Pursuant to China’s WTO Protocol of Accession, Chinese exporters subject to anti-dumping proceedings can be treated as not operating under market economy conditions until 11 December 2016. This has the practical effect that, under EU law, a special methodology (the NME methodology) derogating from the WTO Anti-Dumping Agreement (ADA) can be used to determine the normal value for Chinese exporters in an EU anti-dumping proceeding. This means that, unless Chinese exporters can show that they operate under market economy conditions (and thereby obtain so-called Market Economy Treatment (MET)), the normal value for such producers will not be based on their own sales and cost data, but by reference to data from third countries. Typically, this results in higher dumping margins (and hence higher anti-dumping duties) than under the methodology applied to market economy countries, especially since it has become increasingly difficult for Chinese exporters to qualify for MET.
While prior to 11 December 2016, the EU may rely on China’s WTO Protocol of Accession to justify the application of NME, the post-December 2016 situation has been the subject of controversy. Some commentators have in recent years been arguing that the EU will not necessarily be obliged to abandon its NME methodology for China after 11 December 2016. Yet, in view of recent developments, the likelihood of such a scenario has reduced further. In a 7th November 2013 speech before a European Parliament conference concerning the modification of the EU’s trade defence instruments, the Commissioner mentioned that China will receive Market Economy Status in 2016. In addition, and possibly a more solid ground for predictions about China’s future Market Economy Status under EU law is a recent judgment of the General Court in the Rusal Armenal case, especially if confirmed on appeal.
Therefore, this briefing will focus primarily on the implications of the Rusal Armenal judgment for China’s Market Economy Status.
Pursuant to China’s WTO Protocol of Accession, Chinese exporters subject to anti-dumping proceedings can be treated as not operating under market economy conditions until 11 December 2016. This has the practical effect that, under EU law, a special methodology (the NME methodology) derogating from the WTO Anti-Dumping Agreement (ADA) can be used to determine the normal value for Chinese exporters in an EU anti-dumping proceeding. This means that, unless Chinese exporters can show that they operate under market economy conditions (and thereby obtain so-called Market Economy Treatment (MET)), the normal value for such producers will not be based on their own sales and cost data, but by reference to data from third countries. Typically, this results in higher dumping margins (and hence higher anti-dumping duties) than under the methodology applied to market economy countries, especially since it has become increasingly difficult for Chinese exporters to qualify for MET.
While prior to 11 December 2016, the EU may rely on China’s WTO Protocol of Accession to justify the application of NME, the post-December 2016 situation has been the subject of controversy. Some commentators have in recent years been arguing that the EU will not necessarily be obliged to abandon its NME methodology for China after 11 December 2016. Yet, in view of recent developments, the likelihood of such a scenario has reduced further. In a 7th November 2013 speech before a European Parliament conference concerning the modification of the EU’s trade defence instruments, the Commissioner mentioned that China will receive Market Economy Status in 2016. In addition, and possibly a more solid ground for predictions about China’s future Market Economy Status under EU law is a recent judgment of the General Court in the Rusal Armenal case, especially if confirmed on appeal.
Therefore, this briefing will focus primarily on the implications of the Rusal Armenal judgment for China’s Market Economy Status.
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