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Document 02016R1036-20200811
Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on protection against dumped imports from countries not members of the European Union (codification)
Consolidated text: Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on protection against dumped imports from countries not members of the European Union (codification)
Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on protection against dumped imports from countries not members of the European Union (codification)
02016R1036 — EN — 11.08.2020 — 003.001
This text is meant purely as a documentation tool and has no legal effect. The Union's institutions do not assume any liability for its contents. The authentic versions of the relevant acts, including their preambles, are those published in the Official Journal of the European Union and available in EUR-Lex. Those official texts are directly accessible through the links embedded in this document
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REGULATION (EU) 2016/1036 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 8 June 2016 on protection against dumped imports from countries not members of the European Union (OJ L 176 30.6.2016, p. 21) |
Amended by:
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Official Journal |
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No |
page |
date |
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REGULATION (EU) 2017/2321 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 12 December 2017 |
L 338 |
1 |
19.12.2017 |
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REGULATION (EU) 2018/825 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 30 May 2018 |
L 143 |
1 |
7.6.2018 |
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COMMISSION DELEGATED REGULATION (EU) 2020/1173 of 4 June 2020 |
L 259 |
1 |
10.8.2020 |
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REGULATION (EU) 2016/1036 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 8 June 2016
on protection against dumped imports from countries not members of the European Union
(codification)
Article 1
Principles
Article 2
Determination of dumping
A. NORMAL VALUE
However, where the exporter in the exporting country does not produce or does not sell the like product, the normal value may be established on the basis of prices of other sellers or producers.
Prices between parties which appear to be associated or to have a compensatory arrangement with each other may not be considered to be in the ordinary course of trade and may not be used to establish the normal value unless it is determined that they are unaffected by the relationship.
In order to determine whether two parties are associated, account may be taken of the definition of related parties set out in Article 127 of Commission Implementing Regulation (EU) 2015/2447 ( 1 ).
A particular market situation for the product concerned within the meaning of the first subparagraph may be deemed to exist, inter alia, when prices are artificially low, when there is significant barter trade, or when there are non-commercial processing arrangements.
If prices which are below costs at the time of sale are above weighted average costs for the period of investigation, such prices shall be considered to provide for recovery of costs within a reasonable period of time.
The extended period of time shall normally be one year but shall in no case be less than six months, and sales below unit cost shall be considered to be made in substantial quantities within such a period when it is established that the weighted average selling price is below the weighted average unit cost, or that the volume of sales below unit cost is not less than 20 % of sales being used to determine normal value.
If costs associated with the production and sale of the product under investigation are not reasonably reflected in the records of the party concerned, they shall be adjusted or established on the basis of the costs of other producers or exporters in the same country or, where such information is not available or cannot be used, on any other reasonable basis, including information from other representative markets.
Consideration shall be given to evidence submitted on the proper allocation of costs, provided that it is shown that such allocations have been historically utilised. In the absence of a more appropriate method, preference shall be given to the allocation of costs on the basis of turnover. Unless already reflected in the cost allocations under this subparagraph, costs shall be adjusted appropriately for those non-recurring items of cost which benefit future and/or current production.
Where the costs for part of the period for cost recovery are affected by the use of new production facilities requiring substantial additional investment and by low-capacity utilisation rates, which are the result of start-up operations which take place within or during part of the investigation period, the average costs for the start-up phase shall be those applicable, under the abovementioned allocation rules, at the end of such a phase, and shall be included at that level, for the period concerned, in the weighted average costs referred to in the second subparagraph of paragraph 4. The length of a start-up phase shall be determined in relation to the circumstances of the producer or exporter concerned, but shall not exceed an appropriate initial portion of the period for cost recovery. For this adjustment to costs applicable during the investigation period, information relating to a start-up phase which extends beyond that period shall be taken into account where it is submitted prior to verification visits and within three months of the initiation of the investigation.
The amounts for selling, for general and administrative costs and for profits shall be based on actual data pertaining to production and sales, in the ordinary course of trade, of the like product by the exporter or producer under investigation. When such amounts cannot be determined on that basis, the amounts may be determined on the basis of:
the weighted average of the actual amounts determined for other exporters or producers subject to investigation in respect of production and sales of the like product in the domestic market of the country of origin;
the actual amounts applicable to production and sales, in the ordinary course of trade, of the same general category of products for the exporter or producer in question in the domestic market of the country of origin;
any other reasonable method, provided that the amount for profit so established shall not exceed the profit normally realised by other exporters or producers on sales of products of the same general category in the domestic market of the country of origin.
In case it is determined, when applying this or any other relevant provision of this Regulation, that it is not appropriate to use domestic prices and costs in the exporting country due to the existence in that country of significant distortions within the meaning of point (b), the normal value shall be constructed exclusively on the basis of costs of production and sale reflecting undistorted prices or benchmarks, subject to the following rules.
The sources the Commission may use include:
Without prejudice to Article 17, that assessment shall be done for each exporter and producer separately.
The constructed normal value shall include an undistorted and reasonable amount for administrative, selling and general costs and for profits.
Significant distortions are those distortions which occur when reported prices or costs, including the costs of raw materials and energy, are not the result of free market forces because they are affected by substantial government intervention. In assessing the existence of significant distortions regard shall be had, inter alia, to the potential impact of one or more of the following elements:
Where the Commission has well-founded indications of the possible existence of significant distortions as referred to in point (b) in a certain country or a certain sector in that country, and where appropriate for the effective application of this Regulation, the Commission shall produce, make public and regularly update a report describing the market circumstances referred to in point (b) in that country or sector. Such reports and the evidence on which they are based shall be placed on the file of any investigation relating to that country or sector. Interested parties shall have ample opportunity to rebut, supplement, comment or rely on the report and the evidence on which it is based in each investigation in which such report or evidence is used. In assessing the existence of significant distortions, the Commission shall take into account all the relevant evidence that is on the investigation file.
When filing a complaint in accordance with Article 5, or a request for a review in accordance with Article 11, Union industry may rely on the evidence in the report referred to in point (c) of this paragraph, where meeting the standard of evidence in view of Article 5(9), in order to justify the calculation of the normal value.
Where the Commission finds that there is sufficient evidence, pursuant to Article 5(9), of significant distortions within the meaning of point (b) of this paragraph and decides to initiate an investigation on that basis, the notice of initiation shall specify that fact. The Commission shall collect the data necessary to allow the construction of the normal value in accordance with point (a) of this paragraph.
The parties to the investigation shall be informed promptly after initiation about the relevant sources that the Commission intends to use for the purpose of determining normal value pursuant to point (a) of this paragraph and shall be given 10 days to comment. For that purpose, interested parties shall be given access to the file, which shall include any evidence on which the investigating authority relies, without prejudice to Article 19. Any evidence regarding the existence of significant distortions may only be taken into account if it can be verified in a timely manner within the investigation, in accordance with Article 6(8).
The appropriate representative country shall be selected in a reasonable manner, due account being taken of any reliable information made available at the time of selection, and in particular of cooperation by at least one exporter and producer in that country. Where there is more than one such country, preference shall be given, where appropriate, to countries with an adequate level of social and environmental protection. Account shall also be taken of time limits. Where appropriate, an appropriate representative country which is subject to the same investigation shall be used.
The parties to the investigation shall be informed promptly after its initiation of the country envisaged and shall be given 10 days to comment.
B. EXPORT PRICE
In those cases, adjustment for all costs, including duties and taxes, incurred between the importation and resale, and for profits accruing, shall be made so as to establish a reliable export price, at the Union frontier level.
The items for which adjustment shall be made shall include those normally borne by an importer but paid by any party, either inside or outside the Union, which appears to be associated or to have a compensatory arrangement with the importer or exporter, including usual transport, insurance, handling, loading and ancillary costs, customs duties, any anti-dumping duties, and other taxes payable in the importing country by reason of the importation or sale of the goods, and a reasonable margin for selling, general and administrative costs and profit.
C. COMPARISON
A fair comparison shall be made between the export price and the normal value. This comparison shall be made at the same level of trade and in respect of sales made at, as closely as possible, the same time and with due account taken of other differences which affect price comparability. Where the normal value and the export price as established are not on such a comparable basis, due allowance, in the form of adjustments, shall be made in each case, on its merits, for differences in factors which are claimed, and demonstrated, to affect prices and price comparability. Any duplication when making adjustments shall be avoided, in particular in relation to discounts, rebates, quantities and level of trade. When the specified conditions are met, the factors for which adjustment can be made are listed as follows:
Physical characteristics
An adjustment shall be made for differences in the physical characteristics of the product concerned. The amount of the adjustment shall correspond to a reasonable estimate of the market value of the difference.
Import charges and indirect taxes
An adjustment shall be made to the normal value for an amount corresponding to any import charges or indirect taxes borne by the like product and by materials physically incorporated therein, when intended for consumption in the exporting country and not collected or refunded in respect of the product exported to the Union.
Discounts, rebates and quantities
An adjustment shall be made for differences in discounts and rebates, including those given for differences in quantities, if those are properly quantified and are directly linked to the sales under consideration. An adjustment may also be made for deferred discounts and rebates if the claim is based on consistent practice in prior periods, including compliance with the conditions required to qualify for the discount or rebates.
Level of trade
An adjustment for differences in levels of trade, including any differences which may arise in OEM (original equipment manufacturer) sales, shall be made where, in relation to the distribution chain in both markets, it is shown that the export price, including a constructed export price, is at a different level of trade from the normal value and the difference has affected price comparability, which is demonstrated by consistent and distinct differences in functions and prices of the seller for the different levels of trade in the domestic market of the exporting country. The amount of the adjustment shall be based on the market value of the difference.
However, in circumstances not envisaged under point (i), when an existing difference in level of trade cannot be quantified because of the absence of the relevant levels on the domestic market of the exporting countries, or where certain functions are shown clearly to relate to levels of trade other than the one which is to be used in the comparison, a special adjustment may be granted.
Transport, insurance, handling, loading and ancillary costs
An adjustment shall be made for differences in the directly related costs incurred for conveying the product concerned from the premises of the exporter to an independent buyer, where such costs are included in the prices charged. Those costs shall include transport, insurance, handling, loading and ancillary costs.
Packing
An adjustment shall be made for differences in the directly related packing costs for the product concerned.
Credit
An adjustment shall be made for differences in the cost of any credit granted for the sales under consideration, provided that it is a factor taken into account in the determination of the prices charged.
After-sales costs
An adjustment shall be made for differences in the direct costs of providing warranties, guarantees, technical assistance and services, as provided for by law and/or in the sales contract.
Commissions
An adjustment shall be made for differences in commissions paid in respect of the sales under consideration.
The term ‘commissions’ shall be understood to include the mark-up received by a trader of the product or the like product if the functions of such a trader are similar to those of an agent working on a commission basis.
Currency conversions
When the price comparison requires a conversion of currencies, such conversion shall be made using the rate of exchange on the date of sale, except that, when a sale of foreign currency on forward markets is directly linked to the export sale involved, the rate of exchange in the forward sale shall be used. Normally, the date of sale shall be the date of invoice but the date of contract, purchase order or order confirmation may be used if those more appropriately establish the material terms of sale. Fluctuations in exchange rates shall be ignored and exporters shall be granted 60 days to reflect a sustained movement in exchange rates during the investigation period.
Other factors
An adjustment may also be made for differences in other factors not provided for under points (a) to (j), if it is demonstrated that they affect price comparability as required under this paragraph, in particular if customers consistently pay different prices on the domestic market because of the difference in such factors.
D. DUMPING MARGIN
Article 3
Determination of injury
A determination of injury shall be based on positive evidence and shall involve an objective examination of:
the volume of the dumped imports and the effect of the dumped imports on prices in the Union market for like products; and
the consequent impact of those imports on the Union industry.
Where imports of a product from more than one country are simultaneously subject to anti-dumping investigations, the effects of such imports shall be cumulatively assessed only if it is determined that:
the margin of dumping established in relation to the imports from each country is more than de minimis as defined in Article 9(3) and the volume of imports from each country is not negligible; and
a cumulative assessment of the effects of the imports is appropriate in the light of the conditions of competition between imported products and the conditions of competition between the imported products and the like Union product.
In making a determination regarding the existence of a threat of material injury, consideration should be given to factors such as:
a significant rate of increase of dumped imports into the Union market indicating the likelihood of substantially increased imports;
whether there is sufficient freely disposable capacity on the part of the exporter or an imminent and substantial increase in such capacity indicating the likelihood of substantially increased dumped exports to the Union, account being taken of the availability of other export markets to absorb any additional exports;
whether imports are entering at prices that would, to a significant degree, depress prices or prevent price increases which otherwise would have occurred, and would probably increase demand for further imports;
inventories of the product being investigated.
No one of the factors listed above by itself can necessarily give decisive guidance, but the totality of the factors considered shall be such as to lead to the conclusion that further dumped exports are imminent and that, unless protective action is taken, material injury will occur.
Article 4
Definition of Union industry
For the purposes of this Regulation, the term ‘Union industry’ shall be interpreted as referring to the Union producers as a whole of the like products or to those of them whose collective output of the products constitutes a major proportion of the total Union production of those products, except that:
when producers are related to the exporters or importers, or are themselves importers of the allegedly dumped product, the term ‘Union industry’ may be interpreted as referring to the rest of the producers;
in exceptional circumstances, the territory of the Union may, for the production in question, be divided into two or more competitive markets and the producers within each market may be regarded as a separate industry if:
the producers within such a market sell all or almost all of their production of the product in question in that market; and
the demand in that market is not to any substantial degree met by producers of the product in question located elsewhere in the Union.
In such circumstances, injury may be found to exist even where a major portion of the total Union industry is not injured, provided that there is a concentration of dumped imports into such an isolated market and provided further that the dumped imports are causing injury to the producers of all or almost all of the production within such a market.
For the purpose of paragraph 1, producers shall be considered to be related to exporters or importers only if:
one of them directly or indirectly controls the other;
both of them are directly or indirectly controlled by a third person; or
together they directly or indirectly control a third person, provided that there are grounds for believing or suspecting that the effect of the relationship is such as to cause the producer concerned to behave differently from non-related producers.
For the purpose of this paragraph, one shall be deemed to control another when the former is legally or operationally in a position to exercise restraint or direction over the latter.
Article 5
Initiation of proceedings
Complaints may also be submitted jointly by the Union industry, or by any natural or legal person or any association not having legal personality acting on behalf thereof, and trade unions, or be supported by trade unions. This does not affect the possibility for the Union industry to withdraw the complaint.
The complaint may be submitted to the Commission or to a Member State, which shall forward it to the Commission. The Commission shall send Member States a copy of any complaint it receives. The complaint shall be deemed to have been lodged on the first working day following its delivery to the Commission by registered mail or the issuing of an acknowledgement of receipt by the Commission.
Where, in the absence of any complaint, a Member State is in possession of sufficient evidence of dumping and of resultant injury to the Union industry, it shall immediately communicate such evidence to the Commission.
The SME Helpdesk shall make available standard forms for statistics to be submitted for standing purposes and questionnaires.
A complaint under paragraph 1 shall include evidence of dumping, injury and a causal link between the allegedly dumped imports and the alleged injury. The complaint shall contain such information as is reasonably available to the complainant on the following:
the identity of the complainant and a description of the volume and value of the Union production of the like product by the complainant. Where a written complaint is made on behalf of the Union industry, the complaint shall identify the industry on behalf of which the complaint is made by a list of all known Union producers of the like product (or associations of Union producers of the like product) and, to the extent possible, a description of the volume and value of Union production of the like product accounted for by such producers;
a complete description of the allegedly dumped product, the names of the country or countries of origin or export in question, the identity of each known exporter or foreign producer and a list of known persons importing the product in question;
the prices at which the product in question is sold when destined for consumption in the domestic markets of the country or countries of origin or export (or, where appropriate, the prices at which the product is sold from the country or countries of origin or export to a third country or countries or on the constructed value of the product) and the export prices or, where appropriate, the prices at which the product is first resold to an independent buyer in the Union;
the changes in the volume of the allegedly dumped imports, the effect of those imports on prices of the like product on the Union market and the consequent impact of the imports on the Union industry, as demonstrated by relevant factors and indices having a bearing on the state of the Union industry, such as those listed in Article 3(3) and (5).
It shall state the periods within which interested parties may make themselves known, present their views in writing and submit information if such views and information are to be taken into account during the investigation. It shall also state the period within which interested parties may apply to be heard by the Commission in accordance with Article 6(5).
Article 6
The investigation
For the purpose of a representative finding, an investigation period shall be selected which in the case of dumping shall, normally, cover a period of no less than six months immediately prior to the initiation of proceedings.
Information relating to a period subsequent to the investigation period shall, normally, not be taken into account.
They shall send to the Commission the information requested together with the results of all inspections, checks or investigations carried out.
Where that information is of general interest or where its transmission has been requested by a Member State, the Commission shall forward it to the Member States, provided that it is not confidential, in which case a non-confidential summary shall be forwarded.
Member States shall take whatever steps are necessary in order to give effect to such requests from the Commission.
Officials of the Commission shall be authorised, if the Commission or a Member State so requests, to assist the officials of Member States in carrying out their duties.
Provision of such opportunities shall take account of the need to preserve confidentiality and of the convenience to the parties.
There shall be no obligation on any party to attend a meeting, and failure to do so shall not be prejudicial to that party's case.
Oral information provided under this paragraph shall be taken into account in so far as it is subsequently confirmed in writing.
Such parties may respond to such information and their comments shall be taken into consideration, wherever they are sufficiently substantiated in the response.
Article 7
Provisional measures
Provisional duties may be imposed if:
proceedings have been initiated in accordance with Article 5;
a notice has been given to that effect and interested parties have been given an adequate opportunity to submit information and make comments in accordance with Article 5(10);
a provisional affirmative determination has been made of dumping and consequent injury to the Union industry; and
the Union interest calls for intervention to prevent such injury.
The provisional duties shall be imposed no earlier than 60 days from the initiation of the proceedings and normally not later than seven months, but in any event not later than eight months, from the initiation of the proceedings.
Provisional duties shall not be imposed within three weeks of the information being sent to interested parties in accordance Article 19a (period of pre-disclosure). The provision of such information shall not prejudice any subsequent related decision that may be taken by the Commission.
The Commission shall review by 9 June 2020, whether a substantial rise in imports has occurred during the period of pre-disclosure and whether, if such rise has occurred, it has caused additional injury to the Union industry, despite the measures that the Commission might have taken based on Article 14(5a) and Article 9(4). It shall rely in particular on data collected on the basis of Article 14(6) and any relevant information at its disposal. The Commission shall adopt a delegated act in accordance with Article 23a to amend the duration of the period of pre-disclosure to two weeks in the case of a substantial rise of imports that have caused additional injury and to four weeks where this is not the case.
The Commission shall make public on its website its intention to impose provisional duties, including information on the possible duty rates, at the same time when it provides interested parties with the information pursuant to Article 19a.
For the purposes of this paragraph, distortions on raw materials consist of the following measures: dual pricing schemes, export taxes, export surtax, export quota, export prohibition, fiscal tax on exports, licensing requirements, minimum export price, value added tax (VAT) refund reduction or withdrawal, restriction on customs clearance point for exporters, qualified exporters list, domestic market obligation, captive mining if the price of a raw material is significantly lower as compared to prices in the representative international markets.
The Commission is empowered to adopt delegated acts in accordance with Article 23a to amend this Regulation by adding further distortions on raw materials on to the list referred to in the second subparagraph of this paragraph, if the OECD ‘Inventory on export restrictions on industrial raw materials’, or any OECD database which replaces this inventory, identifies other types of measures.
The investigation shall cover any distortion on raw materials identified in the second subparagraph of this paragraph, for the existence of which the Commission has sufficient evidence pursuant to Article 5.
For the purpose of this Regulation, a single raw material, whether unprocessed or processed, including energy, for which a distortion is found, must account for not less than 17 % of the cost of production of the product concerned. For the purpose of this calculation, an undistorted price of the raw material as established in representative international markets shall be used.
Article 8
Undertakings
In such a case and as long as such undertakings are in force, provisional duties imposed by the Commission in accordance with Article 7(1), or definitive duties imposed in accordance with Article 9(4), as the case may be, shall not apply to the relevant imports of the product concerned manufactured by the companies referred to in the Commission decision accepting undertakings, as subsequently amended.
Price increases under such undertakings shall not be higher than necessary to eliminate the margin of dumping and they shall be less than the margin of dumping if such increase would be adequate to remove the injury to the Union industry.
When examining whether price increases under such undertakings lower than the margin of dumping would be sufficient to remove injury, Article 7(2a), (2b), (2c) and (2d) shall apply accordingly.
However, it may be determined that a threat of injury is more likely to be realised if the dumped imports continue. Undertakings shall not be sought or accepted from exporters unless a provisional affirmative determination of dumping and injury caused by such dumping has been made.
Save in exceptional circumstances, undertakings may not be offered later than five days prior to the end of the period during which representations may be made pursuant to Article 20(5), so as to ensure the opportunity to comment for other parties.
Furthermore, before accepting any such offer, the Union industry shall be given an opportunity to comment with regard to the main features of the undertaking.
In the event that an affirmative determination of dumping and injury is made, the undertaking shall continue in accordance with its terms and the provisions of this Regulation.
Any interested party or Member State may submit information showing prima facie evidence of a breach of an undertaking. The subsequent assessment of whether or not a breach of an undertaking has occurred shall normally be concluded within six months, but in no case later than nine months following a duly substantiated request.
The Commission may request the assistance of the competent authorities of the Member States in the monitoring of undertakings.
Article 9
Termination without measures; imposition of definitive duties
The amount of the anti-dumping duty shall not exceed the margin of dumping established but it should be less than the margin if such lesser duty would be adequate to remove the injury to the Union industry. Article 7(2a), (2b) (2c) and (2d), shall apply accordingly.
Where the Commission has not registered imports, but where it finds, based on an analysis of all relevant information at its disposal when adopting definitive measures, that a further substantial rise in imports subject to the investigation occurs during the period of pre-disclosure, the Commission shall reflect the additional injury resulting from such increase in the determination of the injury margin for a period no longer than that referred to in Article 11(2).
The regulation imposing anti-dumping measures shall specify the duty for each supplier or, if that is impracticable, the supplying country concerned. Suppliers which are legally distinct from other suppliers or which are legally distinct from the State may nevertheless be considered as a single entity for the purpose of specifying the duty. For the application of this subparagraph, account may be taken of factors such as the existence of structural or corporate links between the suppliers and the State or between suppliers, control or material influence by the State in respect of pricing and output, or the economic structure of the supplying country.
For the purpose of this paragraph, the Commission shall disregard any zero and de minimis margins, and margins established in the circumstances referred to in Article 18.
Individual duties shall be applied to imports from any exporter or producer which is granted individual treatment, as provided for in Article 17.
Article 10
Retroactivity
For that purpose, ‘injury’ shall not include material delay of the establishment of a Union industry, nor threat of material injury, except where it is found that this would, in the absence of provisional measures, have developed into material injury. In all other cases involving such threat or delay, any provisional amounts shall be released and definitive duties can only be imposed from the date on which a final determination of threat or material delay is made.
A definitive anti-dumping duty may be levied on products which were entered for consumption no more than 90 days prior to the date of application of provisional measures but not prior to the initiation of the investigation, provided that:
the imports have been registered in accordance with Article 14(5);
the importers concerned have been given an opportunity to comment by the Commission;
there is, for the product in question, a history of dumping over an extended period, or the importer was aware of, or should have been aware of, the dumping as regards the extent of the dumping and the injury alleged or found; and
in addition to the level of imports which caused injury during the investigation period, there is a further substantial rise in imports which, in the light of its timing and volume and other circumstances, is likely to seriously undermine the remedial effect of the definitive anti-dumping duty to be applied.
Article 11
Duration, reviews and refunds
An expiry review shall be initiated where the request contains sufficient evidence that the expiry of the measures would likely result in a continuation or recurrence of dumping and injury. Such likelihood may, for example, be indicated by evidence of continued dumping and injury or evidence that the removal of injury is partly or solely due to the existence of measures or evidence that the circumstances of the exporters, or market conditions, are such that they would indicate the likelihood of further injurious dumping, or by evidence of continued distortions on raw materials.
In carrying out investigations under this paragraph, the exporters, importers, the representatives of the exporting country and the Union producers shall be provided with the opportunity to amplify, rebut or comment on the matters set out in the review request, and conclusions shall be reached with due account taken of all relevant and duly documented evidence presented in relation to the question as to whether the expiry of measures would be likely, or unlikely, to lead to the continuation or recurrence of dumping and injury.
A notice of impending expiry shall be published in the Official Journal of the European Union at an appropriate time in the final year of the period of application of the measures as defined in this paragraph. Thereafter, the Union producers shall, no later than three months before the end of the five-year period, be entitled to lodge a review request in accordance with the second subparagraph. A notice announcing the actual expiry of measures pursuant to this paragraph shall also be published.
An interim review shall be initiated where the request contains sufficient evidence that the continued imposition of the measure is no longer necessary to offset dumping and/or that the injury would be unlikely to continue or recur if the measure were removed or varied, or that the existing measure is not, or is no longer, sufficient to counteract the dumping which is causing injury.
In carrying out investigations pursuant to this paragraph, the Commission may, inter alia, consider whether the circumstances with regard to dumping and injury have changed significantly, or whether existing measures are achieving the intended results in removing the injury previously established under Article 3. In those respects, account shall be taken in the final determination of all relevant and duly documented evidence.
Where existing anti-dumping measures are based on a normal value calculated pursuant to the Article 2(7) as it was in force on 19 December 2017, the methodology laid down in Article 2(1) to (6a) shall replace the original methodology used for the determination of the normal value only from the date on which the first expiry review of those measures, after 19 December 2017, is initiated. In accordance with Article 11(2), those measures shall remain in force pending the outcome of the review.
The review shall be initiated where a new exporter or producer can show that it is not related to any of the exporters or producers in the exporting country which are subject to the anti-dumping measures on the product, and that it has actually exported to the Union following the investigation period, or where it can demonstrate that it has entered into an irrevocable contractual obligation to export a significant quantity to the Union.
A review for a new exporter shall be initiated and carried out on an accelerated basis after Union producers have been given an opportunity to comment. The Commission Regulation initiating a review shall repeal the duty in force with regard to the new exporter concerned by amending the regulation which has imposed such duty, and by making imports subject to registration in accordance with Article 14(5) in order to ensure that, should the review result in a determination of dumping in respect of such an exporter, anti-dumping duties can be levied retroactively to the date of the initiation of the review.
The provisions of this paragraph shall not apply where duties have been imposed under Article 9(6).
Where existing anti-dumping measures are based on a normal value calculated pursuant to Article 2(7) as it was in force on 19 December 2017, the methodology laid down in Article 2(1) to (6a) shall replace the original methodology used for the determination of the normal value only after the date on which the first expiry review of those measures, after 20 December 2017, is initiated. In accordance with Article 11(2), those measures shall remain in force pending the outcome of the review.
Reviews carried out pursuant to paragraphs 2 and 3 shall be carried out expeditiously and shall normally be concluded within 12 months of the date of initiation of the review. In any event, reviews pursuant to paragraphs 2 and 3 shall in all cases be concluded within 15 months of initiation.
Reviews pursuant to paragraph 4 shall in all cases be concluded within nine months of the date of initiation.
If a review carried out pursuant to paragraph 2 is initiated while a review under paragraph 3 is ongoing in the same proceedings, the review pursuant to paragraph 3 shall be concluded at the same time as the review pursuant to paragraph 2.
If the investigation is not completed within the deadlines specified in the second, third and fourth subparagraphs, the measures shall:
A notice announcing the actual expiry or maintenance of the measures pursuant to this paragraph shall then be published in the Official Journal of the European Union.
If, following an investigation pursuant to paragraph 2, the measure expires, any duties collected from the date of the initiation of such investigation on goods that were customs-cleared shall be repaid provided that this is requested from national customs authorities and granted by those authorities in accordance with the applicable Union customs legislation concerning repayment and remission of duty. Such repayment shall not give rise to the payment of interest by the national customs authorities concerned.
Where warranted by reviews, measures shall, in accordance with the examination procedure referred to in Article 15(3), be repealed or maintained pursuant to paragraph 2 of this Article, or repealed, maintained or amended pursuant to paragraphs 3 and 4 of this Article.
Where measures are repealed for individual exporters, but not for the country as a whole, such exporters shall remain subject to the proceedings and may, automatically, be reinvestigated in any subsequent review carried out for that country pursuant to this Article.
In requesting a refund of anti-dumping duties, the importer shall submit an application to the Commission. The application shall be submitted via the Member State of the territory in which the products were released for free circulation, within six months of the date on which the amount of the definitive duties to be levied was duly determined by the competent authorities or of the date on which a decision was made definitively to collect the amounts secured by way of provisional duty. Member States shall forward the request to the Commission forthwith.
An application for refund shall only be considered to be duly supported by evidence where it contains precise information on the amount of refund of anti-dumping duties claimed and all customs documentation relating to the calculation and payment of such amount. It shall also include evidence, for a representative period, of normal values and export prices to the Union for the exporter or producer to which the duty applies. In cases where the importer is not associated with the exporter or producer concerned and such information is not immediately available, or where the exporter or producer is unwilling to release it to the importer, the application shall contain a statement from the exporter or producer that the dumping margin has been reduced or eliminated, as specified in this Article, and that the relevant supporting evidence will be provided to the Commission. Where such evidence is not forthcoming from the exporter or producer within a reasonable period of time the application shall be rejected.
The Commission shall decide whether and to what extent the application should be granted, or it may decide at any time to initiate an interim review, whereupon the information and findings from such a review carried out in accordance with the provisions applicable for such reviews shall be used to determine whether and to what extent a refund is justified. The Commission shall provide information to the Member States once it has completed its analysis of the application.
Refunds of duties shall normally take place within 12 months, and in no circumstances more than 18 months after the date on which a request for a refund, duly supported by evidence, has been made by an importer of the product subject to the anti-dumping duty.
The payment of any refund authorised should normally be made by Member States within 90 days of the Commission's decision.
In relation to the circumstances relevant for the determination of the normal value pursuant to Article 2, due account shall be taken of all relevant evidence, including relevant reports regarding the circumstances prevailing on the domestic market of the exporters and producers and the evidence on which they are based, which has been placed on the file, and upon which interested parties have had an opportunity to comment.
Article 12
Absorption
The investigation may also be reopened, under the conditions set out in the first subparagraph, on the initiative of the Commission or at the request of a Member State.
If the reinvestigation is not completed within the deadlines specified in the first subparagraph, measures shall remain unchanged. A notice announcing the maintenance of the measures pursuant to this paragraph shall be published in the Official Journal of the European Union.
Article 13
Circumvention
Anti-dumping duties not exceeding the residual anti-dumping duty imposed in accordance with Article 9(5) may be extended to imports from companies benefiting from individual duties in the countries subject to measures when circumvention of the measures in force is taking place.
Circumvention shall be defined as a change in the pattern of trade between third countries and the Union or between individual companies in the country subject to measures and the Union, which stems from a practice, process or work for which there is insufficient due cause or economic justification other than the imposition of the duty, and where there is evidence of injury or that the remedial effects of the duty are being undermined in terms of the prices and/or quantities of the like product, and where there is evidence of dumping in relation to the normal values previously established for the like product, if necessary in accordance with the provisions of Article 2.
The practice, process or work referred to in the third subparagraph includes, inter alia:
the slight modification of the product concerned to make it fall under customs codes which are normally not subject to the measures, provided that the modification does not alter its essential characteristics;
the consignment of the product subject to measures via third countries;
the reorganisation by exporters or producers of their patterns and channels of sales in the country subject to measures in order to eventually have their products exported to the Union through producers benefiting from an individual duty rate lower than that applicable to the products of the manufacturers;
in the circumstances indicated in paragraph 2, the assembly of parts by an assembly operation in the Union or a third country.
An assembly operation in the Union or a third country shall be considered to circumvent the measures in force where:
the operation started or substantially increased since, or just prior to, the initiation of the anti-dumping investigation and the parts concerned are from the country subject to measures; and
the parts constitute 60 % or more of the total value of the parts of the assembled product, except that in no case shall circumvention be considered to be taking place where the value added to the parts brought in, during the assembly or completion operation, is greater than 25 % of the manufacturing cost; and
the remedial effects of the duty are being undermined in terms of the prices and/or quantities of the assembled like product and there is evidence of dumping in relation to the normal values previously established for the like or similar products.
Investigations shall be carried out by the Commission. The Commission may be assisted by customs authorities and the investigation shall be concluded within nine months.
Where the facts as finally ascertained justify the extension of measures, this shall be done by the Commission acting in accordance with the examination procedure referred to in Article 15(3). The extension shall take effect from the date on which registration was imposed pursuant to Article 14(5), or on which guarantees were requested. The relevant procedural provisions of this Regulation concerning the initiation and the conduct of investigations shall apply pursuant to this Article.
Requests for exemptions duly supported by evidence shall be submitted within the time limits established in the Commission regulation pursuant to which the investigation is initiated.
Where the circumventing practice, process or work takes place outside the Union, exemptions may be granted to producers of the product concerned that are found not to be engaged in circumvention practices as defined in paragraphs 1 and 2 of this Article.
Where the circumventing practice, process or work takes place inside the Union, exemptions may be granted to importers that can show that they are not engaged in circumvention practices as defined in paragraphs 1 and 2 of this Article.
Those exemptions shall be granted by decision of the Commission and shall remain valid for the period and under the conditions set down therein. The Commission shall provide information to the Member States once it has concluded its analysis.
Provided that the conditions set in Article 11(4) are met, exemptions may also be granted after the conclusion of the investigation leading to the extension of the measures.
Provided that at least one year has lapsed from the extension of the measures, and in case the number of parties requesting or potentially requesting an exemption is significant, the Commission may decide to initiate a review of the extension of the measures. Any such review shall be conducted in accordance with the provisions of Article 11(5) as applicable to reviews pursuant to Article 11(3).
Article 14
General provisions
No product shall be subject to both anti-dumping and countervailing duties for the purpose of dealing with one and the same situation arising from dumping or from export subsidisation.
Such regulations or decisions shall contain in particular, and with due regard to the protection of confidential information, the names of the exporters, if possible, or of the countries involved, a description of the product and a summary of the material facts and considerations relevant to the dumping and injury determinations. In each case, a copy of the regulation or decision shall be sent to known interested parties. The provisions of this paragraph shall apply mutatis mutandis to reviews.
Measures may only be suspended where market conditions have temporarily changed to an extent that injury would be unlikely to resume as a result of the suspension, and provided that the Union industry has been given an opportunity to comment and those comments have been taken into account. Measures may at any time be reinstated in accordance with the advisory procedure referred to in Article 15(2) if the reason for suspension is no longer applicable.
Article 14a
Continental shelf or exclusive economic zone
Article 15
Committee procedure
Article 16
Verification visits
Article 17
Sampling
However, if a material degree of non-cooperation persists or there is insufficient time to select a new sample, the relevant provisions of Article 18 shall apply.
Article 18
Non-cooperation
Where it is found that any interested party has supplied false or misleading information, that information shall be disregarded and use may be made of facts available.
Interested parties shall be made aware of the consequences of non-cooperation.
Such information may include relevant data pertaining to the world market or other representative markets, where appropriate.
Article 19
Confidentiality
This provision shall not preclude the use of information received in the context of one investigation for the purpose of initiating other investigations within the same proceedings in relation to the product concerned.
Article 19a
Information at provisional stage
Article 20
Disclosure
Disclosure shall not prejudice any subsequent decision which may be taken by the Commission, but where such a decision is based on any different facts and considerations they shall be disclosed as soon as possible.
Article 21
Union interest
Article 22
Final provisions
This Regulation shall not preclude the application of:
any special rules laid down in agreements concluded between the Union and third countries;
the Union Regulations in the agricultural sector and Council Regulations (EC) No 1667/2006 ( 4 ), (EC) No 614/2009 ( 5 ) and (EC) No 1216/2009 ( 6 ). This Regulation shall operate by way of complement to those Regulations and in derogation from any provisions thereof which preclude the application of anti-dumping duties;
special measures, provided that such action does not run counter to obligations under the General Agreement on Tariffs and Trade 1994.
Article 23
Report and information
That report shall include information about the application of provisional and definitive measures, the termination of investigations without measures, undertakings, reinvestigations, reviews, significant distortions and verification visits, and the activities of the various bodies responsible for monitoring the implementation of this Regulation and fulfilment of the obligations arising therefrom. The report shall also cover the use of trade defence instruments by third countries targeting the Union and appeals against the measures imposed. It shall include the activities of the Hearing Officer of the Commission’s Directorate General for Trade and those of the SME Helpdesk in relation to the application of this Regulation.
The Report shall also include how social and environmental standards have been considered and taken into account in the investigations. Such standards shall cover those embodied in multilateral environmental agreements to which the Union is party and in ILO Conventions listed in Annex Ia to this Regulation, as well as equivalent national legislation of the exporting country.
Article 23a
Exercise of the delegation
The power to adopt delegated acts referred to in Article 7(2a) shall be conferred on the Commission for a period of five years from 8 June 2018. The Commission shall draw up a report in respect of the delegation of power not later than nine months before the end of the five-year period. The delegation of power shall be tacitly extended for a period of an identical duration, unless the European Parliament or the Council opposes such extension not later than three months before the end of each period.
Article 24
Repeal
Regulation (EC) No 1225/2009 is repealed.
References to the repealed Regulation shall be construed as references to this Regulation and shall be read in accordance with the correlation table in Annex II.
Article 25
Entry into force
This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
ANNEX I
REPEALED REGULATION WITH LIST OF ITS SUCCESSIVE AMENDMENTS
|
Council Regulation (EC) No 1225/2009 (OJ L 343, 22.12.2009, p. 51) |
|
|
Regulation (EU) No 765/2012 of the European Parliament and of the Council (OJ L 237, 3.9.2012, p. 1) |
|
|
Regulation (EU) No 1168/2012 of the European Parliament and of the Council (OJ L 344, 14.12.2012, p. 1) |
|
|
Regulation (EU) No 37/2014 of the European Parliament and of the Council (OJ L 18, 21.1.2014, p. 1) |
Only point 22 of the Annex |
ANNEX Ia
ILO CONVENTIONS REFERRED TO IN THIS REGULATION
Convention concerning Forced or Compulsory Labour, No 29 (1930)
Convention concerning Freedom of Association and Protection of the Right to Organise, No 87 (1948)
Convention concerning the Application of the Principles of the Right to Organise and to Bargain Collectively, No 98 (1949)
Convention concerning Equal Remuneration of Men and Women Workers for Work of Equal Value, No 100 (1951)
Convention concerning the Abolition of Forced Labour, No 105 (1957)
Convention concerning Discrimination in Respect of Employment and Occupation, No 111 (1958)
Convention concerning Minimum Age for Admission to Employment, No 138 (1973)
Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour, No 182 (1999)
ANNEX II
CORRELATION TABLE
|
Regulation (EC) No 1225/2009 |
This Regulation |
|
Articles 1 to 4 |
Articles 1 to 4 |
|
Article 5(1) to (9) |
Article 5(1) to (9) |
|
Article 5(10), first sentence |
Article 5(10), first subparagraph |
|
Article 5(10), second and third sentence |
Article 5(10), second subparagraph |
|
Article 5(11) and (12) |
Article 5(11) and (12) |
|
Article 6(1), first and second sentence |
Article 6(1), first subparagraph |
|
Article 6(1), third sentence |
Article 6(1), second subparagraph |
|
Article 6(1), fourth sentence |
Article 6(1), third subparagraph |
|
Article 6(2) |
Article 6(2) |
|
Article 6(3), first sentence |
Article 6(3), first subparagraph |
|
Article 6(3), second sentence |
Article 6(3), second subparagraph |
|
Article 6(3), third sentence |
Article 6(3), third subparagraph |
|
Article 6(4), first sentence |
Article 6(4), first subparagraph |
|
Article 6(4), second sentence |
Article 6(4), second subparagraph |
|
Article 6(4), third sentence |
Article 6(4), third subparagraph |
|
Article 6(5) |
Article 6(5) |
|
Article 6(6), first sentence |
Article 6(6), first subparagraph |
|
Article 6(6), second sentence |
Article 6(6), second subparagraph |
|
Article 6(6), third sentence |
Article 6(6), third subparagraph |
|
Article 6(6), fourth sentence |
Article 6(6), fourth subparagraph |
|
Article 6(7), first sentence |
Article 6(7), first subparagraph |
|
Article 6(7), second sentence |
Article 6(7), second subparagraph |
|
Article 6(8) and (9) |
Article 6(8) and (9) |
|
Article 7(1), first sentence |
Article 7(1), first subparagraph |
|
Article 7(1), second sentence |
Article 7(1), second subparagraph |
|
Article 7(2) to (5) |
Article 7(2) to (5) |
|
Article 7(7) |
Article 7(6) |
|
Article 8(1), first sentence |
Article 8(1), first subparagraph |
|
Article 8(1), second sentence |
Article 8(1), second subparagraph |
|
Article 8(1), third sentence |
Article 8(1), third subparagraph |
|
Article 8(2), first and second sentence |
Article 8(2), first subparagraph |
|
Article 8(2), third and fourth sentence |
Article 8(2), second subparagraph |
|
Article 8(2), fifth sentence |
Article 8(2), third subparagraph |
|
Article 8(3), (4) and (5) |
Article 8(3), (4) and (5) |
|
Article 8(6), first and second sentence |
Article 8(6), first subparagraph |
|
Article 8(6), third sentence |
Article 8(6), second subparagraph |
|
Article 8(7) and (8) |
Article 8(7) and (8) |
|
Article 8(9), first subparagraph |
Article 8(9), first subparagraph |
|
Article 8(9), second subparagraph, first and second sentence |
Article 8(9), second subparagraph |
|
Article 8(9), second subparagraph, third sentence |
Article 8(9), third subparagraph |
|
Article 8(10) |
Article 8(10) |
|
Article 9(1), (2) and (3) |
Article 9(1), (2) and (3) |
|
Article 9(4), first sentence |
Article 9(4), first subparagraph |
|
Article 9(4), second sentence |
Article 9(4), second subparagraph |
|
Article 9(5) |
Article 9(5) |
|
Article 9(6), first sentence |
Article 9(6), first subparagraph |
|
Article 9(6), second sentence |
Article 9(6), second subparagraph |
|
Article 9(6), third sentence |
Article 9(6), third subparagraph |
|
Article 10(1) |
Article 10(1) |
|
Article 10(2), first sentence |
Article 10(2), first subparagraph |
|
Article 10(2), second and third sentence |
Article 10(2), second subparagraph |
|
Article 10(3) |
Article 10(3) |
|
Article 10(4), introductory wording |
Article 10(4), introductory wording and points (a) and (b) |
|
Article 10(4)(a) |
Article 10(4)(c) |
|
Article 10(4)(b) |
Article 10(4)(d) |
|
Article 10(5) |
Article 10(5) |
|
Article 11(1) to (4) |
Article 11(1) to (4) |
|
Article 11(5), first subparagraph, first sentence |
Article 11(5), first subparagraph |
|
Article 11(5), first subparagraph, second and third sentence |
Article 11(5), second subparagraph |
|
Article 11(5), first subparagraph, fourth sentence |
Article 11(5), third subparagraph |
|
Article 11(5), first subparagraph, fifth sentence |
Article 11(5), fourth subparagraph |
|
Article 11(5), second subparagraph |
Article 11(5), fifth subparagraph |
|
Article 11(5), third subparagraph |
Article 11(5), sixth subparagraph |
|
Article 11(6), first, second and third sentence |
Article 11(6), first subparagraph |
|
Article 11(6), fourth sentence |
Article 11(6), second subparagraph |
|
Article 11(6), fifth sentence |
Article 11(6), third subparagraph |
|
Article 11(7) |
Article 11(7) |
|
Article 11(8), first, second and third subparagraph |
Article 11(8), first, second and third subparagraph |
|
Article 11(8), fourth subparagraph, first and second sentence |
Article 11(8), fourth subparagraph |
|
Article 11(8), fourth subparagraph, third sentence |
Article 11(8), fifth subparagraph |
|
Article 11(8), fourth subparagraph, fourth sentence |
Article 11(8), sixth subparagraph |
|
Article 11(9) and (10) |
Article 11(9) and (10) |
|
Article 12 |
Article 12 |
|
Article 13(1), first subparagraph, first sentence |
Article 13(1), first subparagraph |
|
Article 13(1), first subparagraph, second sentence |
Article 13(1), second subparagraph |
|
Article 13(1), first subparagraph, third sentence |
Article 13(1), third subparagraph |
|
Article 13(1), second subparagraph |
Article 13(1), fourth subparagraph |
|
Article 13(2) and (3) |
Article 13(2) and (3) |
|
Article 13(4), first subparagraph, first sentence |
Article 13(4), first subparagraph |
|
Article 13(4), first subparagraph, second sentence |
Article 13(4), second subparagraph |
|
Article 13(4), first subparagraph, third sentence |
Article 13(4), third subparagraph |
|
Article 13(4), first subparagraph, fourth sentence |
Article 13(4), fourth subparagraph |
|
Article 13(4), second subparagraph |
Article 13(4), fifth subparagraph |
|
Article 13(4), third subparagraph |
Article 13(4), sixth subparagraph |
|
Article 13(4), fourth subparagraph |
Article 13(4), seventh subparagraph |
|
Article 13(5) |
Article 13(5) |
|
Article 14(1), first and second sentence |
Article 14(1), first subparagraph |
|
Article 14(1), third sentence |
Article 14(1), second subparagraph |
|
Article 14(2), first sentence |
Article 14(2), first subparagraph |
|
Article 14(2), second, third and fourth sentence |
Article 14(2), second subparagraph |
|
Article 14(3) |
Article 14(3) |
|
Article 14(4), first and second sentence |
Article 14(4), first subparagraph |
|
Article 14(4), third and fourth sentence |
Article 14(4), second subparagraph |
|
Article 14(5), (6) and (7) |
Article 14(5), (6) and (7) |
|
Articles 15 and 16 |
Articles 15 and 16 |
|
Article 17(1), (2) and (3) |
Article 17(1), (2) and (3) |
|
Article 17(4), first sentence |
Article 17(4), first subparagraph |
|
Article 17(4), second sentence |
Article 17(4), second subparagraph |
|
Article 18(1), first sentence |
Article 18(1), first subparagraph |
|
Article 18(1), second sentence |
Article 18(1), second subparagraph |
|
Article 18(1), third sentence |
Article 18(1), third subparagraph |
|
Article 18(2) to (6) |
Article 18(2) to (6) |
|
Article 19(1) to (5) |
Article 19(1) to (5) |
|
Article 19(6), first sentence |
Article 19(6), first subparagraph |
|
Article 19(6), second sentence |
Article 19(6), second subparagraph |
|
Article 20(1), (2) and (3) |
Article 20(1), (2) and (3) |
|
Article 20(4), first, second and third sentence |
Article 20(4), first subparagraph |
|
Article 20(4), fourth sentence |
Article 20(4), second subparagraph |
|
Article 20(5) |
Article 20(5) |
|
Articles 21 and 22 |
Articles 21 and 22 |
|
Article 22a |
Article 23 |
|
Article 23 |
Article 24 |
|
Article 24 |
Article 25 |
|
Annex I |
— |
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Annex II |
— |
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— |
Annex I |
|
— |
Annex II |
( 1 ) Commission Implementing Regulation (EU) 2015/2447 of 24 November 2015 laying down detailed rules for implementing certain provisions of Regulation (EU) No 952/2013 of the European Parliament and of the Council laying down the Union Customs Code (OJ L 343, 29.12.2015, p. 558).
( 2 ) Regulation (EU) 2015/755 of the European Parliament and of the Council of 29 April 2015 on common rules for imports from certain third countries (OJ L 123, 19.5.2015, p. 33).
( 3 ) Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code (OJ L 269, 10.10.2013, p. 1).
( 4 ) Council Regulation (EC) No 1667/2006 of 7 November 2006 on glucose and lactose (OJ L 312, 11.11.2006, p. 1).
( 5 ) Council Regulation (EC) No 614/2009 of 7 July 2009 on the common system of trade for ovalbumin and lactalbumin (OJ L 181, 14.7.2009, p. 8).
( 6 ) Council Regulation (EC) No 1216/2009 of 30 November 2009 laying down the trade arrangements applicable to certain goods resulting from the processing of agricultural products (OJ L 328, 15.12.2009, p. 10).
( 7 ) OJ L 123, 12.5.2016, p. 1.