External Participants v. Internal Interests: Principles of EU Administrative Law in Anti-dumping Investigations

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Table of Contents: I. Introduction. – II. Discretion or clear rules? The “fundamental importance” of the administrative law framework. – III. Interests involved in anti-dumping policy-making. – III.1. Decision to initiate investigations. – III.2. Decision on anti-dumping duties. – IV. Three functions of participation. – IV.1. Mechanism to collect expertise and information. – IV.2. Participation as constraining the exercise of administrative powers. – IV.3. Democratic anti-dumping regime: participation as contributing to accountability? – V. Concluding discussion: do administrative law principles protect equally?

Abstract: Anti-dumping policy is key among the EU trade defence instruments. Although formally a political regime to restrict cheap imports to the EU, its daily operations target individual companies, predominantly from third countries. Finding a balance between multilateral trade rules and the individualised and international decision-making requires a well-functioning administrative procedure to protect the rights of the defence. Anti-dumping decision-making is exercised according to WTO-compliant rules laid down in the Basic Regulation (i.e. Regulation (EU) 2016/1036) which governs the Commission’s exercise of discretion. The EU has put in place a procedurally elaborated and territorially blind administrative framework, which invites external participation and promotes reciprocity in third-country procedures for EU producers. The framework extends beyond the rights of the defence for those affected by the decisions, to a broader participation. Formally respecting the rights of participants, including their interests, and treating them equally regardless of geographical origin does not negate the fact that certain interests weigh more than others. The disparity is not created by inadequacies or limitations of administrative law, but rather by the overall framing of the process to cater to the needs of domestic EU industry and political tit-for-tat thinking. The lack of soft law rules further augments executive discretion in anti-dumping decision-making, and accountability for Commission choices is difficult to enforce. In addition to insisting on transparency and the rights of the defence, a complementary way to increase and improve accountability would be to acknowledge a more substantive duty to state reasons in anti-dumping policy-making.

Keywords: trade defence instruments – anti-dumping procedure – external interests – EU administrative law – rights of the defence – equal treatment. 

European Papers, Vol. 2, 2017, No 2, pp. 543-570
2499-8249 - doi: 10.15166/2499-8249/168

* Research Fellow, Faculty of Law, University of Helsinki, emilia.korkea-aho@helsinki.fi.

** Postdoctoral Researcher, Faculty of Law, University of Helsinki, suvi.sankari@helsinki.fi.

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