The vulnerability of EU anti-dumping measures against China after December 11, 2016

Abstract

On December 11, 2016, Article 15 (a)(ii) of China’s Accession Protocol to the WTO will expire. The expiration of this provision terminates the right of WTO members’ to calculate anti-dumping duties against China on the basis of methodologies that “are not based on a strict comparison with domestic prices or costs in China”. In this context, this paper shall serve, first, as a reminder that the European Union will violate its WTO obligations under the WTO Anti-Dumping Agreement (ADA) if the Union’s institutions continue - after December 11, 2016 - to adopt anti-dumping measures against China that are based on ‘non-market economy’ (NME) treatment of Chinese exports in anti-dumping investigations. Moreover, the 2009 EU Anti-Dumping Regulation will be vulnerable to legal challenge in the WTO dispute settlement mechanism “as such” if it is not brought into compliance with the WTO Anti-Dumping 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 of EU non-compliance with the WTO Anti-Dumping Agreement after December 2016 and hints at legally viable alternatives.