This is a guest post from trade lawyer Victor Crochet:
On 31 January 2020, the United Kingdom (UK) formally left the European Union (EU). An 11-month transition period that is scheduled to end on 31 December 2020 is now in place. During this period, new trade remedy investigations will continue to be carried out by the EU on behalf of the UK and all existing EU trade remedy measures will continue to be applied upon importation into the UK.
On 6 February 2020, the UK published guidelines and the legal framework (Primary legislation in the Taxation (Cross-border Trade) Act 2018 (the Taxation Act) and Secondary legislation in The Trade Remedies (Dumping and Subsidisation) (EU Exit) Regulations 2019 ) on how the new Trade Remedies Investigations Directorate (TRID) will investigate possible cases of dumped and subsidised imports and unforeseen surges in imports, once the transition period is concluded.
In addition, in preparation for the end of the transition period (31 December 2020), the TRID identified which measures may be of interest to the UK industry following a call for evidence.
Anti-dumping, anti-subsidy and safeguard measures that the UK decides to retain over from the EU will be made subject to a Notice of Determination. This Notice of Determination will ensure that the EU measures remain applicable once the transition before ends (31 December 2020).The first example of a Notice of Determination can be found here.
Measures for which a Notice of Determination has been issued will then undergo a transition review led by the TRID. Transition reviews are provided for under Part 12 of the UK Trade Remedies (Dumping and Subsidisation)(EU Exit) Regulations 2019. A transition review must be initiated before the EU measures would normally expire. If the EU measures are already ongoing an expiry review at the end of the transition period (31 December 2020), the UK will initiate a transition review within one month of the end of the transition period. If no transition review is initiated by those dates, the measures will expire. Similarly, if the EU measures expire because no expiry review is initiated the EU before the expiry date of the measures during the transition period, the measures will not be taken over by the UK.
As a result, the UK will most likely initiate transition reviews starting with the EU trade remedy measures which are already undergoing an expiry review followed by the next measures due to expire. Article 98(13) allows the UK to initiate transition reviews before the end of the transition period (31 December 2020). In this regard, the UK just initiated its first transition review on Welded Tubes and Pipes from Belarus, China and Russia as the original EU measures are undergoing an expiry review.
Interestingly, the transition reviews will assess whether the current measure is appropriate for the UK market and whether it should be changed or terminated. Unlike expiry reviews, this transition review is a complete review of the measure as the TRID may (i) amend the product scope of the measures, (ii) recalculate the dumping/subsidy and injury margins and (iii) repeal the measures for lack of injury or UK’s economic interests.
Many questions remain unanswered at this stage regarding how these transition reviews will take place and what will exactly come out of them. These transitions reviews and the pace at which they take place might also create issues under WTO rules. All in all, this is quite an exciting development for trade (remedy) lawyers.
