Recent Developments in EC Anti-Dumping Law

01 December 2007

THE EUROPEAN HEARING OFFICER FOR TRADE INVESTIGATIONS

A development we welcome is the establishment of a hearing officer (HO) for trade matters at the European Commission, which came about in January 2007 (see http://ec.europa.eu/trade/issues/respectrules/ho/index_en.htm). Observers of EU trade remedies practice in particular have often complained about procedural shortcomings, especially with regard to hearings and access to the file. The HO is charged with the oversight of the rights of the defence in trade proceedings before the Commission - that is, not just anti-dumping proceedings, not even just trade defence proceedings (anti-dumping, anti-subsidy, and safeguards actions), but perhaps also WTO dispute settlement and trade barriers regulation (TBR) cases.
One of the HO's principal tasks is to ensure respect of the right of interested parties to be heard in writing and orally. Part and parcel of that role is responsibility for issues related to access to the file and treatment of confidential information and business secrets. Related too - the HO can intervene when there is a disagreement about procedural matters, like the admission of an interested party, extensions of time-limits, requests for disclosure. Note that the HO will not be involved in all hearings held by DG Trade, as is the case for DG Competition. It is only after a fractious hearing that the HO may, upon request, organise and chair an additional one. When that happens, "where appropriate", the HO can issue a report about respect of the rights of defence in that particular case.
Beyond the HO's procedural responsibilities, there is an indication that the HO could play a role in the substantive determination of cases. The HO is supposed to "guarantee that all relevant arguments and facts presented by the [interested] parties are duly considered". The new position is described as "a new, neutral pair of eyes" in trade proceedings and the European Commission explains that it was created, in part, to guarantee "impartiality" in the face of complaints that the Commission is the prosecutor, judge and jury in trade proceedings. In certain cases, the HO could find an argument so compelling that he or she might conclude that the Commission could not have properly heard it if the Commission did not choose to follow it, or at least address it more carefully. In that regard, the HO could have a role in the substantive outcome of cases.
In addition, the website announces an advisory role for the HO; he or she is to provide "targeted advice" to the director general of external trade on issues related to due process and good administration, as well as to "present observations on any matter arising out of trade proceedings". In this task, the HO role does not appear to necessarily be linked to the specific cases in which he or she has been asked to intervene. The website speaks of the HO reinforcing "best practice" through general recommendations on procedural policy and due process issues.
Overall, the position the website describes is mainly reactive, not proactive - in most respects, the HO only gets involved upon a written, reasoned request. While the HO will apparently not be systematically involved in every case, depending upon the verve of his or her own initiative, the HO could have a powerful platform for bringing about changes in the way things are done in DG Trade.
For that reason, the advent of the hearing officer for trade position has the potential to evolve - and the website specifically speaks of the "evolution" of the position - into a positive development for DG Trade. At least from now on, interested parties have an additional person to turn to, for instance to complain about procedural mistakes (explicitly, those that compromised their ability "to be heard in writing and orally", problems in access to the file, and even to argue that their submissions have not been "duly considered"). Not only does the hearing officer act as an interface between the interested parties and the Commission investigation services, to "facilitate [...] communication", the website specifically mentions that the HO can act as a mediator on procedural issues. The HO is not independent; he or she is a part of DG Trade and reports to the director general, but does work independently from the Commission investigation services. The mere existence of the HO role, the threat of seeking his or her intervention, the HO's actual intervention and perhaps mediation in particular cases, could lead to solutions where complaints to the services might have been dismissed before. In fact, in the most contentious situations, it seems that disputes can get attention at the highest level, something that few could have hoped for before. The website says when, after the HO's intervention, a disagreement remains between the interested party or the HO and the investigation services, the hearing officer "will report to the director general".

WTO LAW IN THE EUROPEAN COURTS

In 2007 several judgments of the European Court of Justice illustrate that WTO law is having more effect on the jurisprudence, including anti-dumping cases, than is generally acknowledged.
As is well known, the European Court of Justice, with limited exceptions, has consistently denied direct effect to WTO/GATT law (ECJ, Case C-69/89, Nakajima [1991] ECR I-2069). So far, the EC Courts have only recognised such exceptions in respect of the EC's anti-dumping legislation. However, the potential impact of WTO law in domestic court litigation does not end with direct effect. In EC law the principle of treaty-consistent interpretation holds promise. As long as a private litigant does not challenge the legality of EC measures on the basis of WTO law, the European Courts show themselves quite willing to interpret EC (or, for that matter, national) measures as much as possible in conformity with WTO law (eg, ECJ, Joined Cases C-477/05 and 448/05, Thomson Multimedia, judgment of 8 March 2007).
Moreover, in cases where treaty-consistent interpretation can provide no solace to a private litigant, because the meaning of the domestic legislation is unequivocal and appears to be in conflict with a provision of international law, a reference to WTO law can still be helpful. Thus, even if the European Courts do not explicitly rely on a pertinent WTO ruling in interpreting EC law, it is becoming clearer that they are influenced by WTO precedents and, albeit implicitly, seek to avoid inconsistencies. In one recent case the European Court of Justice invalidated an anti-dumping duty on bed linen, summarily finding that the EC institutions had committed a manifest error of assessment of Community law by having practised "zeroing" in calculating the dumping margin (ECJ, Case C-351/04, IKEA, judgment of 27 September 2007). For this summary judgment, the European Court of Justice did not rely on the earlier condemnation of the same EC anti-dumping duty, because of the zeroing practice, by the WTO Appellate Body in 2001. In fact, the European Court of Justice explicitly declined to review the EC anti-dumping duty against the WTO Anti-dumping Agreement, distinguishing its Nakajima case law. However, it seems a safe assumption that the European Court's interpretation of EC law was influenced by the disapproval of the same EC measure by the WTO Appellate Body.
Similarly, a few months earlier, the European Court of Justice gave an interpretation of the EC tariff classification of boneless chicken cuts, which deviated from the traditional interpretation given by EC customs authorities (ECJ, Case C-310/06, FTS International, judgment of 18 July 2007). Again, this judgment was consistent with a WTO Appellate Body ruling from 2005, which had condemned the latter interpretation. And again, the European Court did not refer to the WTO ruling in its findings, but its judgment can be read as an effort to avoid inconsistencies with the WTO Appellate Body.
These examples go to show that the dialogue of the European Courts with WTO tribunals, while muted to date, does exist. One would like to think that the European Courts generally tend to pay respect to other international tribunals, but reserve the right to adopt their own course in certain narrowly drawn circumstances (such as the occurrence of new facts subsequent to an international ruling, or compelling domestic policy considerations that require deference to the legislature). By transforming WTO rulings into interpretations of EC law, the European Courts keep their hands free to deviate from these WTO rulings if and when the need to do so arises, while avoiding inconsistencies as much as possible.

For more detail on these developments see Natalie
McNelis, ‘A Hearing Officer for Trade', to be published in 3 Global Trade and Customs Journal (No. 2, 2008); Marco Bronckers, ‘Private Appeals to WTO Law: An Update', to be published in 42 Journal of World Trade (No. 2, 2008).

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