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The European Community’s Anti-Dumping Policy: The Quest for Enhanced Predictability, Rationality, European Solidarity and Legitimacy
Published online by Cambridge University Press: 27 October 2017
Extract
I predict the Union of the people of Europe one day will come when you England, when you France, when you Germany, all of you nations of the continent without losing your own distinctive abilities and without losing your glorious individuality, will join together in a higher body and you will find European Brotherhood. Victor Hugo
The interface between trade and competition has long been the focus of scholarship. Its international dimension has in recent years increasingly attracted the attention of commentators, international organisations in general and the European Community (EC) in particular, multilateral and regional judicial bodies, as well as nongovernmental organisations. This article analyses one dimension of this interface, namely the EC Anti-Dumping (AD) Policy directed at non-European dumped goods, and its relationship with the EC Competition Policy.
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- Research Article
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- Copyright © Centre for European Legal Studies, Faculty of Law, University of Cambridge 2003
References
** Victor Hugo, 1849, quoted in European Commission, Reviewing and Building on the Declaration of 9 May, 1950, Academic Session to Commemorate the 50th Anniversary of the declaration of 9 May 1950, Brussels, 8–9 May 2000 (Office for Official Publications of the European Communities, 2001), 116.
1 Selective literature includes: Epstein, B ‘The Illusory Conflict between Antidumping and Antitrust’ (1973) 18 Antitrust Bulletin 1 Google Scholar; Bourgeois, JHJ ‘Antitrust and Trade Policy: A Peaceful Coexistence? European Community Perspective (Part I)’ (1989) 17/2 International Business Law 58 Google Scholar; Bourgeois, JHJ ‘Antitrust and Trade Policy: A Peaceful Coexistence? European Community Perspective (Part II)’ (1989) 17/3 International Business Law 115 Google Scholar; Messerlin, PA ‘Anti-Dumping Regulations or Pro-Cartel Law?: The EC Chemical Cases’ (1990) 13/4 The World Economy 465 Google Scholar; Mendes, MM Antitrust in a World of Interrelated Economies: The Interplay between Antitrust and Trade Policies in the US and the EEC (Etudes Européennes 1990)Google Scholar; Marceau, RG Antidumping and Antitrust Issues in Free-Trade Areas (Oxford UP 1994)Google Scholar; Victor, AP and Friedman, MF ‘Antidumping and Antitrust: Pricing Schizophrenia?’ (1995) 23/1 International Business Law 23 Google Scholar; Buigues, P, Jacquemin, A and Sapir, A (eds), European Policies on Competition, Trade and Industry: Conflicts and Complementarities (Edward Elgar Publishing Ltd 1995)Google Scholar; Hoekman, BM and Mavroidis, PC ‘Dumping, Antidumping and Antitrust’ (1996) 30/1 Journal of World Trade 27 Google Scholar; Hope, E and Maeleng, P (eds), Competition and Trade Policies, Coherence or Conflict? (Routledge 1998)Google Scholar; Zäch, R (ed), Towards WTO Competition Rules: Key Issues and Comments on the WTO Report (1998) on Trade and Competition, Proceedings of the Seminar, Zurich University, 8–10 July 1999 (Kluwer Law International, 1999)Google Scholar; Jenny, F ‘Globalization, Competition and Trade Policy: Issues and Challenges’, in Zäch, ibid, 3; Cadot, O, Grether, J-M and De Melo, J ‘Trade and Competition Policy: Where do We Stand?’ (2000) 34/3 Journal of World Trade 1 CrossRefGoogle Scholar; Branton, J ‘Trade Law Meets Antitrust in the European Court: Judgment in Mukand v Council ’ (2001) 7/6 International Trade Law and Regulation 184 Google Scholar; de, Araujo|JT Jr ‘Legal and Economic Interfaces Between Antidumping and Competition Policy’ (2002) 25/2 World Competition 159 Google Scholar.
2 For example, WTO Working Group on the Interaction between Trade and Competition Policy, ‘Synthesis Paper on the Relationship of Trade and Competition Policy to Development and Economic Growth’ Note by the Secretariat, (18 September 1998) (98–3575) WT/WGTCP/W/80; OECD Trade and Competition: Frictions After the Uruguay Round, International Trade and Investment Division, Economic Department, Working Paper No 165 (OECD, 1996) OCDE/GD (96)105.
3 See, for example, the European Commission Report by a Group of Independent Experts, Chaired by K Van Miert, ‘Competition Policy in the New Trade Order: Strengthening International Cooperation and Rules’, Commission of the European Communities (1995) Com/95/359 final.
4 For example, the European Court of First Instance in Case T–58/99 Mukand Ltd, Isibars Ltd, Ferro Alloys Corporation Ltd and Viraj Impoexpo Ltd v Council of the European Union [2001] ECR II–2521 and the WTO Panel Report on United States—Anti-Dumping Act of 1916, WT/DS136/R (00–1257), 31 March, 2000.
5 See, for example, BEUC, ‘BEUC Reaction to Doha Outcome’ (30 January 2002) BEUC/X/005/2002.
6 The term ‘EC Anti-Dumping Policy’ is used to refer to both the formal legal regime on AD and its enforcement, unless otherwise indicated. Technically, however, it is not a genuine Community policy, but rather an instrument belonging to the Common Commercial Plicy.
7 Harpaz, G, The EC Anti-Dumping Policy: Turning a Blind Eye to Competition Policy Considerations? (A dissertation submitted to the University of Cambridge for the degree of Doctor of Philosophy 2002).
8 For analysis, see Cadot et al, above n 1 at 7–8.
9 This exercise is a fact-finding mission, aimed at providing sufficient information on both the exporting and the Community markets, including the examination of the conditions that facilitate dumping by foreign producers in Community markets and the likely effects of any proposed AD measures against such producers in competition policy terms. This exercise should not be equated with an economic analysis that is solely concerned with efficiency-enhancement. For the interface of law and economics, see Posner, , RA Economic Analysis of Law 5th edn (Aspen Law and Business 1998)Google Scholar. For the interface between law and economics in the field of dumping, see Bhala, R ‘Rethinking Antidumping Law’ (1995) 29/1 George Washington Journal of International Law and Economies 20 Google Scholar.
10 Jacobs, F, quoted in Bourgeois, above n 1 at 58.
11 The term ‘predatory dumping’ denotes the practice whereby the exporter sets low export prices with the intention of eliminating more efficient competitors in the importing country, gaining, in the long term, a monopolistic position and then extracting monopoly profits, thereby recouping his short-term losses, see Merkin, R ‘Predatory Pricing or Competitive Pricing: Establishing the Truth in English and EEC Law’ (1987) 7 Oxford, Journal of Legal Studies 182 CrossRefGoogle Scholar.
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13 It was Jacob Viner who warned, close to half a century ago, that what governments can do with dumping law ‘will make the escape [safeguard] clause look like small potatoes. They can, if they wish, raise the effective tariff barriers more than all the negotiations in Geneva will be able to achieve in the other direction’, quoted in Petersmann, E-U ‘Need for Reforming Antidumping Rules and Practices’ (1990) Swiss Review of International Economic Relations 179, 188. Prominent members of the leading contemporary school of thought, such as Bourgeois, Messerlin and Stanbrook, (in Europe), Bhala, Barceló, Dale, Milton Friedman, Jackson and Posner, (in the US), also use a gamut of derogatory expressions to describe AD, policies as ‘potentially far more distortive of trade patterns than the practice they were designed to deter’, Barceló, JJ ‘Antidumping Laws as Barriers to Trade—The United States and the International Antidumping Code’ (1972) 57 Cornell Law Review 491, 494 Google Scholar; are applied ‘for a purpose which is overtly anti-competitive …’, Dale, R Anti-dumping Law in a Liberal Trade Order (Macmillan 1980), 191 CrossRefGoogle Scholar. See also Acheson, K ‘The Efficiency Rationale of Antidumping Policy and other Measures of Contingency Protection: Some Further Reflections’, in Quinn, JH and Slayton, P (eds) Non-Tariff Barriers after the Tokyo Round (The Institute for Research on Public Policy 1982), 71 Google Scholar; Wood, DP ‘“Unfair” Trade Injury: A Competition-Based Approach’ 41 (1989) Stanford Law Review 1153 CrossRefGoogle Scholar; Trebilcock, MJ and York, RC (eds) Fair Exchange: Reforming Trade Remedy Law (CD Howe Institute 1990)Google Scholar; Anderson, KB ‘Antidumping Laws in the United States—Use and Welfare Consequences’ (1993) 27/2 Journal of World Trade 99 Google Scholar; de Araujo, above n 1 records critical statements of Michael Finger, Kenneth Dam, Alan Greenspan and Joseph Stiglitz.
14 For the EC’s aggressive treatment of China in the AD context, see Snyder, F ‘The Origins of the “Nonmarket Economy”: Ideas, Pluralism and Power in the EC Anti-Dumping Law about China’ (2002) 7 European Law Journal 369 CrossRefGoogle Scholar; Xiang, Liu ‘European Union Anti-Dumping Cases against China’ (2002) 36/6 Journal of World Trade 1125 Google Scholar.
15 ’Intergovernmentalism’ refers to the traditional structure of international organisations whereby each Member State retains its sovereign powers. See Weiler, JHH, The Constitution of Europe: ‘Do The New Clothes Have An Emperor?’ and other Essays on European Integration (Cambridge UP 1999), 273 Google Scholar: The focus is on negotiation, inter-state bargaining, and diplomacy. There is a relatively low level of institutionalisation, and a premium on informal and unstructured interaction. Formal sovereign equality and the loose reflexes of international law prevail.
16 ‘Supranationalism’ refers to advanced inter-state structure, the joining of which entails the loss of some sovereign powers. See Weiler, above n 15 at 12 and 273: The materia is often constitutional. The modus operandi is more structured, formal, and rule-bound.
17 ‘Infranantionalism’ relies on experts’ know-how, manifested in a wide web of advisory committees. See Weiler, above n 15 at 272: it is characterised by the relative unimportance of the national element in the decision-making. Technical expertise, economic and social interests, and administrative turf battles shape the process and outcome rather than ‘national interest’. Infranationalism strikes a balance between political intergovernmentalism and genuine legal supranationalism. Armstrong, KA ‘Rediscovering Civil Society: The European Union and the White Paper on Governance’ (2002) 8 European Law Journal. 102, 145 CrossRefGoogle Scholar: Infranationalism moves beyond this dual structure by its disregard of the law/politics dichotomy and of the Member State/Community dichotomy. For a strong philippic of Infranationalism, see Weiler, above n 15 at 284 ff. For the interplay of these three forces, see Weiler, above n 15 at 264 ff.
18 See Weiler, above n 15 at 10: The EC is an avant garde international organisation ushering forth a new model for trans-national discourse. For general survey of EC law, see Weatherill, S and Beaumont, P EU Law (Penguin Books, 1999, 3rd edn)Google Scholar. For in-depth analysis, see Mancini, GF ‘The Making of a Constitution for Europe’ (1989) 26 Common Market Law Review 595 Google Scholar; Weiler, JHH ‘The Transformation of Europe’ (1991) 100 Yale Law Journal 2403 Google Scholar; Mancini, GF and Keeling, DT ‘Democracy and the European Court of Justice’ (1994) 57 Modern Law Review 175 CrossRefGoogle Scholar; Arnull, A The European Union and its Court of Justice (Oxford UP 1999)Google Scholar; Allott, P ‘European Government and the Re-branding of Democracy’ (2002) 27 European Law Review 60 Google Scholar. For the EC and political science theory, see Jachtenfuchs, M ‘The Governance Approach to European Integration’ (2001) 39 Journal of Common Market Studies 245 CrossRefGoogle Scholar. For the EC and international relations theory, see Pollack, MA ‘International Relations Theory and European Integration’ (2001) 39 Journal of Common Market Studies 829 CrossRefGoogle Scholar.
19 For analysis, see Sauter, W Competition Policy and Industrial Policy in the EU (Clarendon Press 1997), 1–56Google Scholar, who analyses the influence that the Freiburg School had on the EC’s economic constitution.
20 For literature, see Emiliou, N and O’Keeffe, D (eds) The European Union and World Trade Law After the GATT Uruguay Round (John Wiley & Sons 1996)Google Scholar; Snyder, F International Trade and Customs Law of the European Union (Butterworths 1998)Google Scholar; Didier, P WTO Trade Instruments in EU Law (Cameron May 1999)Google Scholar; Cremona, M ‘External Commercial Policy after Amsterdam: Authority and Interpretation with Interconnected Orders’, in Weiler, JHH (ed) The EU, the WTO, and the NAFTA: Towards a Common Law of International Trade? (Academy of European Law, European University Institute, Hart 2000), 5 Google Scholar; Molyneux, , CTG Domestic Structures and International Trade: The Unfair Trade Instruments of the United States and the European Union (Hart 2001)Google Scholar; Herrmann, CW ‘Common Commercial Policy After Nice: Sisyphus Would Have Done a Better Job’ (2002) 39 Common Market Law Review 7 CrossRefGoogle Scholar. For the interface between the Common Commercial Policy and other policies, see Bourgeois JHJ and Demaret P ‘The Working of EC Policies on Competition, Industry and Trade: A Legal Analysis’, in Buigues et al, above n 1 at 65.
21 Barutciski, M ‘The Two Solitudes: Trade and Competition Policy’, Canadian Bar Association, 1998 Annual Competition Law Conference, Ottawa, 24–25 September, 1998, 3, in World Trade Organisation, United Nations Conference on Trade and Development World Bank, Third Symposium on Competition Policy and the Multilateral Trading System (6 April, 1999), 7–8.
22 Arts 25–27 (EC).
23 One of the EC activities is the maintenance of a trade policy.
24 Other related provisions are Art 300 (EC) (authority to conclude international agreements), Art 302 (EC) (maintenance of appropriate relationships with international organisations) and Art 310 (EC) (conclusion of Association Agreements).
25 Hine, RC and Padoan, PC ‘External Trade Policy’ in Hall, R, Smith, A and Tsoukalis, L (eds) Competitiveness and Cohesion in EU Policies (Oxford UP 2001), 61 Google Scholar. For the EC external relations, see Dashwood, A and Hillion, C (eds) The General Law of EC External Relations (Centre for European Legal Studies, Cambridge, Sweet and Maxwell 2000)Google Scholar.
26 For analysis, see Meunier, S and Nicolaïdes, K ‘Who Speaks for Europe? The Delegation of Trade Authority in the EU’ (1999) 37 Journal of Common Market Studies 477 CrossRefGoogle Scholar, who suggest that that feature helps insulate the policy-making process from domestic pressures and increases EC’s political stand. See also Opinion 1/75 Opinion of 11/11/1975 [1975] ECR 1355. The exclusivity of the Common Commercial Policy does not apply when Member States are equipped with an express authorisation from the Commission to act unilaterally, Case C–174/84 Bulk Oil (Zug) AG v Sun International Ltd. and Sun Oil Company [1986] ECR 559.
27 Opinion 1/75, above n 26 and Opinion 1/78 Opinion of 04/10/1979 [1979] ECR 287 1 are cases in point. But see Opinion 1/94 Opinion of 15/11/1994 [1994] ECR I–5267, for a narrower approach with respect to the EC’s competency to conclude the World Trade Organisation Agreement. Meunier and Nicolaïdes, above n 26 at 492–493 suggest that the strict construction exhibited in the latter’s judgment represents a broader trend in which the Court abandons judicial activism in favour of a more neutral entity in questions of distribu tion of competence between the different levels of the EU polity. See also Herrmann, above n 20 at 11–12. This ruling was amended by the Treaty of Nice, see Herrmann, ibid.
28 See Opinion 1/75, above n 26.
29 For analysis, see Herrmann, above n 20.
30 These include countervailing and safeguard measures. For a general overview, see Van Bael, I and Bellis, J-F Anti-Dumping and other Trade Protection Laws of the EC 3rd edn (CCH Europe 1996), 16 ffGoogle Scholar.
31 See Art 230 (EC).
32 See the ECJ judgment in Case C–149/96 Portuguese Republic v Council of the European Communities [1999] ECR I–8395. For analysis, see de Búrca, G and Weiler, JHH (eds) The European Court of Justice (Academy of European Law, European University Institute Hart 2001)Google Scholar.
33 See, for example, Herrmann, above n 20.
34 Stegemann, K ‘Anti-Dumping Policy and the Consumer’ (1985) 19/5 Journal of World Trade. 466 Google Scholar; Messerlin, above n 1; Pauwels, W, Vandenbussche, H and Weverbergh, M ‘Rent Seeking Activity Induced by European Antidumping Policy’, Credit Research Paper (Centre for Research in Economic Development and International Trade, University of Nottingham 1996).
35 For the academic debate and survey of the Court’s jurisprudence, see Bourgeois, JHJ ‘The European Court of Justice and the WTO: Problems and Challenges’, in Weiler, above n 20 at 71; Cremona, above n 20; Hine and Padoan, above n 25 at 64.
36 Art 131(1) (EC).
37 For that regime, see Morgan, C ‘Competition Policy and Anti-Dumping: Is it Time for a Reality Check?’ (1996) 30/5 Journal of World Trade 61 Google Scholar. See also above n 32, especially Case C–53/96 Hèrmes International v FHT Marketing Choice [1998] ECR I–3603, which recognised a presumption in favour of a consistent interpretation between Community law and international law. In Case C–69/89 Nakajima All Precision Co Ltd v Council of the European Communities [1991] ECR I–2069, paras 31 ff, the ECJ held that that GATT’s provisions bind the Community and that ‘the same conclusion must be reached in the case of the Anti-Dumping Code, which was adopted for the purpose of implementing Article VI of the General Agreement …. Community … is therefore under an obligation to ensure compliance with the General Agreement and its implementing measures…’. For the relationship between the AD regimes of the EC and the WTO, see also Case T–188/99 Euroalliages v Commission of the European Communities [2001] ECR II–1757, para 57ff. Hence, measures adopted by the authorities in enforcing the Basic Regulation on AD must comply with the GATT regime on AD.
38 But see Didier, above n 20, who analyses some of the consistencies between the two regimes.
39 For analysis of the reasons leading to this state of affairs, see Beseler, J-F and Williams, AN Anti-Dumping and Anti-Subsidy Law: The European Communities (Sweet and Maxwell 1986), 33 Google Scholar.
40 For analysis, see Beseler and Williams, above n 39 at 21ff.
41 Council Regulation (EEC) No 459/68 of 5 April 1968 on protection against dumping or the granting of bounties or subsidies by countries which are not members of the European Economic Community, Official Journal L 093, 17/04/1968 p 0001.
42 For literature relating to previous Basic Regulations, see Beseler and williams, above n 39.
43 Council Regulation (EC) No 3283/94 of 22 December 1994 on protection against dumped imports from countries not members of the European Community, Official Journal L 349, p 0001–0002, as amended by Council Regulation (EC) No 1251/95 of 29 May 1995, amending Regulation (EC) No 3283/94 on protection against dumped imports from countries not members of the European Community, Official Journal L 122, 02/06/1995 p 0001.
44 See Council Regulation (EC) No 2331/96 of 2 December 1996 amending Regulation (EC) No 384/96 on protection against dumped imports from countries not members of the European Community, Official Journal L 317, 06/12/1996 p 0001; Council Regulation (EC) No 905/98 of 27 April 1998 amending Regulation (EC) No 384/96 on protection against dumped imports from countries not members of the European Community, Official Journal L 128, 30/04/1998 p 0018; Council Regulation (EC) No 2238/2000 of 9 October 2000 amending Regulation (EC) No 384/96 on protection against dumped imports from countries not members of the European Community, Official Journal L 257, 11/10/2000 p 0002; Council Regulation (EC) No 1972/2002 of 5 November 2002 amending Council Regulation (EC) No 384/96 on the protection against dumped imports from countries not members of the European Community, Official Journal L, 305 07/11/2002 p 0001; Council Regulation (EC) No 452/2003 of 6 March 2003 on measures that the Community may take in relation to the combined effect of anti-dumping or anti-subsidy measures with safeguard measures, Official Journal L 069, 13/03/2003 p 0008–009.
45 For literature, see Van Bael and Bellis, above n 30; Stanbrook, C and Bentley, P Dumping and Subsidies: The Law and Procedures Governing the Imposition of Anti-dumping and Countervailing Duties in the European Community 3rd edn (Kluwer Law International 1996)Google Scholar; Müller, W, Khan, N and Neumann, H-A EC Anti-Dumping Law—A Commentary On Regulation 384/96 (John Wiley & Sons 1998)Google Scholar. For an analytical survey, see Vander Schueren, P ‘New Anti-Dumping Rules and Practice: Wide Discretion Held on a Tight Leash?’ (1996) 33 Common Market Law Review 271 Google Scholar. Holmes, P and Kempton, J ‘EU Anti-Dumping Policy: a Regulatory Perspective’ (1996) 3/4 Journal of European Public Policy 647 CrossRefGoogle Scholar; Vermulst, EA and Driessen, B ‘New Battle Lines in the Anti-Dumping War: Recent Movements in the European Front’ (1997) 31 Journal of World Trade 135 Google Scholar; MacLean, RM and Eccles, RJ ‘Change of Style not Substance: The Community’s New Approach towards the Community Interest Test in Anti-Dumping and Anti-Subsidy Law’ (1999) 36 Common Market Law Review 123 CrossRefGoogle Scholar; Molyneux, above n 20. For a comparison between EC practice and other major trading nations’ practices, see Gottlieb, R, Vander Schueren, P, Pearson, D and Georgi, K ‘AntiDumping Law and Practice in Canada, The European Community and United States After the WTO Anti-Dumping Agreement’ (Part I) (1998) 4/5 International Trade Law and Regulation 160 Google Scholar; Gottlieb, R, Vander Schueren, P, Pearson, D and Georgi, K ‘Anti-Dumping Law and Practice in Canada, The European Community and United States After the WTO AntiDumping Agreement’ (Part II) (1998) 4/6 International Trade Law and Regulation 204 Google Scholar.
46 Art 15 of the WTO Agreement on AD requires that developed countries give special regard to the unique situation of developing countries and that constructive remedies be preferred. This Art was not incorporated into the BR.
47 Yet Art 22(c) (BR) empowers the Community to apply ‘special measures’ with respect to imports from non-WTO Members.
48 See for example, Hoekman and Mavroidis, above n 1.
49 For further discussion, see Wood, above n 13; Mendes, above n 1; Marceau, above n 1; Barbuto, CM ‘Towards Convergence of Antitrust and Trade Law: An International Trade Analogue to Robinson-Patman’ (1994) 62 Fordham Law Review 2047 Google Scholar; Bhala, above n 9; Gual, J ‘The Coherence of EC Policies on Trade, Competition and Industry’, Discussion Paper No 1105 (Centre for Economic Policy Research, 1995); Cartland, M ‘Anti-Dumping and Competition Policy’ (1996) 28 Law and Policy in International. Business 289 Google Scholar; Miranda, J ‘Should Antidumping Laws be Dumped?’ (1996) 28 Law and Policy in International Business 255 Google Scholar; Bronckers, MCEJ ‘Rehabilitating Antidumping and other Trade Remedies through Cost-Benefit Analysis’ (1996) 30 Journal of World Trade 5 Google Scholar; Hoekman and Mavroidis, above n 1; Niels, G and ten Kate, A ‘Trusting Antitrust to Dump Antidumping: Abolishing Antidumping in Free Trade Agreements without Replacing it with Competition Law’ (1997) 31 Journal of World Trade 29 Google Scholar; Stanbrook, C ‘EU Competition and Anti-Dumping Policy: A Painful Encounter’, Mimeo, 11 June 1997; MacLean, RB ‘The Need to Reform the Community Interest Test in European Community Anti-dumping Law and Policy’ (1998) 4 International Trade Law and Regulation 129 Google Scholar; de C Grey, R ‘The Relationship between Anti-Dumping Policy and Competition Policy’ 31 May 1999, Report for UNCTAD (1999); BEUC, above n 5.
50 For discussion of this possibility, see Cartland, above n 49; Hoekman and Mavroidis, above n 1.
51 See Petersmann, E-U ‘International Competition Rules for the GATT-MTO World Trade and Legal System’ (1993) 27/6 Journal of World Trade 35, 75–76Google Scholar; Hoekman and Mavroidis, above n 1: This route of reform might help to defuse both market-access-related disputes and limit the use of AD actions. See also Lamy, P (13 December 2001), ‘US Steel: a Warning about Perverse Signals’, Speech to the UK Steel Association Annual Forum, London, 13 December 2001, http://europea.eu.int/comm/trade/speeches_articles/spla88_en.htm, visited on 16 December 2001.
52 See Schepel, H and Blankenburg, B ‘Mobilizing the European Court of Justice’, in de Búrca and Weiler, above n 32 at 64: The notion of ‘value pluralism’ implies that values and principles cannot be reduced to a single value or coherent set of values, nor should conflicts between reasons be interpreted as imperfection, but rather as the normal state for human beings.
53 See the analysis in the introductory section of Goyder, DG, EC Competition Law 3rd edn (Clarendon Press, 1998)Google Scholar.
54 For the latter, see Hildebrand, D, The Role of Economic Analysis in the EC Competition Rules 2nd edn (Kluwer Law International 2002)Google Scholar; Posner, above n 9 at 309–347 (US).
55 A thorough assessment of a long list of factors is required. Predatory campaign usually requires, inter alia, strong market power, significant wealth, diversified production and significant capacity on the part of the dumping party, inelastic demand for his products, high barriers to entry in both the exporting and importing markets, consumer irrationality in the importing market and slow technical growth of the dumped products. For analysis, see Merkin, above n 11.
56 For support, see MacLean and Eccles, above n 45.
57 More specifically, the larger the market share of the dumping party in the Community market, the more probable it is that it will succeed in conducting a predatory campaign. The application of measures in such a scenario might produce pro-competitive consequences. The reverse is true with respect to foreign exporters with an insignificant market share in the Community. Similarly, the more concentrated the Community industry is found to be, the more harmful the proposed measures could be in reinforcing a concentrated market structure. For analysis of different measurements of concentration, see Wood, above n 13 at 1196 ff and Barbuto, above n 49 at 2094. On the basis of the latter paradigm, Wood argues, in the US con text, that AD remedies could be tied to the concentration level of the complaining domestic producer, see Wood, above n 13 de Grey, above n 49 and Yano, K ‘Thirty Years of being a Respondent in Antidumping Proceedings: Abuse of Economic Relief can have a Negative Impact on Competition Policy’ (1999) 33/5 Journal of World Trade 31, 38 Google Scholar suggest that a single party with a dominant market position might not be entitled to the benefit of the AD provision. It is suggested that this bright-line rule might produce arbitrary results and should therefore be rejected. The findings on the contestability of both markets are also highly relevant. The higher the barriers in the foreign market, the more likely it is that dumping would be facilitated by a distorted advantage enjoyed by the dumping party at home. Under such conditions, dumping may be considered as an unfair and potentially harmful trade practice that warrants remedial action. Per contra, if the export market is found to be contestable, it is more likely that the dumping party is efficient and that his triumphal march into Community markets reflects its comparative advantage. In the latter scenario, measures are likely to pro duce anti-competitive results. The dumped products should instead be welcomed.
58 For analysis, see Didier, above n 20 at 141–144.
59See, for example, the analysis conducted under the Merger Regulation. See Hildebrand, D The Role of Economic Analysis in the EC Competition Rules (Kluwer Law International 1998), 330 ffGoogle Scholar.
60 Ibáñez, AJG The Administrative Supervision and Enforcement of EC Law: Powers, Procedures and Limits (Hart Publishing 1999), 202–204 Google Scholar.
61 Wade, W and Forsyth, C Administrative Law 7th edn (Clarendon Press 1994), 379 Google Scholar.
62 Ibáñez, above n 60 at 239.
63 Ibáñez, above n 60 at 202–204: (i) Legal rules and the principle of legality; (ii) The principles of unreasonableness and proportionality; (iii) The doctrine of manifest error/misuse of power; (iv) Procedural limits; (v) Judicial review.
64 See Lindsey, B ‘The US Antidumping Law: Rhetoric versus Reality’ (2000) 34/1 Journal of World Trade 1, 28ffGoogle Scholar: An affirmative determination of price discrimination should require the findings of a significant and stable differential between a foreign producer’s export price and normal value and the existence of government policies that insulate the foreign producer’s domestic market from foreign competition.
65 For analysis, see Didier, above n 20, 76 ff.
66 For extensive analysis, see Petersmann, above n 51 at 62–63; Hoekman, BM and Mavroidis, PC ‘Antitrust-based Remedies and Dumping in International Trade’ (Centre for Economic Policy Research, London 1994), 24 Google Scholar; Barbuto, above n 49 at 2084-2089; Wood, above n 13 at 1200.
67 For detailed account, see Bhala, above n 9 at 126–128.
68 For extensive discussion, see Marceau, above n 1 at 24–26; Morgan, above n 37 at 66–67; Bhala, above n 9 at 136.
69 See Morgan, above n 37; Miranda, above n 49.
70 For further analysis, see Marceau, above n 1 at 35.
71 Didier, above n 20 at 79–80.
72 For the EC regime in the area of safeguard measures, see Van Bael and Bellis, above n 30 at 18.
73 Relying on a bright line rule of, for example, 15% of market share held by the alleged dumping party.
74 See Miranda, J, Torres, RA and Ruiz, M ‘The International Use of Antidumping 1987–1997’ (1998) 32/5 Journal of World Trade. 5, 63 Google Scholar; Lindsey, above n 64 at 30.
75 See Didier, above n 20 at 79.
76 Under Art 3.4 (BR), the EC authorities assess cumulatively the effects of imports that are subject to the same investigation, although they derive from different producers and/or from different countries.
77 See Case T–171/97 Swedish Match Philippines Inc v Council of the European Union [1999] ECR II–3241.
78 See MacLean and Eccles, above n 45.
79 The reference to the need to give special consideration to the restoration of effective competition must be abolished, as it wrongly presupposes that all forms of dumping are a manifestation of ineffective competition. Moreover, the phrase that calls upon the institutions not to take measures when they ‘can clearly conclude that it is not in the Community interest’ to apply measures should be rephrased as follows: ‘The institutions ought not to adopt measures unless they can clearly conclude that that imposition is in the Community interest’.
80 Marceau, above n 1 at 151: Consumer groups and commercial users are not generally aware of the dumping investigation. The period of 30 days is insufficient for them to make representations on this issue and should therefore be prolonged. Hoekman and Mavroidis, above n 66 at 22–25: The Community interest examination should come into play at the same time that injury to producers and the causal link between dumping and injury is established, as opposed to the final stage of an investigation. Otherwise, users are required to counteract by well-established evidence with insufficient time to present their arguments.
81 Holmes, P with Kempton, J ‘Study on the Economic and Industrial Aspects of Anti-Dumping Policy’, Sussex European Institute Working Paper No 22 (Sussex European Institute 1997), 23 Google Scholar: Costs, benefits and the concept of fairness may not be prone to a scientific estimation.
82 See Stegemann, above n 34 at 481; Vandoren, P ‘The Interface between Anti-Dumping and Competition Law and Policy in the European Community’ (1986) Legal Issues of European Integration 1, 13–15 Google Scholar; National Consumer Council Working Paper No 1 ‘International Trade and the Consumer: Consumer Electronics and the EC’s Anti-Dumping Policy’ (February 1990); For recent developments, see European Commission, Commission of the European Communities, White Paper ‘European Governance’, the Commission of the European Communities, Brussels, (25 July, 2001), COM(2001) 428 final; European Commission, Report from the Commission on European Governance (Luxembourg 2003).
83 Above n 82.
84 National Consumer Council, above n 82.
85 For analysis of the relevant work of the OECD in that regard, see Marceau, above n 1 at 136–137.
86 For analysis, see Weatherill and Beaumont, above n 18 at 161–163. See also Art 41(2) of the EU Charter of Fundamental Rights which provides that the right to good administration means the existence of an obligation of the administration to give reasons for its decision.
87 For analysis, see Weatherill and Beaumont, above n 18 at 76–80. For the issue of transparency, in its broader context, see European Commission (2001), above n 82 at 10: ‘The Institutions should work in a more open manner. Together with the Member States, they should actively communicate about what the EU does and the decisions it takes … This is of particular importance in order to improve the confidence in complex institutions’. Art 42 of the EU Charter of Fundamental Rights provides that any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to European Parliament, Council and Commission documents.
88 See European Commission, Reviewing and Building on the Declaration of 9 May 1950, Academic Session to Commemorate the 50th Anniversary of the declaration of 9 May 1950, Brussels, 8–9 May 2000 (Office for Official Publications of the European Communities, Luxembourg 2000); EC Commission (2003), above n 82.
89 See Bronckers, MCEJ Papers presented at the Symposium on Competition Policy and the Multilateral Trading System: a Dialogue with Civil Society, WTO Working Group on the Interaction between Trade and Competition Policy (21 September 1999). For the same theme in broader contexts, see EC Commission (2003), above n 82 at 20.
90 See above n 46; Didier, above n 20 analyses the near absence of proper level-on-trade adjustments; definition of related parties for the purpose of computing the export price; the strict conditions of start-up and currency depreciation adjustments and the expiry review.
91 For a maximum period of 4 years. The sunset proceedings which allow for the extension of measures should be abolished.
92 Art 15 (WTO Uruguay Code on AD) calls on the WTO Members to give special consideration when considering the application of measures against developing countries. This provision was not incorporated in the BR. For the need to take into account the interests of these countries, see Kufuor, KO ‘The Developing Countries and the Shaping of GATT/WTO Antidumping Law’ (1998) 32/6 Journal of World Trade 167 Google Scholar; WTO Ministerial Conference, Fourth Session, Doha, 9–14 November 2001 ‘Ministerial Declaration, para 28, 14 November 2001 (01–5769), WT/MIN(01)/DEC/W/1; European Commission WTO Ministerial, Doha: Assessment of Results for EU, Memo, Doha (14 November 2001), http://trade-info.cec.eu.int/europa/2001newround/p14.php, visited on 15 November 2001; See also the WTO’s decision in Appellate Body Report on European Communities—Anti-Dumping Duties on Imports of Cotton-type Bed Linen from India, WT/DS141/AB/R (01-0973), 1 March 2001, providing a broad interpretation for this duty.
93 Measures in force must be reviewed on a systematic annual basis to examine whether they remain inevitable. For further suggestions, see WTO, Ministerial Conference, Fourth Session, Doha, 9–14 November, 2001 ‘Implementation-Related Issues and concerns’ Decision’ (14 November 2001) (01–5768), WT/MIN(01)W/10, 5.
94 de Grey, above n 49. This proposal is problematic. The fact that one undertaking has, in the past, breached Community law should not, in principle, prevent it at all times from obtaining protection from anti-competitive practices.
95 See Goyder, above n 53 at 553 who analyses the Courts’ case law under which Art 81 (EC) does not permit anti-competitive cooperation as a response to dumping.
96 See Whish, R Competition Law 4th edn (Butterworths 2001), 854 Google Scholar, for the EC law and practice on the exchange of information between competitors. For recent comment, see Temple Lang, J ‘Case Note, Case T–58/99, Mukand and others v Council, Court of First Instance, Judgment of 19 September 2001’ (2002) 39 Common Market Law Review 633 CrossRefGoogle Scholar.
97 Under the Noerr-Pennington doctrine, attempts to solicit favourable legislation or administrative decisions are exempt from antitrust law, even where the outcome of a bona fide petition has anti-competitive ramifications, see Eastern Railroad Presidents Conference v Noerr 365 US 127, 5 LEd 2d 464, 81 SCt 523 (1961), 136–39. This immunity was invoked successfully in numerous cases in the context of AD proceedings. It is, however, a qualified immunity, as it is subjected to the sham exception. Sham occurs when the domestic industry intentionally or knowingly submits a baseless complaint or false information, or when it files or threatens to file a complaint to force the other party to make a concession in an unrelated area. See Davidow, J ‘Antitrust Issues Arising out of Actual or Potential Enforcement of Trade Laws’ (1999) 2/4 European Journal of International Law 681, 692–93Google Scholar.
98 See, by analogy, Case T–111/96 ITT Promedia NV v Commission of the European Communities [1998] II–2937, with respect to limitations on the right to initiate judicial proceedings.
99 For exposition of the institutional aspects of the AD Policy, see Holmes and Kempton, above n 45.
100 Molyneux, above n 20 at 194: The Commission is a unique body in a unique institutional set-up. It is a hybrid creature somewhere between a bureaucratic and a political organisation. It has a political role, normative tasks, and administrative and meditative functions, having to make compatible the administrative, technical, ideological and national positions when participating in the Community’s trade policy decision-making.
101 See the Nobel Prize Laureate North, North, DC, Institutions, Institutional Change and Economic Performance (Cambridge UP 1990)Google Scholar. See also Pollack, above n 18 for analysis of rational-choice institutionalism.
102 Meunier and Nicolaïdis, above n 26 at 497.
103 Buigues et al, above n 1 at xxi. This reform might prove, however, to be too ambitious. The Community industrialists would probably not consent to it.
104 See the situation in Poland, Hoekman and Mavroidis, above n 66 at 24.
105 Hoekman and Mavroidis, above n 66 at 24. However, the duty of confidentiality imposed on DG Trade by the Basic Regulation renders the implementation of that proposal an arduous task.
106 See Bourgeois and Demaret, above n 20 at 110–112.
107 Ibáñez, above n 60 at 292, analyses the benefits of informal means of co-ordination in a complex organisational arrangement.
108 The college of Commissioner can serve as a forum through which pressure can be exerted on DG Trade to mitigate its stance with respect to proposed measures.
109 For example, an increase of personnel in DG Trade and technical assistance granted by DG Competition. See Ibáñez, above n 60 at 148 ff: There is room for improving the capacity of the Community in general and that of the Commission in particular. The latter has recognised the need for the provision of adequate resources both at Community and national level in order to narrow the ‘management deficit’. Yet increase in personnel, improved training, and greater financial support, are insufficient. Improving and rationalising internal procedures is also required.
110 MacLean, above n 49. See also Weiler, above n 15 at 94: According to a Thatcherite perception, Community membership continues to be assessed in terms of its costs and benefits to a Member State. The Community is conceived not as a redefinition of the national self but as an elaborate and sophisticated arrangement of achieving long-term maximisation of the national interest in an interdependent world. Its value is measured with the coin of national utility and non-Community solidarity.
111 For analysis, see Pollack, above n 18.
112 Stanbrook, above n 49; Stanbrook, C Guest Lecturer, Centre for European Legal Studies, Cambridge, 20 January 1999.
113 Compare with Lavdas, KA and Mendrinou, MM, Politics, Subsidies and Competition: The New Politics of State Intervention in the European Union (Edward Elgar 1999), 146 Google Scholar, who argue in favour of strengthening the Commission’s role in the area of state aid.
114 See ibid, for the same argument in the state aid context.
115 For analysis, see MacLean and Eccles, above n 45.
116Holmes and Kempton, above n 45 at 661–662. For the same theme in broader terms, see Weiler, above n 15 at 276: ‘Intergovernmentalism may be a desirable feature of Community and Union governance or a necessary evil, but, whether one or the other, it is a central feature of the system and will, in all likelihood, stay for the foreseeable future’.
117 For the application of this theory in different contexts, see Weiler, above n 15 at 34, who himself draws inspiration from the work of Albert Hirschman.
118 Reich, A ‘From Diplomacy to Law: The Juridicization of International Trade Relations’ (1997) 17 Northwestern Journal of Law and Business 775 Google Scholar.
119 For analysis of the democratic deficiencies of the Commission and the Council, see Ibáñez, above n 60 at 226 ff; Temple Lang, J ‘How Much do the Small Member States Need the European Commission? The Role of the Commission in a Changing Europe’ (2002) 39 Common Market Law Review 315, 328 Google Scholar.
120 Admittedly, this proposal is not in line with the call, raised below, to enhance the supranational nature of the AD Policy.
121 See Draft European Convention (2 April 2003), Conv 650/03, Art I–46.
122 See below n 139–57.
123 See Molyneux, above n 20 at 226; Lamy, P ‘Global Policy without Democracy?’ Conference on the ‘Participation and Interface of Parliamentarians and Civil Societies for Global Policy’, Berlin 26 November 2001, http://europa.eu.int/comm/trade/speeches_articles/spla85_en.htm, visited on 28 November 2001. But see Weiler, above n 15 at 273: It is neither feasible nor desirable that the European Parliament close the intergovernmental democracy deficit. The correct locus for such action is within the Member States by, or at the behest of, national parliaments.
124 Lavdas and Mendrinou, above n 113 at 144.
125 This is in line with the Commission’s approach to the reform of European Governance, European Commission (2001), above n 82 at 16: ‘What is needed is a reinforced culture of consultation and dialogue; a culture which is adopted by all European Institutions and which associates particularly the European Parliament in the consultative process, given its role in representing the citizen’.
126 By scrutinising the executive’s stance in the Council and in the AD committee. See European Commission (2001), above n 82.
127 For discussion, see Joerges, C ‘Bureaucratic Nightmare, Technocratic Regime and the Dream of Good Transnational Governance’, in C, Joerges and E, Vos (eds) EU Committees: Social Regulation, Law and Politics (Hart Publishing 1999), 3 Google Scholar. For elaborate treatment of this theme, see Joerges and Vos, ibid; Andenas, M and Türk, A (eds) ‘Delegated Legislation and the Role of Committees in the EC’ (Centre of European Law, King’s College, London, Kluwer Law International 2000)Google Scholar. See also above n 17.
128 Farber, DA and Frickey, PP, Law and Public Choice: A Critical Introduction (The University of Chicago Press 1991), 36–37 CrossRefGoogle Scholar; Lamy, above n 123; See Art I–45(3) of the Draft European Convention, above n 121: ‘Every citizen shall have the right to participate in the democratic life of the Union …’.
129 See European Commission (2001), above n 82 at 17 and 19: Confidence in expert advice plays an increasingly significant role in preparing and monitoring decisions. The Institutions rely on specialist expertise to anticipate and identify the nature of the problems and uncertainties that the Union faces, to take decisions and to ensure that risks can be explained clearly and simply to the public.
130 Art 6 [Treaty of the European Union]. The Commission decided to reform European governance, based on the principles of openness, participation, accountability, effectiveness and coherence. As to the notion of ‘participation’ of civil society in the governance of the EC, see European Commission (2001), above n 82 at 10ff.
131 President of the EC Commission, quoted in Joerges, C ‘Guest Editorial: The Commission’s White Paper on Governance in the EU—a Symptom of Crisis?’ (2002) 39 Common Market Law Review 441, 445 CrossRefGoogle Scholar.
132 For a broader perspective, see European Commission (2001), above n 82 at 17–19 which notes the need to rationalise the system of ad hoc consultation bodies because of the ‘lack of clarity about how consultations are run and to whom the Institutions listen’. Public perceptions ‘are not helped by the opacity of the Union’s system of expert committees’; Schäfer GF ‘Linking Member State and European Administrations—The Role of Committees and Comitology’, in Andenas and Türk, above n 127 at 3, 22 proposed that committees should make their records, including the votes, accessible to the public and publish their membership. Neyer, J ‘The Comitology Challenge to Analytical Integration Policy’, in Joerges and Vos (eds), above n 127 at 219, 238: Enhanced transparency in EC committees would encourage delegates to behave according to the definitions of given legislative discourses and provide national parliaments with a more accurate account of what governmental delegates in committees are doing.
133 Armstrong, above n 17 at 103–04: For much of the history of European integration, the concrete achievements have been the product of trans-national technocratic decision-making among elite-political actors. Yet, the problem of EU governance lies in bridging the gap between such mode of governance and its democratic legitimation. The notion of ‘European civil society’ may help to bridge that. See also Scott, C. ‘The Governance of the European Union: The Potential for Multi-Level Control’ (2002) 8 European Law Journal 59, 61 CrossRefGoogle Scholar: new initiatives of the Commission in the area of New Governance are likely to provide greater effectiveness and coherence, as they concentrate policy and executive power further in the hands of the Commission. For a contrasting view, see Temple Lang, above n 119 at 327.
134 Joerges, C ‘“Deliberative Supranationalism”—Two Defences’ (2002) 8 European Law Journal 133, 151 CrossRefGoogle Scholar: The ‘supranational’ element places restraints upon the ‘internal’ decision-making processes in constitutional states resulting from the guarantee of European rights, from commitments to take account of ‘foreign’ interest, from the binding of these nation states by trans-national principles and duties to justify their policies. The ‘deliberative’ element bases its validity claims not simply on a hierarchy of sources of law, but on constitutional ties of politics.
135 See Molyneux, above n 20 at 202: The committees’ function is to achieve agreements whereby a balance is kept between adequate technical solutions to cope with globalisation, Member States’ interests and the general Community interest. See above n 127 and Gehring, T ‘Bargaining, Arguing and Functional Differentiation of Decision-Making: The Role of Committees in European Environmental Process Regulation’, in Joerges and Vos (eds), above n 127 at 195, 217 for the same approach in a broader context.
136 Armstrong, above n 17 at 105.
137 For comment on this theme, see Temple Lang, above n 119; Scott, above n 133 at 62.
138 See Weiler, JHH ‘Epilogue: “Comitology” as Revolution—Infranationalism, Constitutionalism and Democracy’, in Joerges and Vos (eds), above n 127 at 339.
139 For an elaborate survey of judgments exhibiting a reluctance to interfere with the authorities’ findings, see Van Bael and Bellis, above n 45 at 335, n 480.
140 For support, see Petersmann, E-U ‘Constitutional Principles Governing the EEC’s Commercial Policy’, in Maresceau, M (ed) The European Community’s Commercial Policy after 1992: The Legal Dimension (Martinus Nijhoff Publishers 1993), 21 Google Scholar. See Ward, A, Judicial Review and the Rights of Private Parties in EC Law (Oxford UP 2000), 12 Google Scholar ff for the link between the EC’s democratic deficit and the need for robust judicial scrutiny of EC measures.
141 See, for example, Case T–88/98 Kundan Industries Ltd. v Council of the European Union [2002] (not yet reported); Case C–76/00 Petrotub SA and Republica SA v Council of the European Union [2003] (not yet reported).
142 Scott, J and Trubek, DM ‘Mind the Gap: Law and the New Approaches to Governance in the European Union’ (2002) 8 European Law Journal 1, 9 CrossRefGoogle Scholarff: EU law has been instrumental in promoting the transformation of Europe from international, to supranational, or even constitutional order. Thus the premises underpinning EU law have a symbolic value, and their ‘tainting’ with the values of New Governance might be seen to threaten the integrity of ‘law’ as such, and the broader dynamics of integration.
143 See, for example, Weiler, JHH ‘Epilogue: The Judicial aprés Nice’, in de Búrca and Weiler, above n 32 at 215. Scott, J ‘On Kith and Kine (and Crustaceans): Trade and Environment in the EU and WTO’ in Weiler (ed), above n 20 at 125. Howse, R ‘Adjudicative Legitimacy and Treaty Interpretation in International Trade Law: The Early Years of WTO Jurisprudence’, in Weiler, above n 20 at 35. Farber and Fricky, above n 128 argue, in the US context that Public Choice theories do not justify an extensive resort to the notion of ‘reasonableness’ in scrutinising the legislature’s and executive’s economic choices.
144 See ch 5 of Harpaz, above n 7.
145 For support, see Bengoetxea, J, MacCormick N and Soriano, LM ‘Integration and Integrity in the Legal Reasoning of the European Court of Justice’, in de Búrca and Weiler, above n 32 at 43 who are of the opinion that the rule of reason and the principles of proportionality and non-discrimination are the criteria of coherence, the guarantors of plausible connections among reasons, assisting the courts in optimally weighing and balancing colliding principles and policies, and solving conflicts of reasons in which economic freedoms are at stake. Sauter, above n 19 explains that the Freiburg School did perceive the courts to be in charge of a balancing exercise in the context of safeguarding the economic constitution.
146 For discussion, see Farber and Frickey, above n 128 (in the US context).
147 Ely, JH Democracy and Distrust: A Theory of Judicial Review (Harvard UP 1980)Google Scholar.
148 Ely asserts that one of the reasons for the need to place heavy reliance on procedural balance is the fact that the US Constitution is mainly concerned with non-positive legal norms. The same cannot be said of the EC Treaty.
149 See Case T–256/97 BEUC v Commission of the European Communities [2000] ECR II–101. But see above n 142.
150 See Scott, above n 143; Howse, above n 143 and the ECJ ruling in Case C–269/90 Technische Universität München v Hauptzollamt München-Mitte [1991] ECR I–5469, para 14. For support, see Marceau, above n 1 at 133. See also Howse, above n 143 at 42: Democratic legitimacy for decisions, including those of the more directly representative organs, derives not simply from an authorisation by a crude majoritarian or mass will but from the fact that complex procedures and institutional disciplines have been followed.
151 See Gilmore, G The Ages of American Law (Yale UP 1977), 110–11Google Scholar: ‘The values of a reasonably just society will reflect themselves in a reasonably just law. The better the society, the less law there will be. In heaven there will be no law, and the lion will lie down with the lamb. The values of an unjust society will reflect themselves in an unjust law. The worse the society, the more law there will be. In Hell there will be nothing but law, and due process will be meticulously observed’.
152 See Case T–213/97 Eurocotton and others v Council of the European Union [2000] ECR II–3727.The Council did not adopt the Commission’s proposal for definitive measures, as a simple majority in support of such measures could not be secured.
153 See Walter Hallstein, the first President of the Commission: ‘We are not in business, we are in politics’, quoted in Temple Lang, above n 119 at 326.
154 See Case C–149/96 Portuguese Republic v Council of the European Communities [1999] ECR I–8395.
155 After all, in deciding on definitive measures, the Council is not exercising a purely legislative role, but rather a role which combines legislative and executive functions. See A–G Jacobs in Case C–233/99 Nachi Europe GmbH v Hauptzollamt Krefeld [2001] ECR I–1197, para 28. The executive nature of AD proceedings can provide legitimacy for greater judicial intervention in scrutinising the Council’s decisions. For discussion of the use of the notion of reasonable ness, see Ibáñez, above n 60 at 202–04.
156 For that purpose, one should consider obliging Member States to provide detailed reasoning of their stance in the Advisory Committee and in the Council.
157 For the reform of the Judiciary under the Treaty of Nice, see Meij, AWH ‘Guest Editorial: Architects or Judges? Some Comments in Relation to the Current Debate’ (2000) 37 Common Market Law Review 1039 CrossRefGoogle Scholar and Weiler, above n 143. The latter proposed the creation of specialised chambers in matters such as AD.
158 Snyder, above n 14 at 414: The Ordoliberals placed great emphasis on ‘economic constitutionalism’, namely the importance of legal constraints on governmental, including administrative action. They considered that decision-making should be subject to legal principles and clear legal rules. The conjunction of general concepts, such as reasonableness, and detailed rules guiding administrative action was entirely consistent with their ideas.
159 Tharakan, PKM, Vermulst, EA and Tharakan, J ‘Interface between Anti-dumping Policy and Competition Policy: A Case Study’ (1998) 21 The World Economy 1035 CrossRefGoogle Scholar, 1037–038; Lamy, above n 51.
160 See Horlick, G ‘The Speedbump at Seattle’ (2002) 3 European Journal of International Law 167 CrossRefGoogle Scholar, addressing the difficulties in dealing with that issue in the framework of the Seattle WTO Ministerial Conference negotiations of 1999.
161 See Bhagwati, J Protectionism (The Massachusetts Institute of Technology Press 1988), 29 Google Scholar for interesting comments on the position of Richard Cobden and others in the context of the Corn Laws campaign in England.
162 Robert Schuman: ‘What we do, we are not doing for our nations. We are doing it with a vision far beyond our borders, thinking of what the whole of humanity is expecting of us’,quoted in European Commission, above n 88 at 120.
163 For discussion, see Bhagwati, above n 161 at 26–31. See Hennis, M ‘Europeanization and Globalization: The Missing Link’ (2001) 39 Journal of Common Market Studies 221 CrossRefGoogle Scholar, for a political science perspective of the link between Europeanization and globalisation.
164 Smith, A, An Inquiry into the Nature and Causes of the Wealth of Nations (The Modern Library, New York, 1776 reprinted in 1937), 424 Google Scholar.
165 Stegemann, K ‘The Efficiency Rationale of Anti-dumping Policy and Other Measures of Contingency Protection’, in Quinn, and Slayton, , above n 13 at 21 Google Scholar; above n 82.
166 For the notion of a European civil society, seexs Armstrong, above n 17 at 115. See EC Commission (2003), above n 82 at 8 for the latest on improving bottom-up involvement in EU policy shaping and implementation.
167 Allott, P ‘The Crisis of European Constitutionalism: Reflections on the Revolution In Europe’ (1997) 34 Common Market Law Review 439, 467 ffCrossRefGoogle Scholar; Allott, P ‘The Concept of European Union’, in Dashwood, A and Ward, A (eds) 2 (2000) 2 Cambridge Yearbook of European Legal Studies 31 CrossRefGoogle Scholar, especially 58–59; Allott, above n 18 at 70: The general will of the Union is distinct from, and not merely an aggregation of, the general wills of the Member State. The common interest of the Union should be an integral part of the common interest of each of its Member States. See also Weiler, above n 15 at 92–93: The importance of the Community notion of community ‘rests on the very fact that it does not involve a negation of the state. It is neither state nor community. The idea of community seeks to dictate a different type of intercourse among the actors belonging to it, a type of self-limitation in their self-perception, a redefined self-interest, and, hence, redefined policy goals. To the interest of the state must be added the interest of the community. But crucially, it does not extinguish the separate actors who are fated to live in an uneasy tension with two competing senses of the polity’s self, the autonomous self and the self as a part of a larger community, and committed to an elusive search for an optimal balance of goals and behavior between the community and its actors’.
168 Temple Lang, above n 119; Weiler, JHH ‘A Constitution for Europe? Some Hard Choices’ Working Paper, published in Harpaz, G (ed) (2003) 10 The Newsletter of the Israeli Association for the Study of European Integration Google Scholar.
169 Ibid.
170 See Elazar, DJ Federalism and Political Integration (Turtledove Publishing 1979) (US), 1 Google Scholar: ‘Federalism … offers an alternative to the centre-periphery model … the measure of…integration is not the strength of the center as opposed to the peripheries; rather the strength of the framework. Thus both the whole and the parts can gain in strength simultaneously and, indeed, must do so on an interdependent basis’.
171 Molyneux, above n 20 at 148 and 264.
172 But the economic integration which has been taking place in Europe in recent years did not produce these results. Herrmann, above n 20 at 29: The treatment by the Treaty of Nice of the Common Commercial Policy reflects efforts to disguise the reluctance to trade in national sovereign rights for the common good.
173 See Guohua, Y and Jin, C ‘The Process of China’s Accession to the WTO’ (2001) 4 European Journal of International Law 297 CrossRefGoogle Scholar. But compare with Molyneux, above n 20 at 148 and 264: Globalisation affects the domestic sphere of each country, yet such changes are path-dependent and the possibility of eliminating structural differences is limited.
174 For further analysis, see Liu, above n 14.
175 Graafsma, F, ‘Recent WTO Jurisprudence in the Field of Anti-Dumping’ (2001) 28 Legal Issues of European Integration 337 CrossRefGoogle Scholar.
176 EC Commission (2003), above n 82 at 25.
177 For elaborate examination of this theme, see Molyneux, above n 20. For recent developments, see Draft Convention (2003), above n 121 at Art I–3(4).
178 For critique, see Falk, R. Predatory Globalization: A Critique (Polity Press 1999)Google Scholar.
179 The Economist, ‘The anti-dumping Dodge’, 10 September 1988, Vol 308, r 7567, p 77(2)Google Scholar.
180 See Miranda et al, above n 74 at 7.
181 WTO, World Trade Organisation Annual Report (WTO 2002), 73ff.
182 EC, Submissions from the European Communities Concerning the Agreement on Implementation of Article VI of GATT 1994 (Anti-Dumping Agreement) (July 2002).
183 Weiler, above n 15 at 93.
184 US v Topco Associates Inc 405 US 596 (1972), 610.
185 For an early comment on this theme, see Viner, J, Dumping: A Problem in International Trade (University of Chicago Press 1923, reprinted in 1966), 93 Google Scholar.