Turkey: EC vs Turkey In Compliance With WTO Rules: Dumping Exports To The EU And Restricting Imports From The EU?

Last Updated: 11 July 2017
Article by Ertuğrul Can Canbolat LL.M. and Hanna Stakheyeva PhD

1. INTRODUCTION

The European Commission ("Commission"), being quiet active between the last week of June and first week of July 2017, initiated trade remedy investigations (i.e. anti-dumping and expiry review) against various countries, including Turkey. In particular, the Commission launched an anti-dumping investigation concerning Turkey's exports to the EU and a trade barrier examination concerning EU imports to Turkey.

Considering importance of the issue for the companies active in the low carbon ferro-chrome and uncoated wood free paper market, as well as for the economy of Turkey and EU in general, below we provide highlights of the investigations together with the outline of main procedural steps and opportunities available for the parties in the course of the investigations.

2. Anti-Dumping Investigation Concerning Turkey's Exports to the EU

2.1 Legal framework

As emphasized in the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994, the main purpose of the anti-dumping rules is to protect a Union/domestic industry against injuries caused by dumped imports of the like products. In this context, the Commission shall conduct an investigation to determine the existence, degree and effect of any alleged dumping upon a written complaint by any natural or legal person, or any association not having legal personality, acting on behalf of the Union industry.

On 23 June 2017, the Commission announced its decision to launch an anti-dumping investigation concerning the imports of "low carbon ferro-chrome" products (with the CN code 7202.49.50) originating in China, Russia and Turkey following the complaint that the concerned imports are being dumped and are causing material injury to the European Union ("EU") industry. According to the Notice of the Initiation, the complaint was lodged on 10 May 2017 by the Association of European ferro-alloy producers ("Euroalliages") on behalf of the sole EU producer of low carbon ferro-chrome in the EU, namely Elektrowerk Weisweiler GmbH ("Complainant"). The investigation will be carried out by the Commission in accordance with Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on protection against dumped imports from countries not members of the EU ("Regulation").1 It outlines the main aspects of the EU antidumping investigation including the principles, initiation of proceeding, definition of the EU industry and like product, determination of dumping and injury, provisional and definitive measures, and undertakings.

2.2 Important deadlines

As of 23 June 2017, i.e. the date when the Notice of Initiation2 was published in the Official Journal of the EU, the clock has started ticking for both exporting producers and the Commission, which are bound by certain strict deadlines. For instance, within 15 days following the publication of the Notice of Initiation all exporting producers and associations of exporting producers in Turkey are invited to get in contact with the Commission so that they can identify themselves and request a questionnaire to be able to submit highly important and confidential data. Further, the exporting producers and, where applicable, the associations of exporting producers shall have 37 days of the date of the publication of the Notice of Initiation in order to submit their responses to the questionnaire. At the same time, the Commission shall carry out its comprehensive dumping and injury analysis and then conclude its investigation within 15 months of the date of the publication of the Notice of Initiation in the Official Journal of the EU.

2.3 Benefits of cooperation & confidentiality

Within this scope, if an interested party does not provide necessary information within the above-stated time periods, such party shall be deemed as non-cooperative. In such cases, provisional or final findings, affirmative or negative shall be made on the basis of the facts available. Accordingly, the result of the investigation may be less favorable to that party than should it had cooperated. In addition to this benefit of cooperating with the Commission, the preparation and submission of full responses in a right and duly manner will also help the exporting companies to put forward their arguments more effectively as well as assisting the Commission in ensuring a fair comparison between the export price and normal value.

Full responses to the questionnaires imply also provision of the confidential data. In this regard, the Regulation ensures protection and the non-disclosure of the confidential data submitted by the interested parties, however, with the condition that they also provide their non-confidential summaries which should be sufficiently detailed to permit a reasonable understanding of the substance of the information submitted in confidence. This guarantees both parties' fundamental right, namely right to defence.

2.4 Other procedural steps

The Commission shall, where it considers it appropriate, carry out verification visits at the premises of the interested parties, in order to examine their records and to verify information provided on dumping and injury. In the absence of a proper and timely reply, the Commission may choose not to carry out a verification visit. Therefore, a proper preparation by the exporting companies for the verification plays a critical role as only the verified data will be used in the determination of the dumping and injury margins. The methods used by the Commission in the dumping margin calculation are regulated under Article 2 of the Regulation whereas Article 3 sets forth the main principles of the injury calculations. The respective measure to be adopted following the investigation shall be applicable for a five-year period.

Finally, the Commission shall announce its findings in which it discloses its intent to recommend the imposition of a provisional or definitive duty in respect of the EU as a whole. As there will be a very short deadline for the interested parties to submit their comments on the findings, the simulations for both dumping and injury calculation by the interested parties as well as the design of the strategies from both technical and legal perspective prior to the announcement appears to be of vital importance for the future export plans of the companies.

In conclusion, it is highly advisable that the Turkish exporting producers of the product under the investigation should consider both the advantages (such as getting an individual duty rate) and disadvantages (if any) of cooperation with the Commission in the concerned anti-dumping investigation which will shape their future exportation strategies.

3. Trade Barrier Investigation Concerning EU Imports To Turkey

3.1 The legal issue

On 7 July 2017 the Commission initiated an examination procedure on obstacles to trade within the meaning of Regulation (EU) 2015/1843 applied by Turkey and consisting of measures affecting the import of uncoated wood free paper.3 The investigation was launched upon a complaint of an industry association against the import surveillance system/importing licensing requirement introduced in Turkey as of 28 September 2015 for uncoated wood free paper imported into Turkey at a customs value of USD 1200 per tonne or less. The complainant states that such a specific licensing requirement could be incompatible with the Customs Union Agreement and the WTO rules since it affects all imports from the EU. As explained by the complainant, it is impossible to obtain such license due to the specific information requirements of the licensing procedure – such information is only available for paper producers, and consequently the importers of wood free paper are (indirectly) forced to declare their customs value above USD 1200 per tonne (even where the actual import value is less), which creates additional cost/tax for the importers of the product.

3.2 Procedural aspects

Within 45 days following the date of publication of the Notice of Initiation, any interested parties may submit in writing comments/information/supporting evidence/request to be heard to the Commission in relation to specific issues raised by the complaint and primarily concerned by the outcome of the investigation.

The trade barrier examination in the EU, just as in any other jurisdiction member of the WTO, is one of the tools available for the companies/professional associations in addressing foreign government measures that may have a negative impact on their business. It may lead to a WTO dispute settlement case if the trade barrier examination/regulations fails does not lead to a satisfactory settlement with Turkey. But in general the Commission aims to reach such solution so that the companies can enjoy the beneficial results more quickly (as compared to other possible outcomes involving long and costly dispute settlement mechanisms).

4. CONCLUDING REMARKS

Both the anti-dumping investigation in low carbon ferro-chrome market and the trade barrier examination in relation to the uncoated wood free paper market recently initiated by the European Commission against Turkey demonstrate increased importance of trade between the EU and Turkey, as well as compliance with the WTO rules. The outcome of the investigations is yet to be seen, but in any case cooperation between the parties concerned and the Commission are vital in order to reach the satisfactory solutions as soon as possible with as less negative impact as possible for both jurisdictions.

Footnotes

1 http://trade.ec.europa.eu/doclib/docs/2016/june/tradoc_154702.en.L176-2016.pdf

2 http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52017XC0623(01)&from=EN

3 http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.C_.2017.218.01.0020.01.ENG&toc=OJ:C:2017:218:TOC

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions