European Business Law, the fourth volume in our series, shows how the European authorities simultaneously abolish all restrictions on access to and exercise of economic activities and support the growth of domestic markets, through the harmonization the internal legislation or the enactment of genuinely unified regulations.

European Business Law

Where the conditions of circumvention seem to be met, an anti-circumvention investigation may be initiated by the Commission, on its initiative or at the request of any interested party or a Member State, through a regulation after consultation of the Advisory Committee (Regulation No 2016/1036, Article 13(3)) . The investigation, initiated by Commission regulation, which may be conducted with the assistance of the customs authorities, must be concluded within nine months. In the initiating regulation, the Commission may instruct the customs authorities to make imports subject to registration or to request guarantees . When the facts justify the extension of measures, this is decided by the Commission according to the examination procedure of Article 15(3). The extension of anti-dumping duties to imports at issue takes effect from the date on which registration was imposed or on which guarantees were requested . 

Imports may be exempted from extension where the parts are not imported for purposes of circumvention (exempted assembler)  or they are imported in too small quantities by small operators - for example as substitution - to truly undermine the anti-dumping duty in force (de minimis clause). A conditional exemption may be granted where parts are declared for free circulation by, or on behalf of, an assembler which is subject to examination by the Commission . Where the exemption is granted, imports will not be submitted to registration or to other measures (Art. 13(4)) . It is the task of the EU institutions to establish that anti-dumping measures are being circumvented in respect of the third country in question as a whole, whereas it is for each individual producer-exporter to show that its particular situation justifies an exemption pursuant to Article 13(4) of the regulation . Exemption may be granted during the circumvention investigation or after the investigation having resulted in the extension of the duty . The general rules applying to anti-dumping investigations, regarding in particular the conduct of investigations, verification visits, non-cooperation , confidentiality, and the procedural rights of the parties concerned, apply to the procedures of request for exemption . 

The regulation specifies in fine that the provisions of the anti-dumping regulation relating to the initiation and conduct of the investigation apply.

Council Regulation (EU) No 1905/2003 of 27 October 2003, imports of furfuryl alcohol originating in the People's Republic of China, LawLex200900002535JBJ, which considers that in order to minimize the risk of circumvention due to the substantial level of non-cooperation (40%) and the high difference in the amounts of definitive duties instituted, special provisions may be taken such as the presentation to the customs authorities of the Member States of a valid commercial invoice, which is to conform to the requirements set out in the annex to the definitive regulation, under penalty of application of the residual anti-dumping duty.

Council Regulation (EU) No 1023/2003 of 13 June 2003, imports of certain malleable cast iron tube or pipe fittings (Brazil, Argentina), LawLex200900002546JBJ: where circumvention is established, the existing anti-dumping measures are extended to the same products consigned from the not concerned third country, whether declared as originating in that country or not, and apply from the date of registration of their import established, in this case, by the regulation initiating the anti-circumvention investigation.

See Council Regulation (EU) No 1623/2003 of 11 September 2003, imports of certain zinc oxides (China), LawLex200900002539JBJ, which considers that where the circumvention takes place outside the Union, the exemption of exporters which have not exported the product concerned during the investigation period and are not related to any exporters or producers subject to the extended anti-dumping duty, may be granted after the assessment of the market situation of the product concerned, production capacity and capacity utilization, procurement and sales, and taking into account the likelihood of practices for which there is insufficient due cause or economic justification and the evidence of dumping.

Commission Regulation (EC) No 88/97 of 20 January 1997, imports of certain bicycle parts originating in the People's Republic of China, LawLex200900002785JBJ; See, also, Council Regulation (EU) No 71/97 of 10 January 1997, imports of bicycles and certain bicycle parts (China), LawLex200900002414JBJ, point 34 et seq., which constitutes the 'reference regulation' which explains in detail the system of grant and delivery of certificates of non-circumvention.

See, for an example of interruption from import registration after the exporting producer succeeded in showing that there was no circumvention: Commission Regulation (EC) No 2593/2001 of 28 December 2001, imports of glyphosate (Taiwan, Malaysia), LawLex200900002816JBJ.

Cases C-248/15-P, C-254-15/P, C-260/15-P Maxcom Ltd v City Cycle Industries, Judgment of 26 January 2017, LawLex201700000228JBJ.

The entry into force of the exemption therefore depends on when it was requested: where it was requested during the investigation, the exemption comes into force from the date of initiation of the circumvention investigation; where the request is submitted after extension of the duty, the exemption comes into force from the date of the request.

Case C-21/13 Simon, Evers & Co, Judgment of 4 September 2014, LawLex201400000843JBJ: where there is a complete refusal to cooperate with the circumvention investigation, the Commission is entitled to act on the basis of the evidence available in order to find the existence of a practice, process or work in a third country aiming solely at the circumvention of the antidumping duty affecting imports originating in another third country. It is for the parties concerned to prove that there are reasonable grounds justifying those activities, other than avoiding the anti-dumping duty. See also Cases C-247/15 P, C-253/15 P, C-259-15 P Maxcom Ltd, Judgment of 26 January 2017, LawLex201700000231JBJ, specifying that there is no legal presumption whereby it is possible to infer the existence of circumvention directly from the non-cooperation of an interested party and Cases C-248/15-P, C-254-15/P, C-260/15-P Maxcom Ltd v City Cycle Industries, Judgment of 26 January 2017, LawLex201700000228JBJ, finding that, with regard to the standard of proof required to demonstrate circumvention where there is insufficient or indeed no cooperation on the part of producer-exporters, that there is no provision in the basic regulation which confers on the Commission, in an investigation to establish whether there has been circumvention, the power to compel producers or exporters which are the subject of a complaint to participate in the investigation or to provide information and therefore the Commission is reliant on the voluntary cooperation of the interested parties to provide it with the necessary information.

Commission Regulation (EC) No 88/97 of 20 January 1997, imports of certain bicycle parts originating in the People's Republic of China, LawLex200900002785JBJ.

482. Anti-circumvention procedure