Trade Defence Instruments for European producers: the AD questionnaire

Introduction

 As a member of the World Trade Organization, the European Union (“EU” or “Union”) stands for free and fair trade. At its disposal, it has trade defence – or trade remedy – instruments (“TDI”) for unilateral action when EU industries face unfair competition from imports. The most relevant TDI are anti-dumping (“AD”), anti-subsidy (“AS”) and safeguard measures. AD and AS attempt to restore fairness and a level playing field, addressing unfair trade practices such as exporting to the EU below home market price (AD) or benefiting from trade-distorting export subsidies (AS) while safeguards are available to mitigate on an emergency basis the injurious effects of unexpected surges in imports.

Dumping exists when manufacturers from a non-EU country sell goods in the EU below the sales prices in their domestic market or below the cost of production. Following a complaint from the Union’s producers, the European Commission (“Commission”) will investigate the foreign producers from the country that allegedly sells dumped products into the EU, before imposing AD duties onto exporters. The Commission also needs to verify the existence of injury, or threat thereof, to the EU industry. Therefore, during the investigation, the Commission issues questionnaires to all interested parties, i.e., complainants, respondents from the targeted countries and EU importers and users.  When there are many, the Commission samples the most important ones for detailed investigation.  The most relevant aspects of the questionnaire issued to the sampled Union producers are summarized below.

General purpose of the antidumping questionnaire for Union producers

The antidumping questionnaire sent to the sampled Union producers is the key instrument used by the Commission to investigate the existence of injury or threat thereof.  More specifically, the existence of injury or threat thereof is investigated by:

 Selecting a sample of Union producers which is deemed to be representative of the broader Union industry. These sampled Union producers are requested to complete the antidumping questionnaire; and

 Analysis is then undertaken of a series of so-called micro-economic indicators that may have arisen from the data submitted by the sampled producers. These economic indicators are:

 Injury indicators: these concern the negative impact of dumped imports on the performance of the sampled companies, including production, production capacity, sales, stocks, employment, investments and return thereof, cash-flow and profitability.

 The level of undercutting margin: the percentage by which the landed price of foreign imports undercut (i.e., are lower than) the actual EXW prices of the sampled Union producers.

The level of underselling margin: the percentage by which foreign imports have depressed the prices of the sampled Union producers. Underselling is assessed by comparing the landed prices of the imports with a target EXW price of the Union producers. The target price is calculated by determining the cost of production of the Union producers and by adding to it a reasonable amount of profit (the “target profit”), which, according to the law, in principle cannot be less than 6% of turnover.  

Sections of the questionnaire

 Each section of the questionnaire is specifically designed for the Commission to gain a detailed understanding of the sampled company and to investigate the existence of the above-mentioned general economic elements:

 Sections B and C of the Questionnaire and Section J of Annex I aim at allowing the Commission to understand at a high level of detail the structure of the company, its affiliations (including the existence of affiliated resellers), production and sales operations and the characteristics of the manufactured products. 

 The injury indicators are assessed on the basis of the information and data reported in Sections D, E, G, H, I and K, L, M, N of Annex I. 

The data concerning the injury indicators are collected for a historical period of four years (the “Injury Investigation Period”) in order to allow the Commission to investigate the negative impact of foreign imports on the Union industry over time. 

Points for consideration

 Reconciliations: the data submitted as part of the questionnaire response need to be reconciled by volume and value to the audited financial statements of the sampled Union producer. The term “reconciliation” does not necessarily mean a full match between the questionnaire reply and the audited financial statements. Any reasonable reconciliation method, including allowances, adjustments, assumptions and allocations of figures, is accepted. 

 Importance of PCNs: The investigation’s product codes are called Product Control Numbers (“PCNs”).  PCNs are essential for the Commission to be able to consolidate the figures of the sampled exporting producers, consolidate the figures of the sampled Union industry members and calculate the undercutting and underselling margins, which involve an apple-to-apple comparison between imports and domestic sales of the Union industry. It is therefore absolutely critical that all respondents correctly report the PCNs.

 Annex I to the Union producers’ questionnaire: The related resellers (wherever they are located, inside or outside the EU) who resold into the EU the products manufactured by EU producers must, in principle, complete an Annex I questionnaire response. Some rare exceptions might apply.

Acting to the best of one’s ability: EU anti-dumping law and Commission administrative practice do not require the response to the questionnaire to be perfect in every aspect. The law does require, however, that companies act to the best of their abilities to provide the most complete and correct response possible. Normally, the Commission will send a list of follow-up questions (the “deficiency letter”) to improve the response and address its deficiencies. 

 Verification: The Commission’s officials will visit the respondents’ facilities to verify the accuracy of the questionnaire responses and to ensure that the data submitted indeed reconcile to the audited accounts. It is, therefore, absolutely critical that respondents keep the evidence/Excel files/ERP extractions and any other source document used to prepare the questionnaire response and related tables so that these are traceable to their source.

Conclusion

 As it should emerge from this article, each element of the Union industry questionnaire serves a precise purpose in order to establish the existence of injury (or threat thereof) caused by foreign dumped imports. It is, therefore, in the respondent companies’ own interest to thoroughly complete each section of the anti-dumping questionnaire to the best of their abilities, in order to properly support their complaint about unfair imports into the EU.

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Author(s):

Vassilis Akritidis, Partner, vakritidis@crowell.com, +32 2 214 2877

Lorenzo Di Masi, Counsel, ldimas@crowell.com, +32 2 282 1835

Marcia Pulcherio, Associate, Mpulcherio@crowell.com, +32 2 214 2853