European Commission Implements Certain Measures Affecting Trade Defence Investigations Amid the COVID-19 Outbreak

Due to the rapid transmission of the coronavirus (COVID-19), the World Health Organization has recognised the COVID-19 as a pandemic. On 16 March 2020, the Official Journal of the European Union published a document “On the consequences of the COVID-19 outbreak on anti-dumping and anti-subsidy investigations”. By means of this document, it can be seen that the European Commission (“Commission”) has taken certain measures that will have an impact on ongoing trade defence investigations.

The safety measures taken by the Commission are aimed at limiting the spread of COVID-19 and will affect parties involved in EU trade defence investigations located or closely interlinked with the areas affected by the virus. According to the Commission, the safety measures will impact trade defence investigations in two ways: (i) in relation to on-spot verifications, and (ii) in relation to time-limits by which interested parties are required to respond to the Commission’s information requests.

Impact on on-spot verifications

According to EU law governing trade defence (anti-dumping and anti-subsidy) investigations, the Commission shall, where it considers it appropriate, carry out visits to examine the records of importers, exporters, traders, agents, producers, trade associations and organizations and to verify information provided in the framework of the investigation.

The Commission has decided to suspend all non-essential travel to the affected areas as well as to postpone all face-to-face meetings with visitors from these areas.

Information provided by exporting producers located in COVID-19 affected areas will not be in situ verified due to travel restrictions and other safety measures. The Commission will endeavour to consider the information properly submitted by the parties and to cross-check it with other information available if feasible. If the Commission is not satisfied with the accuracy or completeness of the information submitted, it will have to base its findings only on the verified or other proven facts on the record of the investigation.

Accordingly, the Commission will carefully examine, among others, the following information when making its findings with respect to the imports under investigation:

• the complaint and the verified information contained therein submitted on behalf of the Union industry,

• the information submitted by means of the questionnaire responses by other interested parties, particularly producers, which can be properly verified by the Commission services in Brussels.

The Commission will require the utmost cooperation from interested parties, by providing information which is sufficiently detailed, which can be cross-checked from independent and verifiable sources and which is fully and properly certified.

Exporting producers are requested to ensure compliance with the General Instructions of the questionnaire. The Commission is requesting an easy verification of the response and of accounting and management records. Exporting producers are required to submit all worksheets (usually Excel files and/or other extractions from companies’ databases) used for preparing data for the questionnaire response and to provide a detailed explanation on how such worksheets were compiled and how to reconcile the figures and data in the worksheets with the figures and data submitted in the questionnaire and the annexed tables. If the necessary information requested by the Commission cannot be provided by interested parties, the Commission may make its findings based on the information available.

The Commission has announced that it will take particular care that due process and transparency requirements are observed.

Impact on time-limits and deadlines

The Commission acknowledges that 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. According to the Commission, this may have an impact on the ability of parties to reply on time to questionnaires and other requests for information sent during trade defence investigations. The time-limits for replying to questionnaires are specified in EU law. Moreover, the notices of initiation of trade defence investigations contain additional provisions for the submission of information and the timeline of each investigation.

Notices of initiation provide for a possibility to grant a seven-day extension in case of exceptional circumstances. 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, the Commission has opened the possibility of granting the seven-day extension. For that purpose, the Commission has mandated that parties requesting such extension explain in detail how the measures linked to COVID-19 affect their capacity to provide the information requested.

The Commission understands that economic operators located in regions particularly affected by the COVID-19 outbreak may be subject to additional substantial safety measures impeding their capacity to comply with its requests. In such extraordinary cases, an exceptional extension of the deadline beyond the seven-day period may be granted. The requesting party must duly substantiate how additional substantial safety measures affect its capacity to provide the specific information requested. In such situations, the requesting parties are required to also indicate how the additional time would allow them to prepare a meaningful reply to the Commission’s questionnaire or other requests for information. The Commission will then decide on a case-by-case basis whether this further extension should be granted.

Companies subject to proceedings that are interested in the matter should note that, if these extensions would risk jeopardising the timely conclusion of the investigation, the Commission may reject the extension requests or shorten the time granted.

The measures announced by the Commission on 16 March will apply until the COVID-19 affected areas have been deemed safe for travel or there are no restrictive prevention measures applying to parties located in those areas or otherwise affected by the measures linked to COVID-19. If, during an investigation, certain areas affected by COVID-19 are no longer considered unsafe for travelling, verification visits will again be carried out provided this is still feasible in view of the deadlines applicable to investigations.

In the case where an investigation has been concluded and definitive measures were imposed on the basis of the facts available, the Commission may, as soon as certain areas where the exporting producers are located are no longer considered unsafe for travelling, initiate an ex officio interim review to determine the need for the continued imposition of measures.

The Commission has announced that interested parties may submit comments to it within 10 days of the publication of the notice. Please click on the following to view the document titled “On the consequences of the COVID-19 outbreak on anti-dumping and anti-subsidy investigations”.