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3.9.2012 Official
Journal
of
the
European
Union L
237/1
I
(Legislative acts)
REGULATIONS
REGULATION (EU) No 765/2012 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 13 June 2012
amending Council Regulation (EC) No 1225/2009 on protection against dumped imports from
countries not members of the European Community
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
not receive market economy treatment pursuant to point
EUROPEAN UNION,
(c) of Article 2(7) of the Basic Anti-Dumping Regulation
will be subject to a countrywide duty rate unless such
exporters can demonstrate that they meet the conditions
Having regard to the Treaty on the Functioning of the European
for individual treatment (‘IT’) set out in Article 9(5) of the
Union, and in particular Article 207(2) thereof,
Basic Anti-Dumping Regulation.
Having regard to the proposal from the European Commission,
(3) The
Appellate
Body
found
that
Article
9(5)
of
the
Basic
Anti-Dumping Regulation establishes a presumption that
After transmission of the draft legislative act to the national
exporting producers operating in non-market economy
parliaments,
countries are not entitled to IT and that in order to
qualify for IT, the onus is on them to demonstrate that
they satisfy the criteria of the IT test. According to the
Acting in accordance with the ordinary legislative procedure (
Appellate Body, no legal basis for such a presumption is

1 ),
provided for in the relevant WTO agreements.
Whereas:
(4) However,
the
Appellate
Body
clarified
that,
when
deter
mining a single dumping margin and a single anti-
(1) On
28
July
2011,
the
Dispute
Settlement
Body
(‘DSB’)
of
dumping duty for a number of exporters, the consistency
the World Trade Organisation (‘WTO’) adopted the
of that determination with Articles 6.10 and 9.2 of the
Appellate Body Report and the Panel Report as
WTO Anti-Dumping Agreement will depend on the
modified by the Appellate Body Report (‘the Reports’)
existence of situations indicating that two or more
in the dispute ‘European Communities — Definitive
exporters, albeit legally distinct, are in such a relationship
Anti-Dumping Measures on Certain Iron or Steel
that they should be treated as a single entity. Such situ
Fasteners from China’ ( 2 ).
ations may include: (i) the existence of corporate and
structural links between the exporters, such as common
control, shareholding and management; (ii) the existence
(2) In
the
Reports,
it
was
found,
inter
alia,
that
Article
9(5)
of corporate and structural links between the State and
of Council Regulation (EC) No
1225/2009 of
the exporters, such as common control, shareholding and
30 November 2009 on protection against dumped
management; and (iii) control or material influence by
imports from countries not members of the European
the State in respect of pricing and output. In this
Community ( 3 ) (‘Basic Anti-Dumping Regulation’) was
regard, the terms in the proposed amendments to
inconsistent with Articles 6.10, 9.2 and 18.4 of the
Article 9(5) of the Basic Anti-Dumping Regulation
WTO Anti-Dumping Agreement and Article XVI:4 of
reflecting these situations should be read in the light of
the WTO Agreement. Article 9(5) of the Basic Anti-
the Appellate Body’s clarifications without prejudice to
Dumping Regulation provides that individual exporting
terms using the same or a similar wording in other
producers in non-market economy countries which do
provisions of the Basic Anti-Dumping Regulation.
( 1 ) Position of the European Parliament of 10 May 2012 (not yet
published in the Official Journal) and decision of the Council of
30 May 2012.
(5)
On 18 August 2011, the Union notified the DSB that it
( 2 ) WTO, Report of the Appellate Body, AB-2011-2, WT/DS397/AB/R,
intends to implement the recommendations and rulings
15 July 2011. WTO, Report of the Panel, WT/DS397/R, 3 December
2010.
of the DSB in this dispute in a manner that respects its
( 3 ) OJ L 343, 22.12.2009, p. 51.
WTO obligations.

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L 237/2
EN
Official Journal of the European Union
3.9.2012
(6) For
that
purpose,
it
is
necessary
to
amend
the
provisions
supplying country concerned. Suppliers which are legally
of Article 9(5) of the Basic Anti-Dumping Regulation,
distinct from other suppliers or which are legally distinct
from the State may nevertheless be considered as a single
HAVE ADOPTED THIS REGULATION:
entity for the purpose of specifying the duty. For the appli
cation of this subparagraph, account may be taken of factors
Article 1
such as the existence of structural or corporate links between
the suppliers and the State or between suppliers, control or
Article 9(5) of Regulation (EC) No 1225/2009 is replaced by
material influence by the State in respect of pricing and
the following:
output, or the economic structure of the supplying country.’.
‘5. An
anti-dumping
duty
shall
be
imposed
in
the
appro
Article 2
priate amounts in each case, on a non-discriminatory basis
on imports of a product from all sources found to be
This Regulation shall enter into force on the third day following
dumped and causing injury, except for imports from those
that of its publication in the Official Journal of the European
sources from which undertakings under the terms of this
Union.
Regulation have been accepted.
It shall apply to all investigations initiated pursuant to Regu
The Regulation imposing anti-dumping measures shall specify
lation (EC) No 1225/2009 following the entry into force of this
the duty for each supplier or, if that is impracticable, the
Regulation.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Strasbourg, 13 June 2012.
For the European Parliament
For the Council
The President
The President
M. SCHULZ
N. WAMMEN

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Document Outline

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