Application of the antidumping customs duties in the EU: current legal practice
In the context of economic shocks or crises, protectionist measures are often used to regulate economic activity and international trade and they are aimed towards protecting the interests of the internal market and domestic producers. We can see similar trends in the current situation worldwide. For example, as the international economy declined and the negative economic consequences, related to the Covid-19 pandemic became obvious, the European Union (EU) imposed new antidumping customs duties (amounting to more than 18% tariff) on steel products imported from China, Indonesia and Taiwan [1], as well as increased duties on many types of products imported from the USA [2], started new trade defence investigations against Turkey [3].
These trends are not new from a historical point of view, for example, the global financial crisis that began in 2007-2008 has also reinforced protectionist economic policy trends, which were based, inter alia, on the application of higher levels (tariffs) of customs duties to tax international trade operations. In this way, at the beginning of the 21st century, the number of trade defence investigations [4] increased in both the EU and the rest of the World, existing customs tariffs were increased or new customs duties were introduced [4], and tariff preferences were reviewed and withdrawn [5]. Thus, as we can see, one of the main regulatory measures that are applied in similar situations are customs duties, the impact of which on the regulation of international trade is considered to be extremely important, because, in addition to performing the fiscal function, they also have a protective effect. In individual cases, such as in the cases of imposition of trade defence duties (to protect the domestic market and domestic industry from the effects of imports of foreign goods), their application may lead to the emergence of significant barriers to international trade, as trade defence duties (tariffs) are generally sufficiently higher compared to other types of customs duties. They can reach up to 100 per cent or even more when the average rate of conventional customs duties does not exceed as much as 5 per cent ([3]; [6]). For this reason, the question of the possibilities of protection of the business entities, exporter‘s and importer‘s rights as well as legitimate interests in cases of application of such duties becomes critical and the possibilities of challenging them remain very important and will be discussed in this article, by analyzing judicial practice in the tax disputes in the EU courts, and, in particular, national courts in the EU Member States, namely, the Republic of Lithuania.
The EU anti-dumping duty regime and its main features:
Trade defence duties, the main type of which are known as anti-dumping duties, are imposed to reduce the flow of imports from countries that engage in unfair foreign/international trade practices. Their application, which is also permitted by international trade law (WTO law), as already mentioned, involves additional taxation of those businesses that supply goods originating in the foreign country in question to the domestic market of another country at an unfair price, to the material detriment of domestic producers competing on the same market.These provisions are also directly reflected in EU law, for example in Article 207(1) of the Treaty on the Functioning of the EU, which states that inter alia „the common commercial policy is based on […] trade defence measures, such as those applicable in the event of dumping or subsidies“. It should be noted that EU customs law recognises as unfair those international trade practices that lead to significant market distortions, which necessitate the application of Union industrial protection measures (trade defence duties), see e.g. Regulation (EU) 2017/2321 of the European Parliament and of the Council of 12 December 2017 and its preamble.
In accordance with the provisions of EU customs law currently in force, and pursuant to the provisions of Articles 1(1) and 3(1) of the EU Regulation 2016/1036 “on protection against dumped imports from countries not members of the European Union”, an anti-dumping duty may be imposed on any product not originating in the Union which is put into free circulation in the Union by a trader to the detriment of, or threatened with detriment to, the Union industry. In turn, the occurrence of the injury or threat thereof is linked (causally) to the sale of the dumped product, i. e. in cases of dumping: where the export price to the Union is below the comparable price of the like product, in the ordinary course of trade, in the exporting country (Article 1(2), Article 2 ‘Determination of dumping’ of Regulation No 2016/1036). This means that the EU can impose anti-dumping measures (duties) under three essential cumulative conditions if: (i) a finding of dumping; (ii) the existence of material injury (or threat thereof) to the Union industry is established; (c) there is a causal link between dumping and the injury (or threat thereof) to the Union industry. Following an investigation, and in accordance with the above general provisions of EU Regulation No 2016/1036 and the conditions set out therein, the EU Commission is empowered to adopt implementing Regulations concerning the imposition of a specific anti-dumping duty and the level of the duty to be imposed on a case-by-case basis (under the specific conditions of imports from a third country). It should be noted that the case-law of the Court of Justice of the EU (CJEU) draws attention to the fact that the list of the conditions referred to is, in principle, of a mandatory and exhaustive nature, with the emphasis on the fact that it is not necessary to prove the existence of the other mandatory conditions, such as wilful intent on the part of the exporter [7].
As can be seen from an analysis of the case law of the CJEU, which recognises that interested parties have the right to challenge the imposition of such duties, both before the national courts of the Member States and (in individual cases) directly before the CJEU [8], the main legal challenges to the imposition of anti-dumping duties are related to the identification of the existence of three of the abovementioned conditions (the existence of the dumping, the existence of material injury and the existence of a causal link). In this context, it is the correct determination of the fact of dumping itself and the related amounts (dumping margin or dumping margin) and its legal regulation (as defined in Article 2 of the EU Regulation 2016/1036) that deserves special attention. This is primarily due to the fact that the process is complex and involves the making of three assessments based on mathematical calculations and the analysis of economic data: the determination of the normal value of the product (which varies according to the exporting country’s status: WTO membership, the conditions under which it operates as a market economy, and so on), the determination of the export price of the product,[9] and the comparison of the price of the exported product with the normal value of the product [10]. Secondly, it should be noted that the amount of the definitive anti-dumping duties is directly linked to the last assessment, i.e. the comparison between the price of the exported product and the normal value of the product, or the determination/calculation of the dumping margin (see Article 9(4) of the EU Regulation No 2016/1036). [11]
Grounds for challenging anti-dumping duties imposed by the EU and legal options:
It should be noted that, as confirmed by the case law of the CJEU and the disputes it has examined in recent years concerning the anti-dumping duties imposed by the EU (the EU legislation imposing such duties, i.e., the Regulations), a part of these disputes was undoubtedly due to the specific methodology applied by the EU for the determination of anti-dumping duties, which was based on the use of comparative data of third countries other than the domestic market of the country of the imported goods in calculating the normal value of the goods imported (the normal value of the goods imported) (EU Regulation (EC) No. 1225/2009 and (EU) 2016/1036, Article 2. 7 d. paragraph “b”). It should be noted that the possibility of applying such special exemptions is also provided for in the customs legislation currently adopted and in force in the EU (Regulation (EU) 2017/2321, Art. paragraph 6a). In many of the disputes concerning the application of anti-dumping duties, it is precisely the legality and reasonableness of this methodology for the imposition of anti-dumping duties and the calculation of the amount of anti-dumping duties that has been and is being questioned, in particular in cases where the goods have been imported from the People’s Republic of China, which is the country to which, in particular, the EU has applied this methodology. It should be noted that in disputes of this nature, the CJEU has referred to the practice of the WTO dispute settlement bodies (WTO Dispute DS516, European Union — Measures Related to Price Comparison Methodologies; DS405, European Union — Anti-Dumping Measures on Certain Footwear from China), substantially rejected the possibility to impose a generalised anti-dumping duty on all entities in the People’s Republic of China (irrespective of their individual business circumstances). For example, the CJEU has emphasised the need to determine the duty on an individual basis, in respect of each specific foreign producer or exporter, even though this obligation has not always been respected by the EU institutions adopting legislation on the imposition of anti-dumping duties, or has been interpreted in a very flexible or abstract manner (see. e.g. CJEU cases C-659/13 and C-34/14, C & J Clark International Ltd v. Commissioners for Her Majesty’s Revenue & Customs ir Puma SE Hauptzollamt Nürnberg). Thus, in cases where anti-dumping duties have been imposed, the question of the basis on which the level of the duty has been determined and the entities to which it has been applied is always relevant for the purpose of challenging those duties. Moreover, it is also clear that disputes of this nature are always likely to raise questions as to the compatibility of the anti-dumping duty regulations adopted by the EU with WTO law and the practice of the WTO Dispute Settlement Bodies, which can also be considered as one of the possible grounds for legal disputes (see. ESTT bylas C-638/11 P, Taryba v. Gul Ahmed Textile Mills; C-533/10, Compagnie internationale pour la vente à distance (CIVAD) SA v. Receveur des douanes de Roubaix ir kt.; bylą C-239/15 P, RFA International v. Komisija).
With regard to other, more specific aspects of the application of anti-dumping duties, which have been the subject of litigation before the CJEU in recent years (see e.g. Cases C-191/09 P, C-239/15 P, C-638/11 P), it is necessary to draw attention to the manner in which the indicators of dumping (normal value, export price, dumping margin) were calculated, which are used for the purpose of the duty. It should be noted that the norms of the current EU Regulation No 2016/1036 on protection against dumped imports from countries not members of the European Union (e.g., the provisions of Article 2 of the EU Regulation) do not lay down any rules as to how, in the context of an ongoing investigation for the imposition of anti-dumping duties, the burden of proof should be allocated between the institutions of the European Union and the persons (parties) interested in the proceedings, in order to substantiate the circumstances on which the calculation of the dumping and the methodological basis is based. For this reason, questions of the allocation of the burden of proof or breach of the procedure for taking evidence are particularly frequently contested at the judicial stage of such disputes. For example, the CJEU has clarified in a number of cases that, in the process of gathering evidence and taking evidence, the Union institutions must take into account the procedural requirements relating to compliance with the principle of proportionality, the proper assessment of evidence, and the guarantee of the right to be heard of the parties involved in the investigation(s) (see e.g. bylas C-15/12 P, Dashiqiao Sanqiang Refractory Materials v. Taryba, sprendimo 18 punktą; taip pat žr. bylą C-552/10 P, Usha Martin prieš Tarybą ir Komisiją, sprendimo 32, 34-36 punktus). In addition, the application of EU legislation governing the valuation of like products/goods, relevant for the determination of the effect of dumping on the domestic prices of goods (Article 1(4) of the EU Regulation 2016/1036) or the recognition of the manufacturer’s/exporter’s costs for the purpose of calculating the normal value of a good (Article 2(5) of the EU Regulation 2016/1036), has also been a frequent subject of dispute. It should be pointed out that the provisions of EU customs law currently referred to are not identical to those of WTO law, i. e. The provisions of the Agreement on Implementation of Article VI of the GATT, as the CJEU has repeatedly pointed out (see e.g. bylas C‑232/14, Portmeirion Group; T-235/08, Acron and Dorogobuzh v. Council).
The CJEU has also repeatedly pointed out that procedural aspects of the imposition of anti-dumping duties can also be challenged in relation to: (i) the procedure for adopting, amending or reviewing decisions of the Union institutions; (ii) ensuring the rights of defence of interested parties (whose interests are affected or affected by the imposition of trade defence duties); (iii) compensation for damage caused by the unlawful collection of trade defence duties and repayment of duties paid (see CJEU cases C-15/12 P, C-552/10 P, C-205/16 P, C-205/16 P, C-205/16 P, C-204/16 P, C-365/15, C-365/15, C-667/11, C-143/14, C-374/12, C-419/08 and C-533/10). A particularly important general problematic aspect of the application of anti-dumping duties is that the Union institutions have traditionally been and still are vested with a very wide discretion in deciding on the imposition, amendment and review of anti-dumping duties (see EU Regulation No. However, the increasing number of disputes on these issues (see e.g. Cases C-191/09 P, C-239/15 P, C-638/11 P CJEU) would in principle encourage a revision of the existing decision-making framework, linking it more closely to objective criteria which would be binding on the Union institutions when deciding on these issues. It should be noted that an additional problematic aspect related to the above-mentioned issues is the issue of redress and the reimbursement of anti-dumping duties paid in cases where they have been collected in accordance with Union legislation found to be illegal. It should be noted that there are no detailed EU customs rules in these areas (the general provisions of the Treaty on the Functioning of the European Union (TFEU) are used). Accordingly, the correct application of these institutions depends for the time being only on the CJEU’s own case-law, which is not always clear and consistent (e.g. in cases concerning the interpretation of the conditions for the occurrence of damages, see e.g. case C-419/08 P).
Concluding remarks and conclusions
To summarise the above-mentioned CJEU case-law, it should be noted that when faced with the application of anti-dumping duties and the EU regulations imposing them, interested parties always have the theoretical as well as the practical possibility of challenging the validity of the application of the duty itself, as well as the structure of the calculation of the duty, and the elements thereof, not only in the courts of the European Union, but also before the domestic courts of the EU Member States (see, e.g. CJEU Cases C-374/12, C-533/10, C-205/16 P, C-204/16 P). It should be noted that such disputes have also arisen in the Republic of Lithuania (see e.g. However, other disputes of this kind in Lithuania have usually been limited not to the procedure of calculation of the anti-dumping duty itself, but to the challenge of the proper application of other general factors for the determination of the anti-dumping duty (e.g., classification, origin, value of goods). Therefore, persons who are obliged to pay anti-dumping duties for goods imported to the Republic of Lithuania, which are more and more frequently imposed by the EU in the current conditions, have other, additional and not yet sufficiently actively applied, legal options to protect their rights and legitimate interests before the national institutions dealing with tax disputes.
Sources and literature
[1] „EU puts anti-dumping duties on stainless steel from China, Indonesia and Taiwan“, REUTERS, https://www.reuters.com/article/us-eu-steel-dumping/eu-puts-anti-dumping-duties-on-stainless-steel-from-china-indonesia-and-taiwan-idUSKCN21T0GY?il=0;
[3] Juozas Radžiukynas ir kt., ES bendroji prekybos politika [EU‘s Common Commercial Policy] (Vilnius: MRU, 2011), 235;
[4] Miho Araki et al., International Trade after the Economic Crisis: Challenges and New Opportunities (Geneva: United Nations, 2010), 6;
[5] Prabodh Seth, „The Impact of the Global Economic Crisis on Customs“, World Customs Journal3, 2 (2009): 136;
[6] Igor Bagayev et al., „Non-Tariff Barriers, Enforcement, and Revenues: The Use of Anti-Dumping as a Revenue Generating Trade Policy“, UCD Centre for Economic Research Working Paper Series, 6 (2017), 22;
[7] See. bylą T-274/02, Ritek Corp. ir Prodisc. Technology Inc v. Council of the European Union, 2006 E.C.R. II-04305;
[9] The export price is the price actually paid or payable for the product when sold for export from the exporting country to the EU, see. see. Regulation (EU) 2016/1036 of the European Parliament and of the Council on protection against dumped imports from countries not members of the European Union (codified version) (2016), (Art. 2(8) – (9));
[10] The amount by which the normal value of a product exceeds its export price is known as the dumping margin (or margin), and dumping can only be established when the dumping margin is positive, i.e. the normal value exceeds the export price, see recital (1). Juozas Radžiukynas et al, EU Common Commercial Policy (Vilnius: MRU, 2011), 199.
[11] The calculation of the dumping margin percentage used for the determination of the anti-dumping duties can be expressed provisionally in the formula ((A – B) / D) x 100, where A is the normal value of the product, B is the export price of the product, and D is the cif export price of the product (the export price, adjusted by the exporter’s transport and insurance costs, see recital (1). Edmond McGovern, European Community Anti-Dumping and Trade Defence Law and Practice (Tosham, Exeter: Globefield Press, 2018), 25.1.
Notes:
The original version of this article was published on the author’s personal account on LinkedIn (18 April 2020) and on TeisėPro(18 April 2020):
Disputes regarding legality of the EU‘s antidumping customs duties: situation and experience in the EU Member States (the Republic of Lithuania)
Application of the antidumping customs duties in the EU: current legal practice
In the context of economic shocks or crises, protectionist measures are often used to regulate economic activity and international trade and they are aimed towards protecting the interests of the internal market and domestic producers. We can see similar trends in the current situation worldwide. For example, as the international economy declined and the negative economic consequences, related to the Covid-19 pandemic became obvious, the European Union (EU) imposed new antidumping customs duties (amounting to more than 18% tariff) on steel products imported from China, Indonesia and Taiwan [1], as well as increased duties on many types of products imported from the USA [2], started new trade defence investigations against Turkey [3].
These trends are not new from a historical point of view, for example, the global financial crisis that began in 2007-2008 has also reinforced protectionist economic policy trends, which were based, inter alia, on the application of higher levels (tariffs) of customs duties to tax international trade operations. In this way, at the beginning of the 21st century, the number of trade defence investigations [4] increased in both the EU and the rest of the World, existing customs tariffs were increased or new customs duties were introduced [4], and tariff preferences were reviewed and withdrawn [5]. Thus, as we can see, one of the main regulatory measures that are applied in similar situations are customs duties, the impact of which on the regulation of international trade is considered to be extremely important, because, in addition to performing the fiscal function, they also have a protective effect. In individual cases, such as in the cases of imposition of trade defence duties (to protect the domestic market and domestic industry from the effects of imports of foreign goods), their application may lead to the emergence of significant barriers to international trade, as trade defence duties (tariffs) are generally sufficiently higher compared to other types of customs duties. They can reach up to 100 per cent or even more when the average rate of conventional customs duties does not exceed as much as 5 per cent ([3]; [6]). For this reason, the question of the possibilities of protection of the business entities, exporter‘s and importer‘s rights as well as legitimate interests in cases of application of such duties becomes critical and the possibilities of challenging them remain very important and will be discussed in this article, by analyzing judicial practice in the tax disputes in the EU courts, and, in particular, national courts in the EU Member States, namely, the Republic of Lithuania.
The EU anti-dumping duty regime and its main features:
Trade defence duties, the main type of which are known as anti-dumping duties, are imposed to reduce the flow of imports from countries that engage in unfair foreign/international trade practices. Their application, which is also permitted by international trade law (WTO law), as already mentioned, involves additional taxation of those businesses that supply goods originating in the foreign country in question to the domestic market of another country at an unfair price, to the material detriment of domestic producers competing on the same market. These provisions are also directly reflected in EU law, for example in Article 207(1) of the Treaty on the Functioning of the EU, which states that inter alia „the common commercial policy is based on […] trade defence measures, such as those applicable in the event of dumping or subsidies“. It should be noted that EU customs law recognises as unfair those international trade practices that lead to significant market distortions, which necessitate the application of Union industrial protection measures (trade defence duties), see e.g. Regulation (EU) 2017/2321 of the European Parliament and of the Council of 12 December 2017 and its preamble.
In accordance with the provisions of EU customs law currently in force, and pursuant to the provisions of Articles 1(1) and 3(1) of the EU Regulation 2016/1036 “on protection against dumped imports from countries not members of the European Union”, an anti-dumping duty may be imposed on any product not originating in the Union which is put into free circulation in the Union by a trader to the detriment of, or threatened with detriment to, the Union industry. In turn, the occurrence of the injury or threat thereof is linked (causally) to the sale of the dumped product, i. e. in cases of dumping: where the export price to the Union is below the comparable price of the like product, in the ordinary course of trade, in the exporting country (Article 1(2), Article 2 ‘Determination of dumping’ of Regulation No 2016/1036). This means that the EU can impose anti-dumping measures (duties) under three essential cumulative conditions if: (i) a finding of dumping; (ii) the existence of material injury (or threat thereof) to the Union industry is established; (c) there is a causal link between dumping and the injury (or threat thereof) to the Union industry. Following an investigation, and in accordance with the above general provisions of EU Regulation No 2016/1036 and the conditions set out therein, the EU Commission is empowered to adopt implementing Regulations concerning the imposition of a specific anti-dumping duty and the level of the duty to be imposed on a case-by-case basis (under the specific conditions of imports from a third country). It should be noted that the case-law of the Court of Justice of the EU (CJEU) draws attention to the fact that the list of the conditions referred to is, in principle, of a mandatory and exhaustive nature, with the emphasis on the fact that it is not necessary to prove the existence of the other mandatory conditions, such as wilful intent on the part of the exporter [7].
As can be seen from an analysis of the case law of the CJEU, which recognises that interested parties have the right to challenge the imposition of such duties, both before the national courts of the Member States and (in individual cases) directly before the CJEU [8], the main legal challenges to the imposition of anti-dumping duties are related to the identification of the existence of three of the abovementioned conditions (the existence of the dumping, the existence of material injury and the existence of a causal link). In this context, it is the correct determination of the fact of dumping itself and the related amounts (dumping margin or dumping margin) and its legal regulation (as defined in Article 2 of the EU Regulation 2016/1036) that deserves special attention. This is primarily due to the fact that the process is complex and involves the making of three assessments based on mathematical calculations and the analysis of economic data: the determination of the normal value of the product (which varies according to the exporting country’s status: WTO membership, the conditions under which it operates as a market economy, and so on), the determination of the export price of the product,[9] and the comparison of the price of the exported product with the normal value of the product [10]. Secondly, it should be noted that the amount of the definitive anti-dumping duties is directly linked to the last assessment, i.e. the comparison between the price of the exported product and the normal value of the product, or the determination/calculation of the dumping margin (see Article 9(4) of the EU Regulation No 2016/1036). [11]
Grounds for challenging anti-dumping duties imposed by the EU and legal options:
It should be noted that, as confirmed by the case law of the CJEU and the disputes it has examined in recent years concerning the anti-dumping duties imposed by the EU (the EU legislation imposing such duties, i.e., the Regulations), a part of these disputes was undoubtedly due to the specific methodology applied by the EU for the determination of anti-dumping duties, which was based on the use of comparative data of third countries other than the domestic market of the country of the imported goods in calculating the normal value of the goods imported (the normal value of the goods imported) (EU Regulation (EC) No. 1225/2009 and (EU) 2016/1036, Article 2. 7 d. paragraph “b”). It should be noted that the possibility of applying such special exemptions is also provided for in the customs legislation currently adopted and in force in the EU (Regulation (EU) 2017/2321, Art. paragraph 6a). In many of the disputes concerning the application of anti-dumping duties, it is precisely the legality and reasonableness of this methodology for the imposition of anti-dumping duties and the calculation of the amount of anti-dumping duties that has been and is being questioned, in particular in cases where the goods have been imported from the People’s Republic of China, which is the country to which, in particular, the EU has applied this methodology. It should be noted that in disputes of this nature, the CJEU has referred to the practice of the WTO dispute settlement bodies (WTO Dispute DS516, European Union — Measures Related to Price Comparison Methodologies; DS405, European Union — Anti-Dumping Measures on Certain Footwear from China), substantially rejected the possibility to impose a generalised anti-dumping duty on all entities in the People’s Republic of China (irrespective of their individual business circumstances). For example, the CJEU has emphasised the need to determine the duty on an individual basis, in respect of each specific foreign producer or exporter, even though this obligation has not always been respected by the EU institutions adopting legislation on the imposition of anti-dumping duties, or has been interpreted in a very flexible or abstract manner (see. e.g. CJEU cases C-659/13 and C-34/14, C & J Clark International Ltd v. Commissioners for Her Majesty’s Revenue & Customs ir Puma SE Hauptzollamt Nürnberg). Thus, in cases where anti-dumping duties have been imposed, the question of the basis on which the level of the duty has been determined and the entities to which it has been applied is always relevant for the purpose of challenging those duties. Moreover, it is also clear that disputes of this nature are always likely to raise questions as to the compatibility of the anti-dumping duty regulations adopted by the EU with WTO law and the practice of the WTO Dispute Settlement Bodies, which can also be considered as one of the possible grounds for legal disputes (see. ESTT bylas C-638/11 P, Taryba v. Gul Ahmed Textile Mills; C-533/10, Compagnie internationale pour la vente à distance (CIVAD) SA v. Receveur des douanes de Roubaix ir kt.; bylą C-239/15 P, RFA International v. Komisija).
With regard to other, more specific aspects of the application of anti-dumping duties, which have been the subject of litigation before the CJEU in recent years (see e.g. Cases C-191/09 P, C-239/15 P, C-638/11 P), it is necessary to draw attention to the manner in which the indicators of dumping (normal value, export price, dumping margin) were calculated, which are used for the purpose of the duty. It should be noted that the norms of the current EU Regulation No 2016/1036 on protection against dumped imports from countries not members of the European Union (e.g., the provisions of Article 2 of the EU Regulation) do not lay down any rules as to how, in the context of an ongoing investigation for the imposition of anti-dumping duties, the burden of proof should be allocated between the institutions of the European Union and the persons (parties) interested in the proceedings, in order to substantiate the circumstances on which the calculation of the dumping and the methodological basis is based. For this reason, questions of the allocation of the burden of proof or breach of the procedure for taking evidence are particularly frequently contested at the judicial stage of such disputes. For example, the CJEU has clarified in a number of cases that, in the process of gathering evidence and taking evidence, the Union institutions must take into account the procedural requirements relating to compliance with the principle of proportionality, the proper assessment of evidence, and the guarantee of the right to be heard of the parties involved in the investigation(s) (see e.g. bylas C-15/12 P, Dashiqiao Sanqiang Refractory Materials v. Taryba, sprendimo 18 punktą; taip pat žr. bylą C-552/10 P, Usha Martin prieš Tarybą ir Komisiją, sprendimo 32, 34-36 punktus). In addition, the application of EU legislation governing the valuation of like products/goods, relevant for the determination of the effect of dumping on the domestic prices of goods (Article 1(4) of the EU Regulation 2016/1036) or the recognition of the manufacturer’s/exporter’s costs for the purpose of calculating the normal value of a good (Article 2(5) of the EU Regulation 2016/1036), has also been a frequent subject of dispute. It should be pointed out that the provisions of EU customs law currently referred to are not identical to those of WTO law, i. e. The provisions of the Agreement on Implementation of Article VI of the GATT, as the CJEU has repeatedly pointed out (see e.g. bylas C‑232/14, Portmeirion Group; T-235/08, Acron and Dorogobuzh v. Council).
The CJEU has also repeatedly pointed out that procedural aspects of the imposition of anti-dumping duties can also be challenged in relation to: (i) the procedure for adopting, amending or reviewing decisions of the Union institutions; (ii) ensuring the rights of defence of interested parties (whose interests are affected or affected by the imposition of trade defence duties); (iii) compensation for damage caused by the unlawful collection of trade defence duties and repayment of duties paid (see CJEU cases C-15/12 P, C-552/10 P, C-205/16 P, C-205/16 P, C-205/16 P, C-204/16 P, C-365/15, C-365/15, C-667/11, C-143/14, C-374/12, C-419/08 and C-533/10). A particularly important general problematic aspect of the application of anti-dumping duties is that the Union institutions have traditionally been and still are vested with a very wide discretion in deciding on the imposition, amendment and review of anti-dumping duties (see EU Regulation No. However, the increasing number of disputes on these issues (see e.g. Cases C-191/09 P, C-239/15 P, C-638/11 P CJEU) would in principle encourage a revision of the existing decision-making framework, linking it more closely to objective criteria which would be binding on the Union institutions when deciding on these issues. It should be noted that an additional problematic aspect related to the above-mentioned issues is the issue of redress and the reimbursement of anti-dumping duties paid in cases where they have been collected in accordance with Union legislation found to be illegal. It should be noted that there are no detailed EU customs rules in these areas (the general provisions of the Treaty on the Functioning of the European Union (TFEU) are used). Accordingly, the correct application of these institutions depends for the time being only on the CJEU’s own case-law, which is not always clear and consistent (e.g. in cases concerning the interpretation of the conditions for the occurrence of damages, see e.g. case C-419/08 P).
Concluding remarks and conclusions
To summarise the above-mentioned CJEU case-law, it should be noted that when faced with the application of anti-dumping duties and the EU regulations imposing them, interested parties always have the theoretical as well as the practical possibility of challenging the validity of the application of the duty itself, as well as the structure of the calculation of the duty, and the elements thereof, not only in the courts of the European Union, but also before the domestic courts of the EU Member States (see, e.g. CJEU Cases C-374/12, C-533/10, C-205/16 P, C-204/16 P). It should be noted that such disputes have also arisen in the Republic of Lithuania (see e.g. However, other disputes of this kind in Lithuania have usually been limited not to the procedure of calculation of the anti-dumping duty itself, but to the challenge of the proper application of other general factors for the determination of the anti-dumping duty (e.g., classification, origin, value of goods). Therefore, persons who are obliged to pay anti-dumping duties for goods imported to the Republic of Lithuania, which are more and more frequently imposed by the EU in the current conditions, have other, additional and not yet sufficiently actively applied, legal options to protect their rights and legitimate interests before the national institutions dealing with tax disputes.
Sources and literature
[1] „EU puts anti-dumping duties on stainless steel from China, Indonesia and Taiwan“, REUTERS, https://www.reuters.com/article/us-eu-steel-dumping/eu-puts-anti-dumping-duties-on-stainless-steel-from-china-indonesia-and-taiwan-idUSKCN21T0GY?il=0;
[2] „EU targets more U.S. imports after U.S. metal tariff extension“, investing.com, https://www.investing.com/news/commodities-news/eu-targets-more-us-imports-after-us-metal-tariff-extension-2132072;
[3] Juozas Radžiukynas ir kt., ES bendroji prekybos politika [EU‘s Common Commercial Policy] (Vilnius: MRU, 2011), 235;
[4] Miho Araki et al., International Trade after the Economic Crisis: Challenges and New Opportunities (Geneva: United Nations, 2010), 6;
[5] Prabodh Seth, „The Impact of the Global Economic Crisis on Customs“, World Customs Journal3, 2 (2009): 136;
[6] Igor Bagayev et al., „Non-Tariff Barriers, Enforcement, and Revenues: The Use of Anti-Dumping as a Revenue Generating Trade Policy“, UCD Centre for Economic Research Working Paper Series, 6 (2017), 22;
[7] See. bylą T-274/02, Ritek Corp. ir Prodisc. Technology Inc v. Council of the European Union, 2006 E.C.R. II-04305;
[8] Žr. See in this regard the author’s article: Gediminas Valantiejus, “Keletas remarks on the procedure for challenging anti-dumping duties in the EU and Lithuania: recent European Court of Justice case law and its legal consequences”, TeisėPro, http://www.teise.pro/index.php/2019/10/29/g-valantiejus-keletas-pastabu-del-antidempingo-muitu-gincijimo-tvarkos-es-ir-lietuvoje-naujausia-europos-teisingumo-teismo-praktika-bei-jos-teisines-pasekmes/;
[9] The export price is the price actually paid or payable for the product when sold for export from the exporting country to the EU, see. see. Regulation (EU) 2016/1036 of the European Parliament and of the Council on protection against dumped imports from countries not members of the European Union (codified version) (2016), (Art. 2(8) – (9));
[10] The amount by which the normal value of a product exceeds its export price is known as the dumping margin (or margin), and dumping can only be established when the dumping margin is positive, i.e. the normal value exceeds the export price, see recital (1). Juozas Radžiukynas et al, EU Common Commercial Policy (Vilnius: MRU, 2011), 199.
[11] The calculation of the dumping margin percentage used for the determination of the anti-dumping duties can be expressed provisionally in the formula ((A – B) / D) x 100, where A is the normal value of the product, B is the export price of the product, and D is the cif export price of the product (the export price, adjusted by the exporter’s transport and insurance costs, see recital (1). Edmond McGovern, European Community Anti-Dumping and Trade Defence Law and Practice (Tosham, Exeter: Globefield Press, 2018), 25.1.
Notes:
The original version of this article was published on the author’s personal account on LinkedIn (18 April 2020) and on TeisėPro (18 April 2020):