European Union – draft amendments to the basic anti-dumping regulation concerning methodologies of normal value determination

Questions Posed by the russian federation Regarding THE proposal for the eu
basic anti-dumping regulation concerning determination of normal value

The following communication, dated 26 April 2017, is being circulated at the request of the Delegation of the Russian Federation.

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The Russian Federation kindly asks the European Union to provide responses to the following questions concerning the Proposal for the EU Basic Anti-Dumping Regulation^[1] (hereinafter – "Proposal").

1.         The text of the Proposal covers targeted amendments to the New Basic Anti-Dumping Regulation with respect to the mechanism of normal value determination. Please explain what are the reasons and intentions for changing the provisions of calculation of normal value.

2.         As it is stated in Recital (2) of the Proposal, "in view of developments with respect to certain countries that are Members of the WTO, it is appropriate that, for those countries normal value should be determined on the basis of paragraphs 1 to 6a of Article 2 of Regulation (EU) 2016/1036". Please clarify what countries and what developments this Recital refers to? Please also clarify, whether this Recital refers only to the countries that are currently treated by the EU as non-market economy countries. In particular, whether the provisions of this Recital will be applied to any of the Member States of the Eurasian Economic Union that are WTO Members. Should the Recital refer not only to the countries currently treated by the EU as non-market economy countries, please explain what other countries it refers to and what developments in them are meant.

3.         According to Article 6a(a) of the Proposal there might be cases when "it is not appropriate to use domestic prices and costs in the exporting country due to the existence of significant distortions". Further below this Article provides for the circumstances where these "significant distortions" may be deemed to exist. Please clarify what criteria are going to be used in order to evaluate the "significance" of such "distortions"?

4.         As it follows from the Explanatory Memorandum to the Proposal, "[t]he circumstances prevailing in certain countries that are members of the WTO and the experience gathered from the case-law make it appropriate to amend the methodology used to determine the normal value and the dumping margin", which would allow to construct normal value on the basis of "costs of production and sale in an appropriate representative country". Please clarify whether the case law referred to in this provision is the case law of EU judiciary system or the WTO case law? Should the latter be correct, please specify the cases and the exact provisions of the WTO case law that allow the use of methodologies envisaged by the Proposal.

5.         According to the Explanatory Memorandum to the Proposal, the proposed methodology of normal value calculation "would allow the Commission to establish and measure the actual magnitude of dumping being practiced in normal market conditions absent distortions". Please explain the meaning of the notions "actual magnitude of dumping" and "normal market conditions absent distortions". Please describe the methodology that is envisaged by the Commission's drafters in order to evaluate "actual magnitude of dumping" and "normal market conditions absent distortions".

6.         As it is provided for in Article 6a(c) of the Proposal, the European Commission "may issue a report describing the specific situation concerning the criteria listed in point (b) in a certain country or a certain sector". Interested parties may "rely on the report and the evidence on which it is based".

Please, explain:

a.    what is the purpose of introducing provisions enabling the Commission to issue such a report;

b.    how would the Commission, should the amendments be adopted, ensure unbiased and accurate assessment of evidence provided by the interested parties based on the report?

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