The EU 2 anti-dumping (AD) law is laid down in the Regulation (EU) 2016/1036 https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:02016R1036-20200811&from=EN）and its amendments (collectively, the "Basic AD Regulation") and is administered by the European Commission (the "Commission").
An AD proceeding usually starts with a complaint by the EU industry (commonly known as "Union industry") to the Commission.
The complaint must contain prima facie evidence that dumped imports are causing or are threatening to cause material injury to the Union industry. The Union producers supporting the complaint must represent at least 25 per cent of the total production of the product by the Union industry and more than 50 per cent of the total production by those Union producers who express a view on the complaint.
All complaints are treated as confidential by the Commission.
The Commission will reject a complaint when there is insufficient evidence of dumping or injury, or the complainants do not represent a major proportion of the Union industry concerned.
If the Commission decides to initiate a formal investigation, it will make an official announcement by way of a Notice of Initiation in the Official Journal of the European Union ( http://eur-lex.europa.eu/JOIndex.do?ihmlang=en).
According to the Basic AD Regulation, the Commission has to complete its examination of the complaint and decide whether there is evidence to carry out a formal investigation within 45 days.
The Notice of Initiation contains a description of the allegedly dumped product and a list of the economies subject to the investigation. It serves as a notice to all parties concerned.
The Commission will send questionnaires to all known foreign exporters/producers of the allegedly dumped products and to the Union producers, importers and users, except that where there are numerous exporters/producers, the Commission may decide to "sample" only some of them (please refer to the section on Sampling"）in "The EU's Anti-dumping Proceedings - Important Points to Note"). Normally only those exporters and producers whose names and addresses have been identified in the complaint will receive a questionnaire (see section on Questionnaire below). However, exporters/producers not listed in the Notice may still make themselves known to the Commission and request questionnaires. Normally, they must do so within 15 days after the Notice of Initiation.
Exporters/producers who fail to co-operate (and also producers who are unknown to the Commission) will be subject to the "facts available". This usually means the information provided by the complainant for determination of the level of the AD duties applicable to them. All exporters/producers should take note that this would typically be equivalent to the highest AD duty rate resulted in the investigation.
It is therefore in the interests of exporters/producers of the allegedly dumped product who are not identified in a complaint to
The questionnaires for foreign exporters/producers are designed to obtain the information necessary to determine whether dumping has taken place, whether such dumping has caused injury to the Union industry and the appropriate amount of AD duty to be levied, if applicable.
Parties receiving a questionnaire are normally given approximately 37 days to reply. The Commission sometimes will give short extensions of the deadline if good cause is shown by the exporter/producer.
Information supplied in a questionnaire reply will normally be verified by the Commission. It is vital to ensure that all questionnaire replies are accurate and complete. If the Commission finds that the questionnaire responses are inaccurate or incomplete or if the exporter/producer or its Government refuses to allow verification, the Commission usually resorts to "facts available" which generally results in a higher dumping margin.
On-site visits are usually carried out by the Commission officials to verify the information submitted by foreign exporters/producers in the questionnaires. It is therefore extremely important that all the information entered in a questionnaire can be traced back to the original source documents (particularly to the company's normal accounting records and audited financial statements) and that proper records of the paper trail are maintained.
On-site verifications are only carried out if the foreign exporters/producers concerned give their consent to the Commission, and the Government of the economy concerned has been notified by the Commission and it does not raise any objection.
It is in their own interests that foreign exporters/producers concerned should co-operate with an on-site verification request. Objection to such a request would result in the Commission using the "facts available".
Within 14 months from the date of its initiation, an investigation must be concluded.
The proceedings may be terminated without the imposition of AD measures if
If preliminary investigation shows that injurious dumping has taken place, and that provisional duties are in the Union interest, then provisional duties may be imposed. The Commission may begin imposition of provisional duties as early as 60 days but not later than 8 months after the initiation of the investigation. Except where there is evidence of significant distortions in the exporting market for relevant raw materials used in the manufacture of the product concerned and provided it is in the interest of the EU as a whole to do so, provisional duties cannot exceed the provisionally established dumping margin, but they can be set at a lower level if a lesser duty is enough to remove the injury.
Should the Commission decide to impose provisional duties, release of the allegedly dumped products for free circulation in the Union will be conditional upon the provision of a security (usually a bank guarantee) for the amount of the duties.
The amount of AD duties eventually collected would depend on the final outcome of the investigation.
Provisional duties may be imposed for 6 months and extended for a further 3 months.
Upon a provisional affirmative determination of dumping and injury, exporters may offer to place an undertaking with the Commission to increase prices to a level which would remove injury or dumping. The Commission has the discretion whether to accept the undertaking offer. If an undertaking is accepted, the investigation would normally continue and be completed.
If a negative determination of dumping or injury is made eventually, the undertaking would automatically lapse.
If both the dumping and injury determinations are affirmative, the undertaking would continue.
In case of breach or withdrawal of undertakings, the provisional or definitive AD duty would automatically be imposed.
(Please refer to Question 6 The EU's Anti-dumping Proceedings - Frequently Asked Questions (FAQ)")
A definitive AD duty is imposed when the investigation is completed and results in a final determination that the levy of a duty is necessary to alleviate the effects of the injurious dumping, and that the measures are in the Union interest.
Both provisional and definitive duties can be imposed only if the measures are in the Union interest. Evaluation of the Union interest takes into consideration the concerns of all interested parties - the Union industry, importers and users and consumers. The Commission has to give all interested parties an opportunity to express their opinions regarding the imposition of anti-dumping measures.
AD duties are imposed on a non-discriminatory basis on all imports of a product from the economy (or economies) subject to the AD investigation which are found to be dumped and causing injury. An exception is made to imports from those sources from which undertakings (see section on "Undertaking" above) have been accepted.
AD duties can take one of the following forms:
AD duties and undertakings should expire 5 years from the date on which they entered into force, were last modified, or confirmed (see section on "Expiry of Measures" below).
Regulations imposing AD duties and decisions to accept undertakings are subject to review where warranted. A review may be initiated:
If the Commission decides to initiate a review, it will generally employ a more up-to-date investigation period and conduct a new investigation on the basis of which the existing measures may be amended or annulled. The new investigation follows the procedure of the original initiation proceeding, including the sending of questionnaires and the verification of information received.
Newcomers (i.e., foreign exporters/producers who have not exported the product to the EU during the investigation period) can request a review without having to wait until at least 1 year has passed since the conclusion of the investigation. AD duties are not imposed on imports of the newcomer's concerned products while the review is ongoing. However, the imports are subject to "registration". Registration enables the Customs authorities to later go back and levy AD duties retroactively on all imports during the review, if the review results in a determination of dumping regarding the newcomer
Absent action by the Union industry (see section on "Expiry Review" below), AD measures will expire 5 years from the date on which they entered into force, were last modified, or confirmed.
In the final year of the 5-year application period of the AD measures, the Commission would publish a notice of impending expiry of the AD measure concerned in the Official Journal.
If the Union industry should lodge a review request at least 3 months before the end of the 5-year period and submit sufficient evidence to show that expiry of the AD measures would likely result in a continuation or recurrence of dumping and injury, the Commission would initiate an expiry review (also known as sunset review). The AD measures concerned will remain in force pending the outcome of the review.
An anti-dumping measure will remain in force as long as it is necessary to counteract the dumping which is causing injury.
Note:
The questionnaire generally asks for information relating to an "investigation period" which will be a period of not less than six months immediately prior to the initiation of the AD proceeding.
The European Commission (the "Commission") does not use a standard questionnaire for all AD investigations. Instead, a special questionnaire is tailor-made for each case. The information requested normally covers the following areas:
In the past, very specific information was requested in the questionnaire of some AD cases. Such information included:
For those cases involving a large number of complainants, exporters, importers, types of product or transactions, the Commission may limit the investigation to a reasonable number of parties, products or transactions by using samples. The sample should be statistically valid on the basis of information available at the time of the selection, or the largest representative volume of production, sales or exports which can reasonably be investigated within the time available.
Exporters/producers should make themselves known to the Commission and also indicate their agreement to being included in the sample. This would imply an agreement to reply to a questionnaire and accept on-the-spot investigation.
These are exporters/producers that participate fully in and satisfy the requirements of an AD investigation.
A separate dumping margin and duty rate may be calculated for each of these exporters/producers on the basis of their own production/sales data. Even if the Commission limits the investigations to certain "sampled" exporters/producers, the Commission should calculate individual margins for other exporters/producers who submit the necessary information within the time limits. However, if the number of such exporters/producers is so large that individual examinations would be unduly burdensome and would prevent the timely completion of the investigation, the Commission may decide not to calculate individual margins for them. Exporters/producers who have made themselves known to the Commission, but whom the Commission has not included in the "sample" or given an individual margin, will receive the weighted-average margin of dumping established for the parties in the sample.
As some of the co-operating companies may be able to secure an AD duty rate as low as zero, it is in the interests of the exporters/producers concerned to co-operate in any AD investigation.
These are exporters/producers who refuse access to or fail to provide the necessary information within the time limits provided, refuse verification or supply false or misleading information.
The Commission will use "facts available" to determine the existence of dumping and the dumping margin for these exporters/producers.
This will typically lead to the highest AD duty rate. It is therefore in the interests of the exporters/producers concerned to co-operate fully in any AD investigations.
In December 2017, the EU introduced a dumping margin calculation methodology on imports from World Trade Organisation (WTO) members whose prices and costs are distorted because of state intervention and in this context, the Commission published a report on Mainland China in the same month and published an updated version in April 2024. There is no list of countries to which the methodology applies and the reports published does not mean that the methodology will be automatically applied to all imports from Mainland China. The Commission will examine whether distortions exist in each and every case based on its own merits.
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Anti-dumping is a game of details and it is the details that could produce unfair results. While it is not a legal requirement that an exporter/producer must have legal representatives in an anti-dumping investigation, some exporters/producers have found a lawyer's expertise helpful in preparing answers to questionnaires and in representing their interests during the anti-dumping investigation.
Yes. Goods exported from Hong Kong may be subject to an anti-dumping investigation if they originate in an economy that is subject to the investigation. In such cases, the importing authorities may need information from Hong Kong exporters in order to accurately compare the export price with the normal value. Such information may include the price at which the product is acquired from the country of origin and the handling/associated charges incurred for trans-shipping the product to the country of importation.
Where an interested party to an anti-dumping investigation does not co-operate and refuses to provide the necessary information for the investigation, or has been found to supply false or misleading information, preliminary and final determinations for it may be made by the EU authorities on the basis of the "facts available". This usually is the information contained in the complaint, which is most harmful to the exporter.
The consequence of non-cooperation may lead to the imposition of the highest dumping margin on the party concerned due to unverified dumping margin.
Therefore, while it is not obligatory for any exporter/producer of the product concerned in an anti-dumping investigation to answer the questionnaire or co-operate with the EU authorities, it is generally in their interests to do so.
Anti-dumping duties, once imposed, are applicable on all imports of a product from the economy (or economies) subject to the anti-dumping investigation which are found to be dumped and causing injury. The exporter/producer of the product concerned, whether or not known to the EU authorities during the investigation, will also be subject to the anti-dumping measures. Exports of an unknown exporter will be subject to the "residual" rate
It is generally in the interest of all exporters/producers, whether or not known to the EU authorities, to co-operate in an anti-dumping investigation. The consequence of non-cooperation may lead to the imposition of the highest dumping margin due to the unverified dumping margin.
An exporter/producer will be facing an uphill battle once an anti-dumping investigation has been initiated. The best defence for it is to participate actively and positively in the investigation.
In the past, some co-operating exporter/producer have been able to secure an anti-dumping duty rate as low as zero.
If an investigation has already been concluded, then an exporter/producer may be able to obtain a more favourable dumping margin through a review. Please refer to the section on "Review" in "The EU's Anti-dumping Proceedings - Brief Outline".
An undertaking is sometimes preferred by exporters/producers as a better option than AD duties for the following reasons:
Note: