challenged in aWTO dispute settlementprocedure if it is considered that the WTO legislation has not beencorrectly applied. This procedure cannot be launched by individual

companies but only by WTO Members. In the case of the EuropeanUnion, the European Commission is the right body to ask for a WTOpanel procedure. It is therefore necessary that exporters get in touchwith the relevant services of DG Trade in order to exchange views onthe possibility to challenge measures at that level. Exporters may alsocontact their National Administration rst for appropriate advice andinformation of the procedure.

WTO procedures are quite heavy and time consuming as it can takeseveral years before having a nal ruling (including appeal of the decision),and an additional number of months for the implementation of theconclusions of the panel. Therefore, the burden and length of a panelproceeding need to be put in perspective with the actual duration and

impact of the measures challenged.


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1. COTACT DETAIS

roea oiio

By ot:DG TRADETrade Defence Unit H5200, rue de la Loi-WetstraatB-1049 Brussels, Belgium

By e-ail:[email protected]

2. USEFU IS(a) roea oiio

DG Trade web site:http://ec.europa.eu/trade

DG Trade web site on trade defence instruments:http://ec.europa.eu/trade/tackling-unfair-trade/trade-defence/

On this web site you can nd the following information Trade defence instruments used against EU exports Statistics on measures in force/on-going investigations against EU exports Summary of domestic legislation of main users against EU exports

(b) meber state

eer TTe eIL WeITe

Austria [email protected] [email protected] http://economie.fgov.beBulgaria [email protected]

Cyprus [email protected]@[email protected]

Czech Republic [email protected] [email protected] www.ebst.dk/antidumping

Estonia [email protected] www.mkm.ee

Finland [email protected]@formin.

France [email protected]

[email protected] [email protected]

Greece [email protected] [email protected] [email protected]

Italy [email protected]@sviluppoeconomico.gov.it

Latvia [email protected] www.em.gov.lv

Lithuania [email protected] [email protected]

[email protected] www.luxembourgforbusiness.lu

Malta [email protected] [email protected]

Poland [email protected] www.mg.gov.pl

Portugal [email protected]

[email protected] www.dgae.Romania [email protected] www.dce.gov.roSlovakia [email protected] www.mhv.skSlovenia [email protected] http://www.mg.gov.si

Spain [email protected] www.comercio.mityc.esSweden [email protected] www.kommers.seUnited Kingdom [email protected]

A

X

Annex26


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() mai dI er aait u exort

county Intnt sit addssArgentina http://www.cnce.gov.ar/

Australia For dumping/subsidies:

http://www.customs.gov.au/site/page4227.asp

For safeguards:

http://www.pc.gov.au

Brazil http://infosecex.desenvolvimento.gov.br

Canada http://www.citt.gc.ca

China For dumping/subsidies:

http://gpj.mofcom.gov.cn

For injury:

http://www.cacs.gov.cn

India For dumping/subsidies:

http://commerce.nic.in/index.asp

For safeguards:

http://dgsafeguards.gov.in

Israel http://www.moital.gov.il

Mexico http://www.economia.gob.mx

Russia http://www.minprom.gov.ru

(only in Russian)

South Africa http://www.dti.gov.za

Turkey http://www.dtm.gov.tr

(Go to Foreign trade / imports)

Ukraine http://www.me.gov.ua

(only in Ukrainian)

USA USDOC:

http://www.trade.gov/ia

USITC:

http://www.usitc.gov

(c) Worl rae raiatio (W)

Generalhttp://www.wto.org

Search engine for Trade defence legislation of main WTO membershttp://docsonline.wto.org

(Go to the simple search menu, select the appropriate document symbol by clicking on "?" and then choose between: Anti-dumping Art 18.5,Subsidies and countervailing measures Article 32.6, Safeguards Article 12.6)


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28 Annex

3. IDEX

Access to information 15, 20

Anti-dumping measure 6

Causality 7, 14, 21

Condentiality 17

Cooperation 11, 13, 19, 20, 21, 24

Cost of production 6, 13, 16, 19

Countervailable 6

Countervailing measure 6, 7

Customer 9, 13,19, 23

Deadlines 10, 12, 13, 14, 16, 18

Dispute settlement 25Domestic market 6, 13, 24

Dumping 4, 6, 7, 8, 9, 13, 14, 18, 20, 21, 22, 24

Dumping margin 6, 8, 13

Duty 6, 8, 9, 11, 13, 14, 19, 20, 23, 23, 24

Embassies 10, 22, 23

EU association 9, 21, 23

EU Delegation 10, 23

European Commission 7, 9, 10, 11, 13, 14, 15,

16, 17, 18, 21, 22, 23, 25

Expiry review 24

Export price 6, 8, 13, 19, 21

Findings 10, 13, 14, 16, 17, 19

Hearing 11, 15, 16, 22

Injury 6, 7, 8, 9, 11, 14, 21, 22, 24

Interested party 9, 10, 11, 12, 14, 16, 19, 21

Investigating authority 8, 9, 10, 13, 18, 19, 22, 23

Investigation 4, 8, 9, 10, 11, 12, 13, 14, 15, 16,

17, 18, 19, 20, 21, 22, 23, 24

Legal assistance 13, 19

Lesser duty rule 8

Member States 9, 21, 22, 23

Non-condential summary 13, 14

Normal value 6

Obligations 7, 12, 13, 16, 21, 23, 24

Price comparability 6Price undertaking 8

Public interest test 7, 14, 23

Questionnaire 10, 11, 12, 13, 16, 17, 18,

19, 20, 21, 22, 23

Related company 23

Rights of defence 10, 12, 13, 16, 19, 20

Safeguards 6, 7, 8, 11, 13, 14, 24

Safeguard measure 6, 8, 24

Sampling 17

Subsidy 4, 6, 7, 8, 9, 10, 11, 13, 14, 16,

17, 18, 19, 20, 21, 22, 24

Translation 19, 22

Verication visit 10, 17, 19, 20, 22, 24

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