European Court of Justice Rules on Anti-Dumping Duty Refunds for Ferro-Silicon Imports

Strategic Insights -

In a detailed judgment issued on November 15, 2018, the General Court of the European Union ruled on an application by RFA International, LP, for the annulment in whole or in part of Commission Implementing Decisions concerning applications for a refund of anti-dumping duties paid on imports of ferro-silicon originating in Russia. The judgment provides significant insights into the application of anti-dumping duty refunds and the complexity of determining normal value and export price in such cases.

Key Takeaways:

  • The General Court dismissed the application by RFA International, LP, for the annulment of Commission Implementing Decisions concerning applications for a refund of anti-dumping duties paid on imports of ferro-silicon originating in Russia.
  • The Court ruled that the Commission was correct in determining the normal value and export price of ferro-silicon imports from Russia, taking into account the fact that RFA International, LP, was an importer related to CHEMK and KF, and that it was necessary to construct the export price on the basis of the price of the first resale to an independent buyer after importation into the European Union.
  • The Judgment emphasizes the importance of determining the single economic entity in anti-dumping duty refunds, highlighting the case law of the Court of Justice and the General Court on this matter.
  • The Court also considered the methodology used in the investigation and the application of Article 2(9) and Article 11(9) and (10) of Regulation (EC) No 1225/2009 (now Article 2(9) and Article 11(9) and (10) of Regulation (EU) 2016/1036) in relation to the calculation of the constructed export price.
  • The General Court considered the similarity in methodology used by the authorities in the current case to that used in the interim review procedure and during the investigation that led to the initial regulation.
  • The Judgment underlines the significance of the adjustment made by the Commission to the export price of the products imported from Russia, aiming to determine the free-at-Union-frontier price, before duty, required for the calculation of the dumping margin.

Statistics:

  • The Commission found a significant risk of a continuation of dumping for imports from Russia, which led to a 43% dumping margin in relation to the free-at-Union-frontier price, before duty.
  • During the dumping investigation period corresponding to 2012, the resale price to an independent buyer in the European Union did not reflect the level of anti-dumping duties in 99% of cases.
  • The attractiveness of the EU market and the production capacity in Russia were among the factors considered by the Commission in determining the likelihood of a continuation or recurrence of dumping.
  • The Commission maintained the anti-dumping duty of 22.7% applicable to exports of CHEMK's and KF's products since the initial regulation entered into force.

Sources:

  • Judgment of the General Court (Ninth Chamber) of 15 November 2018, Case T-113/15, RFA International, LP v European Commission.
  • Commission Implementing Regulation (EU) No 60/2012 of 16 January 2012, terminating the partial interim review pursuant to Article 11(3) of Regulation (EC) No 1225/2009 of the anti-dumping measures applicable to imports of ferro-silicon originating, inter alia, in Russia.
  • Commission Implementing Regulation (EU) No 360/2014 of 9 April 2014 imposing a definitive anti-dumping duty on imports of ferro-silicon originating in the People's Republic of China and Russia, following an expiry review pursuant to Article 11(2) of Regulation (EC) No 1225/2009.