The Vulnerability of EU Anti-Dumping Measures Against China after December 11, 2016

Abstract

The purpose of this paper, first, is to serve as a reminder that the European Union will violate its WTO obligations under the WTO Anti-Dumping Agreement (ADA) if EU anti-dumping investigators continue to apply ‘non-market economy’ (NME) treatment of Chinese exports in AD investigations under Section 15 of China’s Accession Protocol (CAP) to the WTO and the EU Anti-Dumping Regulation (ADR) after December 11, 2016. Moreover, the ADR, “as such”, will be vulnerable to legal challenge in the WTO dispute settlement mechanism if it is not brought into compliance with the WTO AD Agreement by that date. These observations, however, do not prejudge the legality of EU anti-dumping measures – “as applied” - that the EU has (or will have) adopted against Chinese producers prior to the December deadline. The post-2016 legality of already existing EU anti-dumping measures that are “not based on a strict comparison with domestic prices or costs in China” is particularly relevant in context of the rising amount of new EU AD measures and investigations against Chinese producers of steel and solar panels that the EU has imposed and initiated in the last 2 years. It is this very question that is subject to analysis and discussion in the second part of this paper. The third part provides for a brief normative assessment of the systemic implications and legally viable alternatives to EU non-compliance with the WTO Anti-Dumping Agreement.