On 16 February 2018, the Official Journal published Regulation (EU) 2018/196 of the European Parliament and of the Council of 7 February 2018 on additional customs duties on imports of certain products originating in the United States of America (codification). The Regulation codifies the EU rules regarding the imposition of additional duties against certain products originating in the United States as a result of the United States Continued Dumping and Subsidy Offset Act (CDSOA – also known as the ‘Byrd Amendment). The WTO had found the CDSOA incompatible with various US obligations under the WTO agreements and authorized several countries to suspend the application of their tariff concessions and related obligations under the GATT. Although the Byrd Amendment was amended and then repealed, certain entries were “grandfathered” and some payments are still made to affected domestic producers under the former statute. Those payments violation the WTO rules.
The WTO permitted the EU to impose additional duties equal to the level of nullification or impairment caused every year to the Community, which an Arbitrator found to be equal to 72 % of the amount of CDSOA disbursements relating to anti-dumping or countervailing duties paid on imports from the Community for the most recent year for which data were available at that time. Initially this amounted to a 15% ad valorem additional duty on a long list of specific products listed by CN number in Annex I. Currently it amounts to 4.3% ad valorem additional duty for a limited number of products listed in Annex I (0710 40 00, ex 9003 19 00 ‘frames and mountings of base metal’, 8705 10 00 and 6204 62 31).
The codification provides (among other points) that:
1. The Commission shall adjust the level of suspension annually to the level of nullification or impairment caused by the United States’ Continued Dumping and Subsidy Offset Act (‘CDSOA’) to the Union at that time. The Commission shall amend the rate of the additional import duty or the list in Annex I under the following conditions:
(a) the level of nullification or impairment shall be equal to 72 % of the amount of disbursements under the CDSOA relating to anti-dumping and countervailing duties paid on imports from the Union for the most recent year for which data are available at that time, as published by the United States’ authorities;
(b) the amendment shall be such that the effect of the additional import duty on imports of the selected products originating in the United States represents, over one year, a value of trade that does not exceed the level of nullification or impairment;
(c) except in circumstances set out in point (e), when the level of suspension increases, the Commission shall add products to the list in Annex I; those products shall be selected from the list in Annex II following the order of that list;
(d) except in circumstances set out in point (e), when the level of suspension decreases, products shall be withdrawn from the list in Annex I; the Commission shall remove, first, products that were in the list in Annex II on 1 May 2005 and were added to the list in Annex I at a later stage; the Commission shall then remove products that were in the list in Annex I on 1 May 2005 following the order of that list;
(e) the Commission shall amend the rate of the additional import duty when the level of suspension cannot be adjusted to the level of nullification or impairment by adding or removing products from the list in Annex I.
2. When products are added to the list in Annex I, the Commission shall, at the same time, amend the list in Annex II by removing those products from that list. The order of the products remaining in the list in Annex II shall not be modified.
The former regulation (EC) No. 673/2005, and its amendments are repealed. The annexes to the codification include a list of repealed amendments and a correlation table comparing the codification provisions to the earlier (repealed) regulation.
