(Appeal– Dumping– Implementing Regulation (EU) 2017/804– Imports of certain seamless pipes and tubes originating in China– Definitive anti-dumping duty– Regulation (EU) 2016/1036

WTO law

2By Council Decision 94/800/EC of 22December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986‑1994) (OJ 1994 L336, p.1), the Council of the European Union approved the Agreement establishing the World Trade Organisation (WTO), signed in Marrakesh on 15April 1994, and also the agreements in Annexes1 to 3 to that agreement, which include the Agreement on Implementation of ArticleVI of the General Agreement on Tariffs and Trade 1994 (OJ 1994 L336, p.103, ‘the Anti‑Dumping Agreement’).

3Article3 of the Anti-Dumping Agreement, entitled ‘Determination of injury’, provides:

‘3.1A determination of injury for purposes of ArticleVI [of the General Agreement on Tariffs and Trade (GATT) 1994] shall be based on positive evidence and involve an objective examination of both (a) the volume of the dumped imports and the effect of the dumped imports on prices in the domestic market for like products, and (b) the consequent impact of these imports on domestic producers of such products.

3.2… With regard to the effect of the dumped imports on prices, the investigating authorities shall consider whether there has been a significant price undercutting by the dumped imports as compared with the price of a like product of the importing Member, or whether the effect of such imports is otherwise to depress prices to a significant degree or prevent price increases, which otherwise would have occurred, to a significant degree. No one or several of these factors can necessarily give decisive guidance.

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3.5It must be demonstrated that the dumped imports are, through the effects of dumping, as set forth in paragraphs2 and 4, causing injury within the meaning of this Agreement. The demonstration of a causal relationship between the dumped imports and the injury to the domestic industry shall be based on an examination of all relevant evidence before the authorities. The authorities shall also examine any known factors other than the dumped imports which at the same time are injuring the domestic industry, and the injuries caused by these other factors must not be attributed to the dumped imports.…

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The basic regulation

4Recital3 of Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8June 2016 on protection against dumped imports from countries not members of the European Union (OJ 2016 L176, p.21, ‘the basic regulation’), provides:

‘In order to ensure a proper and transparent application of the rules of the… Anti‑Dumping Agreement, the language of that agreement should be reflected in Union legislation to the best extent possible.’

5Article1 of the basic regulation, entitled ‘Principles’, provides:

‘1.An anti-dumping duty may be imposed on any dumped product whose release for free circulation in the Union causes injury.

2.A product is to be considered as being dumped if its export price to the Union is less than a comparable price for a like product, in the ordinary course of trade, as established for the exporting country.

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4.For the purposes of this Regulation, “like product” means a product which is identical, that is to say, alike in all respects, to the product under consideration, or, in the absence of such a product, another product which, although not alike in all respects, has characteristics closely resembling those of the product under consideration.’

6Article2 of that regulation, entitled ‘Determination of dumping’, is worded as follows:

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D.Dumping margin

11.Subject to the relevant provisions governing fair comparison, the existence of margins of dumping during the investigation period shall normally be established on the basis of a comparison of a weighted average normal value with a weighted average of prices of all export transactions to the Union, or by a comparison of individual normal values and individual export prices to the Union on a transaction-to-transaction basis. However, a normal value established on a weighted average basis may be compared to prices of all individual export transactions to the Union, if there is a significant difference in the pattern of export prices among different purchasers, regions or time periods, and if the methods specified in the first sentence of this paragraph would not reflect the full degree of dumping being practised. This paragraph shall not preclude the use of sampling in accordance with Article17.

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7Article3 of the basic regulation, entitled ‘Determination of injury’, provides:

‘1.Pursuant to this Regulation, the term “injury” shall, unless otherwise specified, be taken to mean material injury to the Union industry, threat of material injury to the Union industry or material retardation of the establishment of such an industry and shall be interpreted in accordance with the provisions of this Article.

2.A determination of injury shall be based on positive evidence and shall involve an objective examination of both:

(a)the volume of the dumped imports and the effect of the dumped imports on prices in the Union market for like products; and

(b)the consequent impact of those imports on the Union industry.

3.With regard to the volume of the dumped imports, consideration shall be given to whether there has been a significant increase in dumped imports, either in absolute terms or relative to production or consumption in the Union. With regard to the effect of the dumped imports on prices, consideration shall be given to whether there has been significant price undercutting by the dumped imports as compared with the price of a like product of the Union industry, or whether the effect of such imports is otherwise to depress prices to a significant degree or prevent price increases, which would otherwise have occurred, to a significant degree. No one or more of those factors can necessarily give decisive guidance.

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5.The examination of the impact of the dumped imports on the Union industry concerned shall include an evaluation of all relevant economic factors and indices having a bearing on the state of the industry… .

6.It must be demonstrated, from all the relevant evidence presented in relation to paragraph2, that the dumped imports are causing injury within the meaning of this Regulation. Specifically, that shall entail demonstrating that the volume and/or price levels identified pursuant to paragraph3 are responsible for an impact on the Union industry as provided for in paragraph5, and that that impact exists to a degree which enables it to be classified as material.

7.Known factors, other than the dumped imports, which at the same time are injuring the Union industry shall also be examined to ensure that the injury caused by those other factors is not attributed to the dumped imports under paragraph6.…

8.The effect of the dumped imports shall be assessed in relation to the production of the Union industry of the like product when available data permit the separate identification of that production on the basis of criteria such as the production process, producers’ sales and profits.…

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8Article4 of that regulation, entitled ‘Definition of Union industry’, states:

‘1.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, as defined in Article5(4), of the total Union production of those products;…

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4.The provisions of Article3(8) shall be applicable to this Article.’

9Article17 of the basic regulation, entitled ‘Sampling’, provides:

‘1.In cases where the number of complainants, exporters or importers, types of product or transactions is large, the investigation may be limited to a reasonable number of parties, products or transactions by using samples which are statistically valid on the basis of information available at the time of the selection, or to the largest representative volume of production, sales or exports which can reasonably be investigated within the time available.

2.The final selection of parties, types of products or transactions made under these sampling provisions shall rest with the Commission, though preference shall be given to choosing a sample in consultation with, and with the consent of, the parties concerned, provided that such parties make themselves known and make sufficient information available, within three weeks of initiation of the investigation, to enable a representative sample to be chosen.

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