CRIMINAL DEFENSE AGAINST THE ACCUSATION OF EVASION OF ANTI-DUMPING DUTIES AND COUNTERVAILING DUTIES
Evasion of anti-dumping duties
There are three typical ways to evade anti-dumping duties:
- first, anti-dumping duties can be evaded by over-invoicing, i.e., by submitting falsified invoices showing an over-invoiced price. Since dumping occurs when goods from one country are sold below their normal value on the market of another country, i.e. the price of an export product is cheaper than the price in the export country, and the EU wants to counteract this by levying an anti-dumping duty, the actual purchase price can be manipulated by means of over-invoicing in such a way that it exceeds the dumping threshold when the goods are declared for release for free circulation in the EU.
- In addition, there is the possibility of incorrect information regarding the country of origin of the goods. Chinese goods, for example, are first delivered to Taiwan, Thailand or Malaysia and then transferred to the EU. In the shipping documents, these countries then appear as producing countries, whereby the EU's ban on dumping does not apply with respect to these countries.
- A method that can be detected quite easily in the course of a customs inspection can also be the incorrect classification of goods in the customs tariff.
According to Article 1 (1) of Regulation (EC) No 1225/2009, an anti-dumping duty may be levied on any product which is found to be dumped and whose release for free circulation causes injury. A product is considered to be dumped if its export price to the Community is lower than the price of the like product when sold for consumption in the exporting country, Article 1(2) of Regulation (EC) No 1225/2009.
The procedure for the determination of the anti-dumping duty is set out in Regulation (EC) No 1225/2009 and is limited in amount to the dumping margin found and, according to Article 9(5) of Regulation (EC) No 1225/2009, if a duty lower than the dumping margin is adequate to remove the injury to the Community industry, it should be less than the dumping margin.
According to Article 7 of Regulation (EC) No 1225/2009, provisional anti-dumping duties may be imposed. According to the Regulation, this occurs when a proceeding has been initiated pursuant to Art. 5 of the Regulation, a notice has been published to that effect and interested parties have been given adequate opportunity to submit information and make comments in accordance with Art. 5 (10), and a provisional determination has been made that dumping is taking place and that a Community industry is thereby injured, and that the Community interest calls for measures to remedy such injury, Art. 7 (1) Regulation (EC) No. 1225/2009. Should a provisional anti-dumping duty be imposed, the release for free circulation of the products concerned shall be conditional upon the provision of a security, equivalent to the amount of the provisional duty. Provisional anti-dumping duties are in principle valid for six months and for a maximum of nine months.
Provisional and definitive anti-dumping duties shall not be levied in lieu of, but in addition to, other import duties, Article 14 (1) of Regulation (EC) No 1225/2009.
However, anti-dumping duties are only in force for a limited period of time, i.e. only as long as it is necessary to render the injurious dumping ineffective. Definitive anti-dumping duties shall expire no later than five years from the date of their imposition or from the date of the last review, unless it is determined in a new review that there is a likelihood of continuation or recurrence of injury caused by dumping.
Importers may, upon request, obtain a refund of anti-dumping duties if they can show that the dumping margin is lower than the normal duty rate, Article 12 (8) UA 1 of Regulation (EC) No 1225/2009. Such request shall be made within 6 months of the date on which the definitive duties were established or the date on which the guarantee was definitively collected.
With regard to the circumvention of anti-dumping duties, Art. 25 of the Customs Code provides some anti-dumping protection. This provision became important mainly in the context of intra-Community assembly operations. If, after the initiation of an anti-dumping proceeding or after the imposition of anti-dumping duties, assembly facilities are newly established or assembly operations are significantly expanded, there is a presumption, if there is a temporal link, that these actions are aimed at circumventing the anti-dumping measures (ECJ, judgment of 13.12.1989 C-26/88). In this case, the company must prove that the relocation is based on proper reasons and not for circumvention of the provision. In case of circumvention of anti-dumping duties, the EU has the measure to extend already existing anti-dumping duties to imports of the like product or parts thereof from third countries. According to Art. 13 (1) sentence 2 of Regulation (EC) No. 1225/2009, circumvention is defined
- as a change in the pattern of trade between third countries and the EU which stems from a practice, process or work for which there is insufficient due cause or economic justification other than the imposition of the duty,
- where there is evidence, such as prices and/or quantities of the assembled like products, that the remedial effects of the duty are being undermined,
- and where there is evidence of dumping in relation to normal values previously established for like or similar products.
Legal acts imposing anti-dumping duties may be challenged directly before the CFI and on appeal before the ECJ pursuant to Article 263 (4) 2 TFEU. However, this is only permissible if the legal act imposing the anti-dumping duty not only constitutes an objective fact for the plaintiff, but also if the legal act contains an individualizable decision vis-à-vis the plaintiff. This is only the case for producers in third countries and importers dependent on them due to a special economic obligation.
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