Interim review

What is an interim review?

Countervailing measures are usually imposed for five years. If circumstances change, however, interested parties may ask for a review:

• EU countries and the Commission: at any time
• any exporter, importer, authorities of an exporting country or EU producer concerned: only after the measures have been in force for one year.

An interim review can cover subsidisation, injury and Community interest (full interim review), or be limited to just one aspect, e.g. subsidisation (partial interim review).

Interim review procedure

To request an interim review, contact the Commission in writing, stating the reasons for the review and providing prima facie evidence substantiating the need for it.

If the Commission accepts the request, it will then publish a Notice of Initiation in the EU’s Official Journal and send out questionnaires to interested parties, just as in the original investigation. A review should be concluded within 12 months – 15 months at most.

What is looked at in a review?

This depends on the reason for the review. Often the request concerns the level of the duty in force – an exporter or the government of the exporting country may claim that the amount of subsidy has fallen, for example, in which case the subsidy margin is recalculated for a new investigation period.

The Commission will also investigate whether or not the change in circumstances is lasting. If it is not, then the duty rate would not normally be changed. Similar considerations would apply if the government of the exporting country claimed that the subsidy had been abolished altogether.

Interested parties wishing to request a review should contact us providing prima facie evidence of their claim.

New Exporter Review

What is a new exporter review?

• Anti-subsidy measures are usually imposed for five years.
• Imports from companies that cooperated with the investigation are usually liable for their own individual duty, but there is also a 'country-wide' duty for imports from all other companies producing and exporting the product concerned to the EU, which will often be higher than the individual duty.

If a company starts exporting the product to the EU after the investigation, then its goods will be subject to the 'country-wide' duty.

Companies that either did not exist, or did not export to the EU during the original investigation, can request a new exporter review to have their own individual duty rate established.

To qualify as a 'new exporter', a company must not have been individually investigated during the original investigation for reasons other than a refusal to cooperate.

If a company appears to meet this criterion, a review will be opened.

Interested parties wishing to claim to be treated as a new exporter should contact us for more information on the procedure.

Absorption

Duties are said to be absorbed when, after anti-dumping or countervailing duties have been imposed, export prices decrease or the resale prices of the imported goods do not increase sufficiently, so the measures do not have the expected effect.

What is an anti-absorption re-investigation?

When there is evidence of duties being absorbed, the original trade defence investigation may be re-opened at the request of any interested party (EU producer, exporter, importer, user), EU country or the Commission.

The re-investigation is initiated by publishing a Notice in the EU’s Official Journal, normally within two years of the original measures being imposed. It should take no more than nine months to complete.

What can be done?

The re-investigation gives exporters, importers, EU producers and users the opportunity to explain the export prices and EU resale prices. If the conclusion is that the duties should have resulted in price changes that did not take place, the dumping margins can be recalculated and the duties increased up to double the rate of the original duty.

What law is applied here?

Article 12 of the basic anti-dumping Regulation and Article 19(3) of the basic anti-subsidy Regulation.

How to proceed

Any interested party (EU industry, exporter, importer, user) which finds evidence of absorption of duties can either lodge a complaint with the European Commission (Directorate General for Trade, Directorate H) or inform national authorities, who may ask for the investigation to be reopened.

Circumvention

What is circumvention?

In essence, circumvention is any activity designed to avoid the payment of countervailing duties imposed on a particular product manufactured in and/or exported from a non-EU country.

These practices can best be understood through examples:

• slightly modifying a product so that it can be classified under a combined nomenclature (CN) code that is not subject to duties
• falsely declaring that a product originated in a country not subject to duties
• exporting through a producer with a lower duty rate
• exporting a product in parts and having it assembled in the EU, where the parts are not subject to duties.

For a practice to qualify as circumvention, there must also be evidence that:

• EU industry is being harmed or the duty’s effects are being undermined in terms of prices and/or quantities of the product in question, and;
• evidence that the imported product and/or parts thereof still benefit from the subsidy.

If a company is circumventing the duties in force, what can be done?

The Commission may open an investigation if sufficient evidence of circumvention is provided by:

• an interested party, or;
• an EU country, and;
• the Commission believes one is warranted.

The first step in an investigation is the publication of a Regulation in the EU’s Official Journal. Customs authorities will then begin registering all imports alleged to be circumventing the measures. This enables them to impose a duty retroactively, should circumvention be found.

What is the result of the investigation?

If it is determined that circumvention has taken place, the duties in force will be extended to imports from the country or company found to be circumventing them. The duties then apply retroactively from the date on which the investigation began.

What about exporters in the country concerned that are not circumventing the duties?

The Regulation opening the investigation clearly states that companies not engaging in circumvention must contact the Commission by a specific deadline and provide information and evidence proving that they are not related to any producer subject to measures, nor engaged in circumvention themselves.

The Commission can then propose that individual companies be exempted from registration of their imports and/or the extension of duties. When circumvention takes place in the EU, exemptions may be also granted to importers.

Expiry review

What is an expiry review?

Countervailing measures are normally imposed for a fixed period of five years. After that, they automatically expire unless a review demonstrates a need for them to be continued.

An 'expiry review' can be launched either at the request of producers in the EU, or on the initiative of the Commission. Any request for a review must be accompanied by evidence that the expiry of measures would be likely to result in a continuation or recurrence of subsidisation and injury, for example:

• evidence of continued subsidisation and injury;
• evidence that the removal of injury is only due to the measures in force, and/or;
• evidence that further subsidisation and injury is likely if the measures are repealed.

What is the procedure?

In the final year of the measures, the Commission publishes a Notice of Impending Expiry in the EU’s Official Journal. Community producers may then request a review no later than three months before the measures are due to expire.

If no review request is received, the Commission publishes a Notice of Expiry announcing that the measures will lapse at the end of the five-year period.

If it receives a substantiated request for review, the Commission publishes a Notice of Initiation of an expiry review and starts an investigation to examine both subsidisation and injury. An expiry review should normally be completed within 12 months – 15 months at most.

Following an expiry review, the duties are either repealed or maintained – in which case they will normally remain in force for a further five years. An expiry review cannot lead to a change in the level or form of duty – this can be accomplished only through an interim review.

Changes of name, address or legal status for companies subject to an individual duty

Companies subject to an individual duty and mentioned by name in the operative part of an anti-dumping regulation and that change their name and/or address should contact us immediately.

If the name and address details in the regulation imposing the measures are not identical to the name and address on the export documents, difficulties may arise with customs formalities. The Commission will verify the data and inform the company if it needs more information. Details of the new name/address will be published in the EU’s Official Journal.

Companies undergoing a more complex structural change such as a merger or takeover should also contact us to determine whether the changes require a change of name or a partial interim review.