Θέλετε να υποβάλετε αναφορά κατά ενός θεσμικού οργάνου ή οργανισμού της ΕΕ;

Απόφαση στην υπόθεση 924/2020/TE σχετικά με τον τρόπο με τον οποίο η Ευρωπαϊκή Επιτροπή χειρίστηκε αίτημα αναστολής έρευνας αντιντάμπινγκ κατά τη διάρκεια της κρίσης COVID-19

Η αναφορά αφορούσε την άρνηση της Ευρωπαϊκής Επιτροπής να αναστείλει έρευνα αντιντάμπινγκ που αφορούσε τις εισαγωγές κινεζικών προϊόντων αλουμινίου ή, εναλλακτικά, να δώσει σε Ιταλό εισαγωγέα περισσότερο χρόνο για να απαντήσει στα αιτήματα παροχής πληροφοριών που του απηύθυνε η Επιτροπή.

Η Διαμεσολαβήτρια επισήμανε ότι η Επιτροπή είχε ήδη παρατείνει τις προθεσμίες προκειμένου να ληφθούν υπόψη οι δυσκολίες που προέκυψαν λόγω της κρίσης COVID-19. Η περαιτέρω παράταση των προθεσμιών θα μπορούσε, ενδεχομένως, να υπονομεύσει την ικανότητα της Επιτροπής να εκπληρώσει τις υποχρεώσεις της σχετικά με την ολοκλήρωση της έρευνας αντιντάμπινγκ εντός των νόμιμων προθεσμιών που τη δεσμεύουν. Ως εκ τούτου, η Διαμεσολαβήτρια διαπίστωσε ότι η Επιτροπή ενήργησε εύλογα και περάτωσε την υπόθεση διαπιστώνοντας ότι δεν υφίσταται κακοδιοίκηση.

Background to the complaint

1. The complainant is an Italian importer of Chinese aluminium products.

2.  In February 2020, the Commission launched an anti-dumping[1] investigation concerning imports of aluminium ‘extrusions’[2] from China. The investigation was ongoing when the complainant contacted the Ombudsman.

3. On 26 February 2020, the Commission asked the complainant to complete, by 27 March 2020, a questionnaire sent to selected EU importers.

4. On 16 March 2020, the Commission published a notice on the consequences of the COVID-19 outbreak on anti-dumping investigations[3] (hereafter ‘the COVID-19 notice’). The COVID-19 notice allows the Commission to extend the deadlines for responding to questionnaires and other requests for information, provided such extensions do not risk the timely conclusion of anti-dumping investigations.

5. On 17 March 2020, the complainant asked the Commission to put on hold the anti-dumping investigation due to the COVID-19 crisis. If this were not possible, the complainant requested the Commission, as an alternative, to extend the deadlines for submitting information to the Commission. The complainant also requested its oral hearing to be postponed.

6. On 23 March 2020, the complainant informed the Commission that the Italian government and the regional administration of Lombardy (where the company is located), had imposed public health safeguards that affected the company’s ability to respond and to defend its interests in the anti-dumping investigation.[4]

7. On 25 March 2020, the Commission replied to the complainant, stating that the applicable law, the ‘Basic Anti-dumping Regulation’[5], does not allow it to put investigations on hold. However, given the exceptional circumstances, and in line with the COVID-19 notice, the Commission granted the complainant an extension, until 13 April, to reply to the questionnaire. It also noted that the complainant had already, on 24 February 2020, submitted comments on the issue of ‘product definition’. As regards that issue too, the Commission gave the complainant, exceptionally, until 14 April 2020 to submit further comments. The Commission also stated that it would postpone the hearing and that videoconferencing could be used to take part in the hearing (depending on the development of the COVID-19 situation). Finally, it informed the complainant that it could not grant an extension to one specific deadline, namely the deadline to comment on the determination of the ‘normal value’ of the products under investigation.

8. On 27 March and 6 April 2020, the complainant repeated its request to put on hold the anti-dumping investigation and, if this was not possible, to extend further the deadlines for all interested parties.

9. On 8 April 2020, the Commission replied to the complainant, confirming that the Basic Anti-dumping Regulation does not allow for investigations to be put on hold. Given the legal constraints, the Commission also stated that it could not grant the complainant any further extensions to reply to the questionnaire (beyond the extended deadlines already given).

10. On 24 April 2020, the complainant sent the Commission an overview of the economic effects of the COVID-19 outbreak in Italy.

11. On 13 May 2020, the complainant requested the Hearing Officer for Trade[6] to intervene.

12. The Hearing Officer replied that the issues raised do not fall within his mandate. In particular, he stated that he has no mandate to put on hold an ongoing anti-dumping investigation or to make changes to the COVID-19 notice.

13. On 27 May 2020, the complainant turned to the Ombudsman.

The inquiry

14. The Ombudsman opened an inquiry into the complainant’s concerns that the Commission refused to put on hold the anti-dumping investigation and refused further to extend the deadlines.

15. On 17 July 2020, the Ombudsman shared her preliminary view on the case with the complainant. The Ombudsman received the complainant’s comments on her preliminary view on 14 September 2020.

The Ombudsman’s preliminary view

16. The Ombudsman is conscious of the difficulties faced by persons and companies affected by the COVID-19 pandemic. She considers that public authorities should, where legally and practically possible, take all reasonable steps to assist persons and companies during these exceptionally difficult times.

17. The Ombudsman is also conscious of the fact that the aim of anti-dumping investigations is to verify if products are being illegally dumped on the EU market and are causing harm to EU industry (and by extension to jobs and livelihoods in the EU). It is important, all the more so in these challenging times, that the Commission carries out such investigations diligently and in good time.

Putting anti-dumping investigations on hold

18. In her preliminary view, the Ombudsman noted that anti-dumping proceedings are governed by the Basic Anti-dumping Regulation. There is no legal basis in the Basic Anti-dumping Regulation for putting investigations on hold.

19. Instead, the Basic Anti-dumping Regulation states that “an investigation shall, whenever possible, be concluded within one year. In any event, such investigations shall in all cases be concluded within 14 months of initiation” (emphasis added). [7] In addition, if provisional duties are to be imposed, they must be imposed, in any event”, no later than eight months from the initiation of proceedings.[8]

20. In order to gather evidence to allow it to complete an anti-dumping investigation, the Commission sends questionnaires to importers. Importers must be given at least 30 days to reply. An extension to the 30-day period may be granted, according to Article 6(2) of the Anti-dumping Regulation, “due account being taken of the time limits of the investigation, provided that the party shows due cause for such an extension in terms of its particular circumstances”.

21. In sum, the Anti-dumping Regulation already makes provision for exceptional circumstances, which the COVID-19 pandemic certainly is, and permits the Commission to extend deadlines in that context. However, the applicable law also states that any such extensions must take “due account” of the times limits (for conducting and completing) the investigation.

Whether the Commission adopted appropriate measures in response to the COVID-19 crisis in the context of anti-dumping proceedings

22. On 16 March 2020, the Commission published a notice on the consequences of the COVID-19 outbreak on anti-dumping and anti-subsidy investigations (‘the COVID-19 notice’).  The COVID-19 notice says, in its relevant parts (emphases added):

  •  “Exporting producers and other parties located in areas affected by COVID-19 may be subject to safety measures preventing or limiting their ability to conduct business activities for extended periods of time. This may have an impact on the ability of parties to reply on time to questionnaires and other requests for information sent in the course of trade defence investigations.
  • “Since the COVID-19 outbreak is an unforeseen event constituting force majeure likely to impede the affected economic entities from complying with the relevant deadlines for submission of information, an extension of 7 days may be granted.”
  • “economic operators located in in regions particularly affected by the COVID-19 outbreak may be subject to additional substantial safety measures impeding their capacity to comply with the Commission’s requests, such as quarantine periods and/or mandatory factory closures. In such extraordinary cases, the Commission may exceptionally decide to extend the deadline beyond the 7-day period.”
  • if these longer extensions for force majeure or additional safety measures would risk jeopardising the timely conclusion of the investigation, the Commission may reject the extension requests or shorten the time granted.”

23. The Ombudsman found that the COVID-19 notice reconciles the effects on interested parties of an “unforeseen event constituting force majeure” with the legal requirement of concluding anti-dumping investigations within 14 months of initiation.

24. Her preliminary view was, therefore, that the Commission, by adopting the COVID-19 notice, responded appropriately to the particular challenges posed by the COVID-19 crisis.

25. As regards whether the Commission acted in line with the COVID-19 notice in this case, the Ombudsman noted that the notice foresees an extension of seven days and, exceptionally, the possibility to extend the deadline beyond seven days for “economic operators located in regions particularly affected by the COVID-19 outbreak”. The notice also states that “if these longer extensions for force majeure or additional safety measures would risk jeopardising the timely conclusion of the investigation, the Commission may reject the extension requests or shorten the time granted.”

26. The Commission granted the complainant an extension of 17 days to reply to the questionnaire. The Commission also accepted the complainant’s request to reschedule the hearing. On 8 April 2020, the Commission rejected any further extension. When doing so it explained that it could not grant further extensions, given the statutory deadlines laid down in the Basic Anti-dumping Regulation.

27. The Ombudsman took the preliminary view that the Commission’s decision to extend the deadline by 17 days, and thus beyond the standard seven days, was reasonable, for the following reasons:

  •  The complainant is an economic operator located in a region particularly affected by the COVID-19 outbreak and should therefore benefit from an extension beyond the standard seven days, as happened in this case.
  •  While it is certainly the case that the company in question faced difficulties, the extension was sufficient to allow the complainant to submit its response to the questionnaire.
  •  The Commission is bound by legal time limits in anti-dumping proceedings. The COVID-19 notice recognises these statutory deadlines and allows the Commission to reject extension requests in cases where such extensions would imply that the Commission risked not meeting these legal deadlines. The Commission concluded that, in this case, any further extension would jeopardise the timely conclusion of the investigation.

28. In light of these considerations, the Ombudsman came to the preliminary view that there was no maladministration by the Commission when it decided not to suspend the anti-dumping investigation in question and not to extend further the deadlines for submitting the requested information.

The complainant’s comments

29. In its comments on the Ombudsman’s preliminary view, the complainant mainly addressed the Ombudsman’s finding that there is no legal basis in the Basic Anti-dumping Regulation for putting investigations on hold and that the Commission is required to conclude investigations within 14 months of initiation. The complainant disagreed with the Ombudsman’s view for three main reasons.

30. First, it stated that the Commission’s refusal to put on hold anti-dumping investigations in light of force majeure infringes the fundamental rights of interested parties in anti-dumping proceedings, most notably the right to be heard, the right to good administration, the principle of equality and the right to health protection. These fundamental rights are protected by the EU Charter of Fundamental Rights, which trumps secondary EU legislation, such as the Basic Anti-dumping Regulation.

31. Second, the complainant took the view that the Commission could extend the deadlines in the Basic Anti-dumping Regulation “without following legislative proceedings”. This would be evident from the recently adopted Commission Delegated Regulation 202/1173, which extends the duration of the period of pre-disclosure: “The mentioned delegated act constitutes clear evidence that any extensions of the relevant deadlines would not be an obstacle to the services of the European Commission, DG Trade”.

32. Finally, the complainant noted that an extension of the deadlines under the EU Basic Anti-dumping Regulation is compatible with the Anti-Dumping agreement of the World Trade Organisation, which requires that investigations shall take “in no case more than 18 months”.

33. The complainant further argued that the Commission should not have initiated the investigation on 14 February 2020, given the COVID-19 situation in China at that time.

The Ombudsman's assessment

On putting anti-dumping investigations on hold

34. In its comments, the complainant does not challenge the absence of a legal basis in the Basic Anti-dumping Regulation for putting investigations on hold. However, the complainant alleges that (a) this absence infringes fundamental rights and (b) the deadlines in the Basic Anti-dumping Regulation could be changed by the adoption of a Commission delegated act.

Infringement of fundamental rights

35. The complainant considers that its right to be heard is infringed, as it was not adequately heard on an act adversely affecting it.

36. The right to be heard is a fundamental right granted to every person before any measure adversely affecting him or her is taken.[9]

37. A decision to initiate a new anti-dumping investigation is not an act adversely affecting a person, since no anti-dumping duties are imposed as a result of the initiation of the investigation.[10] Duties will be imposed only during an investigation (provisional anti-dumping duties) or at the end of an investigation (definitive anti-dumping duties). Interested parties only have a right to be heard regarding the imposition of such duties. They do not have a formal right to be heard regarding preparatory acts.  In the case at hand, no provisional duties had been imposed at the time of the complaint.[11] Therefore, the issue of whether the right to be heard of the complainant was respected is premature.

38. Requesting information from EU importers, such as via the questionnaire, is not connected to the right to be heard. The Commission is not ‘hearing’ interested parties. Rather, the questionnaire forms part of the evidence gathering the Commission undertakes.

39. That said, as a question of good administration, it is important that the Commission’s information gathering is effective and timely. The Commission should therefore seek to gather complete and accurate information in good time. It is in this context that the Ombudsman should examine whether the complainant was granted a reasonable amount of time to reply to the Commission’s information requests, given the COVID-19 situation in the region of Lombardy at the time.

40. As the Ombudsman noted in her preliminary view, the Commission, by adopting the COVID-19 notice, responded appropriately to the particular challenges posed by the COVID-19 crisis to anti-dumping proceedings. The notice takes into account the effects on interested parties of an “unforeseen event constituting force majeure”, while allowing the Commission to meet the legal requirement of concluding anti-dumping investigations within 14 months of initiation.

41. The Ombudsman also considers the Commission’s application of the COVID-19 notice, in the concrete case of the complainant, reasonable, for the reasons set out in her preliminary view. Not only was an extension granted, but the Commission granted 17 extra days to the complainant, far exceeding the standard seven-day extension foreseen by the COVID-19 notice. The Commission also agreed to postpone the oral hearing, and stated that it could take place either in person or by videoconference (depending on the development of the COVID-19 situation). This was both flexible and reasonable.

Change of time limits via a delegated act

42. The complainant further argues that the Commission can extend the deadlines laid down in the Basic Anti-dumping Regulation through the adoption of a delegated act.

43. The Ombudsman notes that the Commission can only supplement or amend non-essential elements of legislation by adopting a delegated act where the objectives, content, scope and duration of such a delegation of power are already explicitly defined in the legislative act.[12]

44. The Basic Anti-dumping Regulation does not empower the Commission to adopt delegated acts extending the timeframes for the imposition of provisional or definitive anti-dumping duties.

45. In contrast, the example the complainant refers to concerns the Commission’s adoption of a Delegated Regulation, which is specifically foreseen by Article 7(1) of the Basic Anti-dumping Regulation.[13]

46. Therefore, the arguments of the complainant are not well founded.

On the initiation of anti-dumping proceedings despite the COVID-19 situation in China

47. The complainant argues that the Commission should never have initiated the investigation, on 14 February 2020, due to the COVID-19 situation in China at that time.

48. As the Ombudsman pointed out in her preliminary view, the Commission is required to initiate proceedings within 45 days where a complaint was submitted by the Union industry in accordance with Article 5 of the Basic Anti-dumping Regulation and “where it is apparent that there is sufficient evidence to justify initiating proceedings”.[14] In this case, the Commission initiated proceedings following a complaint by the Union industry. This means that the Commission had no discretion whether to initiate or not, as soon as there was sufficient evidence of dumping and injury.

49. As noted above, the aim of anti-dumping investigations is to verify if products are being illegally dumped on the EU market and are causing harm to EU industry (and by extension to jobs and livelihoods in the EU). It is thus important that the Commission carries out such investigations diligently and in good time.

50. In light of the above analysis of the complainant’s comments, the Ombudsman confirms her preliminary view that there was no maladministration by the Commission when it decided not to put on hold the anti-dumping investigation in question and not to extend further the deadlines for submitting the requested information.

Conclusion

Based on the inquiry, the Ombudsman closes this case with the following conclusion:

There was no maladministration by the Commission when it decided not to put on hold the anti-dumping investigation in question and not to extend further the deadlines for submitting the requested information.

The complainant and the Commission will be informed of this decision.

 

Emily O'Reilly
European Ombudsman


Strasbourg, 20/10/2020

 

[1] A non-EU company is deemed to be 'dumping' if it exports a product to the EU at a price lower than the ‘normal value’ of the product. The ‘normal value’ is either the price of the product when it is sold on the home market of the non-EU company, or a price based on the cost of production and profit.

[2] Aluminium ‘extrusions’ are shaped aluminium (tubes, bars, rods ...) that are used as a raw material, for example, in building and manufacturing.

[3] Available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.C_.2020.086.01.0006.01.ENG

[4] The complainant stated that its factories had to cease working due to the COVID-19 lockdown.

[5] Regulation (EU) 2016/1036 on protection against dumped imports from countries not members of the European Union: http://data.europa.eu/eli/reg/2016/1036/oj

[6] The Hearing Officer for Trade facilitates communication between interested parties and Commission services in trade proceedings, and offers mediation - on procedural issues - between interested parties and the Directorate-General for Trade. His role is to safeguard the effective exercise of the procedural rights of the interested parties and to ensure that trade proceedings are handled impartially, fairly and within a reasonable time.

[7] In accordance with Article 6(9) of the Basic Anti-dumping Regulation.

[8] Article 7(1) of the Basic Anti-dumping Regulation.

[9] Article 41(2)(a) of the EU Charter of Fundamental Rights.

[10] Decision of the European Ombudsman in case 231/2019/TE on the European Commission's refusal to give access to the initial version of an anti-dumping complaint: https://www.ombudsman.europa.eu/en/decision/en/129552

[11] The complaint was submitted on 27 May 2020. The Commission published information at provisional stage (pre-disclosure) on 22 September 2020. On 12 October 2020, the Commission adopted a decision imposing provisional duties.

[12] Article 290 Treaty on the Functioning of the EU.

[13] This provision says, in its relevant part: “The Commission shall review by 9 June 2020, whether a substantial rise in imports has occurred during the period of pre-disclosure and whether, if such rise has occurred, it has caused additional injury to the Union industry, despite the measures that the Commission might have taken based on Article 14(5a) and Article 9(4). It shall rely in particular on data collected on the basis of Article 14(6) and any relevant information at its disposal. The Commission shall adopt a delegated act in accordance with Article 23a to amend the duration of the period of pre-disclosure to two weeks in the case of a substantial rise of imports that have caused additional injury and to four weeks where this is not the case” (emphasis added).

[14] Article 5(9) of the Basic Anti-dumping Regulation.