Anti-dumping and anti-subsidy measures are the most important elements of the European Union's trade defence instruments. Since the beginning of the European integration process, they have been used to combat trade practices which are considered "unfair" and their distortive effects on competition in the internal market. However, while the imposition of trade defence measures aims to level the playing field between EU producers and their foreign competitors, it also produces negative effects on competition itself.Based on the role attributed to competition and trade defence policy respectively throughout the European integration process, this book argues that the trading bloc's trade defence instruments should not be designed or applied with the objective of granting maximum protection to EU producers, but that their use should be limited to what is necessary to ensure fairness in competition between EU producers and exporting producers.However, an analysis of the changes made to the European Union's Basic Anti-Dumping Regulation and the Basic Anti-Subsidy Regulation by the Trade Defence Modernisation Package reveals that several aspects of the European Union's modernised trade defence instruments do not meet this requirement. Rather than being limited to offsetting the unfair competitive advantages of producers practicing dumping or benefiting from subsidies, the reformed provisions go beyond this, distorting competition in favour of the EU industry instead. Furthermore, the book critically assesses the reformed rules relating to the integration of social and environmental aspects in the imposition of anti-dumping or anti-subsidy measures as well as the modernised basic regulations’ compatibility with WTO law.
Author(s): Patricia Trapp
Series: European Yearbook of International Economic Law, 23
Publisher: Springer
Year: 2022
Language: English
Pages: 348
City: Cham
Acknowledgments
Contents
Abbreviations
Chapter 1: Introduction
1.1 The Changing Landscape of International Trade
1.2 Research Question
1.3 Scope
1.4 Structure
References
Chapter 2: Competition and Commercial Policy in the European Treaties
2.1 Introduction
2.2 The Treaty of Paris
2.2.1 Competition Policy in the Treaty of Paris
2.2.2 Trade Policy in the Treaty of Paris
2.3 The Treaty of Rome
2.3.1 Competition Policy in the Treaty of Rome
2.3.2 Trade Policy in the Treaty of Rome
2.4 The Treaty of Lisbon
2.4.1 Competition Policy in the Treaty of Lisbon
2.4.1.1 The Amendments to Competition Policy Introduced by the Treaty of Maastricht
2.4.1.2 The Repeal of Article 3 (1) lit. g) EC Treaty
2.4.1.3 The Repeal of Article 4 EC Treaty
2.4.1.4 The Inclusion of the Term `Social Market Economy´
2.4.2 Trade Policy in the Treaty of Lisbon
2.5 Chapter Conclusions
References
Chapter 3: The Legal Framework Governing EU Competition and Trade Defence Law
3.1 Introduction
3.2 Competition Law
3.2.1 Institutional Structure
3.2.2 Article 101 TFEU: Prohibition of Agreements Between Undertakings Restricting Competition
3.2.2.1 The Elements of Article 101 (1) TFEU
3.2.2.1.1 Undertakings as Addressees
3.2.2.1.2 Agreement, Decision and Concerted Practice
3.2.2.1.3 Object or Effect of the Prevention, Restriction or Distortion of Competition
3.2.2.1.4 The de minimis Doctrine
3.2.2.1.4.1 Appreciable Effect on Trade Between the Member States
3.2.2.1.4.2 Appreciable Effect on Competition
3.2.2.2 Nullity According to Article 101 (2) TFEU
3.2.2.3 The Exception Contained in Article 101 (3) TFEU
3.2.3 Article 102 TFEU: Abuse of a Dominant Position
3.2.3.1 Dominant Undertakings as Addressees
3.2.3.2 Market Definition
3.2.3.2.1 The Relevant Product Market
3.2.3.2.2 The Relevant Geographic Market
3.2.3.2.3 The Temporal Market
3.2.3.3 Dominant Position
3.2.3.4 Abuse
3.2.3.5 Defence
3.2.3.6 Effect on Trade Between the Member States
3.2.4 Merger Control
3.3 Law of Trade Defence Instruments
3.3.1 Introduction
3.3.2 Institutional Structure
3.3.3 The Basic Anti-dumping Regulation
3.3.3.1 Dumping
3.3.3.1.1 Normal Value
3.3.3.1.2 Export Price
3.3.3.1.3 Comparison
3.3.3.1.4 Dumping Margin
3.3.3.2 Determination of Injury to the Union Industry
3.3.3.2.1 Product Definition
3.3.3.2.1.1 The `Product Concerned´ Analysis
3.3.3.2.1.2 The `Like Product´ Analysis
3.3.3.2.2 Union Industry
3.3.3.2.3 Injury
3.3.3.3 Causality
3.3.3.4 Union Interest
3.3.3.5 Relief
3.3.3.5.1 Anti-dumping Duties
3.3.3.5.2 Undertakings
3.3.4 The Basic Anti-subsidy Regulation
3.3.4.1 Subsidised Product
3.3.4.1.1 Subsidisation
3.3.4.1.2 Countervailability
3.3.4.1.3 Determination of the Amount of Subsidisation
3.3.4.2 Determination of Injury to the Union Industry and Causality
3.3.4.3 Union Interest
3.3.4.4 Relief
3.3.4.4.1 Countervailing Duties
3.3.4.4.2 Undertakings
3.3.5 The Trade Defence Modernisation Package
References
Chapter 4: The Objectives of EU Competition Law and Trade Defence Law
4.1 Introduction
4.2 The Objectives of EU Competition Law
4.2.1 Welfare Standard
4.2.1.1 The Promotion of Consumers´ Welfare
4.2.1.2 The Promotion of Societal Welfare
4.2.1.3 The Role of Efficiency
4.2.2 Market Integration
4.2.3 Ensuring Effective Competition on the Internal Market
4.2.4 Promoting Fair Competition
4.2.4.1 Procedural Fairness
4.2.4.2 Substantive Fairness
4.2.5 Conclusions
4.3 The Objectives of EU Trade Defence Law
4.3.1 The Objectives and Principles Governing the Common Commercial Policy
4.3.1.1 Integration of the Common Commercial Policy Into the Wider Plane of the EU´s External Action by the Treaty of Lisbon
4.3.1.2 Free and Fair Trade
4.3.1.2.1 Free Trade
4.3.1.2.2 Fair Trade
4.3.1.3 The Specific Objectives and Principles Governing the EU´s Common Commercial Policy
4.3.1.3.1 Trade Liberalisation
4.3.1.3.1.1 Scope
4.3.1.3.1.2 Content
4.3.1.3.2 Uniformity
4.3.2 The Objectives of the EU´s Trade Defence Instruments
4.3.2.1 Trade Defence Instruments as a Part of the Common Commercial Policy
4.3.2.2 The Economic Rationale Behind Trade Defence Instruments
4.3.2.3 The Legal Rationale Behind Trade Defence Instruments
4.3.2.3.1 Compensating for the Differences Between National and International Trade
4.3.2.3.2 Contributing to the Protection of Competition on the Internal Market
4.3.2.3.2.1 Common Roots and Present Disparities
4.3.2.3.2.2 Protecting Fair Competition on the Internal Market
4.3.2.3.2.3 Restoring Effective Competition on the Internal Market
4.3.2.3.3 Welfare Standard
4.3.3 Conclusions
4.4 Chapter Conclusions
References
Chapter 5: Terminological Overlaps and Conceptual Differences in the Concepts Used in EU Competition and Trade Defence Law
5.1 Introduction
5.2 Differences Concerning Market Definition
5.2.1 The Relevant Product Market
5.2.2 The Relevant Geographic Market
5.3 Differences Concerning the Authors of Practices Falling Within the Scope of EU Competition and Trade Defence Law
5.3.1 No Coordination Between the Exporters Required
5.3.2 No Market Power of the Exporters Required
5.4 Differences Concerning Pricing Practices
5.4.1 Discriminatory Pricing
5.4.1.1 The Prohibition of Geographical Price Discrimination in EU Competition Law
5.4.1.2 Dumping as a Form of Transnational Price Discrimination
5.4.1.3 Lack of Comparability
5.4.2 Predatory Pricing
5.4.2.1 Competition Law
5.4.2.1.1 The AKZO-Test
5.4.2.1.2 The Commission´s Guidance
5.4.2.1.3 Justification
5.4.2.2 Anti-dumping Law
5.4.2.2.1 Comparing Price Levels
5.4.2.2.2 Pricing Below Cost and the `Ordinary Course of Trade´-Requirement
5.4.2.2.3 No Predatory Intent Necessary
5.5 Chapter Conclusions
References
Chapter 6: The Impact of the Trade Defence Modernisation Package on the Relationship Between the EU´s Trade Defence Instrument...
6.1 Introduction
6.2 The Anti-competitive Effects of Trade Defence Proceedings
6.2.1 General Restrictions to Competition
6.2.2 Specific Restrictions to Competition
6.2.2.1 Restrictions Related to the Initiation of Proceedings: Preparation of an Anti-dumping Complaint
6.2.2.1.1 Information Exchanges as an Infringement of Article 101 (1) TFEU
6.2.2.1.2 Filing of a Complaint as an Infringement of Article 102 TFEU
6.2.2.1.3 The Changes Introduced by the Trade Defence Modernisation Package
6.2.2.1.4 Conclusions and Further Considerations
6.2.2.2 Restrictions Related to the Imposition of Measures
6.2.2.2.1 Undertakings
6.2.2.2.1.1 Potential Restrictions to Competition
6.2.2.2.1.2 Commission Practice
6.2.2.2.1.3 The Changes Introduced by the Trade Defence Modernisation Package
6.2.2.2.1.4 Conclusions and Further Considerations
6.2.2.2.2 Duties
6.2.2.2.2.1 Potential Restrictions to Competition
6.2.2.2.2.2 Commission Practice
6.2.2.2.2.3 The Changes Introduced by the Trade Defence Modernisation Package
6.2.2.2.2.4 Conclusions and Further Recommendations
6.3 Chapter Conclusions
References
Chapter 7: The Impact of the Trade Defence Modernisation Package on the Relationship Between the EU´s Trade Defence Instrument...
7.1 Introduction
7.2 Identifying the Protectionist Bias
7.2.1 Ex officio Initiations of Investigations
7.2.2 The New Non-standard Methodology for Constructing Normal Value in Anti-dumping Investigations
7.2.2.1 The Criteria Used in Establishing the Existence of Significant Distortions
7.2.2.2 The Evidence Used in Establishing the Existence of Significant Distortions
7.2.2.3 The Benchmarks Used in Constructing Normal Value
7.2.2.4 Commission Practice
7.2.2.5 Conclusions
7.2.3 Protectionism in the Level of Measures Imposed: The Changed Scope of Application of the Lesser Duty Rule and the Reforme...
7.2.3.1 The Lesser Duty Rule
7.2.3.1.1 The Lesser Duty Rule as a Central Feature of the Basic Regulations
7.2.3.1.2 The Changes Introduced by the Trade Defence Modernisation Package
7.2.3.1.3 Commission Practice
7.2.3.1.3.1 Urea and Ammonium Nitrate
7.2.3.1.3.2 Hot Rolled Stainless Steel
7.2.3.1.4 Conclusions and Further Recommendations
7.2.3.2 Injury Margin Calculation: Systematic Inaccuracies and Protectionist Tendencies
7.2.3.2.1 The `Undercutting´ and the `Underselling´ Methodology
7.2.3.2.2 The Modifications Introduced by the Trade Defence Modernisation Package
7.2.3.2.2.1 The Introduction of a de minimis Target Profit
7.2.3.2.2.2 A General `Increase of Imports from the Country Under Investigation´
7.2.3.2.2.3 The Level of Profitability Needed to Cover Full Costs and Investments, Research and Development and Innovation
7.2.3.2.2.4 Social and Environmental Standards
Defining the ratione materiae
Overlaps with EU State Aid Law
Double Compensation as a Result of Subsidies Granted by Third States
Lack of Transparency
7.2.3.2.3 Conclusions and Further Recommendations
7.2.4 The Union Interest in the Basic Regulations
7.2.4.1 Legislative History and Structure of the Union Interest Test
7.2.4.2 The Interests Taken into Consideration
7.2.4.2.1 Competition Concerns During the Union Interest Analysis
7.2.4.2.2 Competition Concerns During the Injury Analysis
7.2.4.2.3 Environmental Policy Concerns
7.2.4.3 The New Union Interest Test
7.2.4.4 Conclusions and Further Recommendations
7.3 Chapter Conclusions
References
Chapter 8: The EU´s Modernised Trade Defence Instruments: Promoting Sustainable Development in the EU´s Trade Relations?
8.1 Introduction
8.2 The Integration of Non-Economic Concerns in the EU´s Common Commercial Policy
8.2.1 Bilateral Trade Policy Instruments
8.2.2 Unilateral Trade Policy Instruments
8.3 Trade Defence Instruments as a Novel Instrument for the Promotion of Sustainable Development Objectives
8.3.1 Legal Context
8.3.2 Compatibility with the EU´s Approach for Promoting Sustainable Development in Its Trade Relations
8.3.2.1 Tenuous Link Between Market Access and Compliance with International Environmental and Labour Law Standards
8.3.2.1.1 The Amendments to the Basic Regulations
8.3.2.1.2 Possible Changes to the Interests Considered During the Union Interest Test
8.3.2.1.2.1 Legal Basis
8.3.2.1.2.2 Contribution to the International Promotion of Sustainable Development
8.3.2.2 No Clear Focus on the Promotion of Sustainable Development in the EU´s Trading Partners in Applying the EU´s Trade Def...
8.3.2.3 No Dialogue Between the EU and Its Trading Partners
8.3.2.4 Difference in Standards
8.4 Chapter Conclusions
References
Chapter 9: Compatibility of the Reformed Basic Regulations with WTO Law
9.1 Introduction
9.2 Issues Relating to the New Non-Standard Methodology for Constructing Normal Value in Anti-Dumping Investigations
9.2.1 Dumping Margin Calculation
9.2.1.1 Rejection of Domestic Prices Pursuant to Article 2.2 ADA
9.2.1.2 Calculation of Normal Value Pursuant to Article 2.2.1.1 ADA
9.2.2 The EU´s Contentious Approach to `Input Dumping´
9.2.3 The Issue of `Double Counting´
9.3 Issues Relating to the Inclusion of Social and Environmental Standards
9.3.1 Compatibility with the Anti-dumping-Agreement
9.3.2 Compatibility with the Agreement on Subsidies and Countervailing Measures
9.4 Compatibility with Article I:1 GATT 1994
9.5 Chapter Conclusions
References
Chapter 10: Conclusions
Sources
Table of Cases
Courts of the European Union
Advocate General Opinions
WTO Adjudicative Bodies
International Treaties
International
World Trade Organization
European Union
European Union Legislation
Publications by the EU Institutions
European Commission
European Parliament
European Council
Council of the European Union
European Court of Auditors
