European Commission’S Practice on Exporters Found not to Dump in the Aftermath of WTO Mexico Rice

The WTO Panel has found in Mexico Rice that, as set forth by Article 5.8 of the Anti-Dumping Agreement, there shall be "immediate termination" of an anti-dumping investigation where the authorities determine that the dumping margin of individual exporters is de minimis. The only way to “immediately” terminate an investigation of such exporters is to exclude them from the scope of the anti-dumping-order. In addition to the Panel's holding in Mexico Rice, the legal doctrine supports the Panel’s logical conclusion that an exporter found not to dump in the original investigation cannot be subject to a “changed circumstances” (or “interim”) review. Indeed, reviewing such exporters would actually result in them being subject to the initial anti-dumping order. However, at EU level, the anti-dumping legislation provides that there shall be “immediate termination” where it is determined that the dumping margin is de minimis, provided that it is only the “investigation” that shall be terminated, while exporters found not to dump remain subject to the “proceeding” and may be “automatically” reinvestigated in “any subsequent review” with respect to the country concerned. Consequently, it appears that the EU anti-dumping legislation is contrary to the WTO case-law. This conclusion is supported by the Commission’s findings in Welded Tubes (December 2008), in which the Commission seemed to accept the rationale behind Mexico Rice. However, the Commission’s interpretation of the Mexico Rice decision in Ironing Boards (October 2009) generates contradictory results, as it opens the gate to the initiation of new anti-dumping investigations limited to exporters found not to dump, while the initial anti-dumping measures are still in force. The present article examines the Commission’s approach in Welded Tubes and scrutinizes whether initiating the Ironing Boards case was indeed in accordance with the Panel’s decision in Mexico Rice