Thanh Nien Daily continues a bimonthly column in which eminent jurists analyze various aspects of business and investment laws. The column appears on the second and fourth Fridays of the month.

EU antidumping proceedings follow the rules set forth in a Council Regulation on protection against dumped or subsidized imports from outside the European Community (the EU Antidumping Regulation).

The EU Antidumping Regulation implements the WTO Antidumping Agreement.

An EU antidumping proceeding has three phases: (1) complaint and initiation; (2) investigation and provisional measures; and (3) end of proceeding.

Complaint and initiation

Complaint

The first prerequisite for an EU antidumping proceeding is a written complaint addressed to the European Commission (the Commission).

Any person or association acting on behalf of a Community industry that considers itself injured or threatened by dumped imports may file a complaint (the complainant).

Initiation

If it determines that the complaint contains sufficient evidence to initiate a proceeding, the Commission must immediately take the following measures:

• announce the initiation of the proceeding in the Official Journal;

• advise known foreign exporters and EU importers of subject merchandise as well as representatives of the exporting country and the complainants;

• institute an investigation of dumping and injury to EU producers of subject merchandise.

Investigation and provisional measures

The second phase of the antidumping proceeding begins when the investigation of dumping and injury is initiated.

During the investigation period, the Commission may impose provisional duties against subject merchandise.

Investigation

The Commission begins an investigation by sending questionnaires to all foreign exporters, EU importers, EU producers and others known by the Commission to be interested in the investigation.

It also will send questionnaires to companies or associations that respond to the notice of initiation in the Official Journal and wish to participate.

The questionnaires are comprehensive.

They require a responding company to submit detailed information on its corporate organization and financial performance, as well as sale by sale information regarding its exports of the product concerned to the EU and (in the case of “market economy” treatment) detailed cost and home market sales data.

If the company seeks “individual treatment” or “market economy treatment,” it also must answer a separate questionnaire regarding government involvement in the company’s business decisions.

Answering these questionnaires can be very burdensome, particularly given the number of components involved in manufacturing complex products.

Companies may submit a memorandum explaining their views on the proceeding together with the questionnaire.

After examining questionnaire responses, the Commission under-takes onsite inspections in order to verify questionnaire responses.

A team of EU officials working on the case will travel to the exporting producer’s premises to verify the accuracy of the responses.

After the onsite inspections, interested parties usually invoke their rights under the EU Antidumping Regulation to obtain access to the files of the Commission, be informed by the Commission on the preliminary findings, and have a hearing.

Upon request, the Commission sometimes will organize meetings among parties directly involved so that opposing views can be presented and rebuttals made.

The investigation must normally be concluded within one year of the initiation of the proceeding, but no later than 15 months.

Provisional measures

The Commission may impose a provisional antidumping duty if a preliminary examination shows that dumping exists and there is sufficient evidence of injury.

Provisional duties may be imposed up to nine months after initiation.

The Commission normally does not impose provisional antidumping duties prior to onsite inspections.

End of proceeding

An antidumping proceeding can be terminated in one of three ways:

• Conclusion without measures: The investigation may be concluded without the imposition of duties and without the acceptance of any undertakings.

This may occur where (a) the dumping margin is found to be “de minimis” (less than 2 percent); (b) the Commission issues a negative determination regarding injury; (c) the Commission finds that imposition of measures will not be in the Community interest; or (d) the complaint is withdrawn.

• Measures imposed: Definitive antidumping duties will be imposed only if the Commission finds (a) dumping at a level above de minimis, (b) injury or threat of injury to the Community industry that is caused by the dumping, and (c) that the Community interest calls for intervention.

The decision to impose measures is not taken by the Commission, but by the Council of Ministers based on a proposal by the Commission and after consultation with EU member-states.

• Undertakings: Even if the Commission proposes definitive measures, a company’s exports may not be subject to those duties, if the Commission accepts (and the Council approves) an “undertaking.” An undertaking is an agreement on the company’s part to sell above a “non-injurious” price, sometimes subject to a quantity quota.

Such agreements may be beneficial to exporters.

In particular, an undertaking allows the company to retain the benefit of any increase in its prices.

Definitive antidumping measures should expire five years after their imposition.

However, the Commission may continue imposition of duties beyond five years if it determines that expiry is likely to lead to continuation or recurrence of dumping and injury.

Importers, foreign producers, EU producers, the Commission and member-states can all request interim reviews to determine whether definitive duties should be changed or revoked prior to the end of the five-year period.