1. The UK Trade Remedies Regime: Review of Existing EU Trade Orders
ACITA National Meeting
30 April 2019, London
Yves Melin, Partner, Steptoe
Danyal Arnold, Associate, Steptoe

2. Introduction The legislative framework of the UK trade remedies regime
When will the UK trade remedies regime begin to operate: Withdrawal Agreement vs No Deal
The review of existing EU remedies
The commencement of new investigations

3. The Legislative Framework
The Trade Remedies Bill – establishes the Trade Remedies Authority (the TRA) (until it is passed the functions of the TRA will be carried out by the SoS/DIT (Reg 1 DSR 2019)
Taxation (Cross-Border Trade) Act 2018 (the Customs Act 2018) – lays out the broad powers and functions of the TRA (see s.13 and Schedules 4 and 5)
Trade Remedies (Dumping and Subsidisation) (EU Exit) Regulations 2019 (the DSR 2019) – supplements the Customs Act 2018; provides more detailed powers and functions and definitions for dumping and subsidy investigations
The Trade Remedies (Increase in Imports Causing Serious Injury to UK producers) (EU Exit) Regulations supplements the Customs Act 2018; provides more detailed powers and functions and definitions for safeguard investigations [will not cover today]

4. Withdrawal Agreement vs No Deal
When will this legislative framework begin to be used?

5. Withdrawal Agreement
UK will remain subject to the EU’s trade remedy regime until the end of the transition period (end of 2020, possibly extended to end of 2022) Rationale: “Unless otherwise provided in this Agreement, Union law shall be applicable to and in the United Kingdom during the transition period.”(Article 127 of the Withdrawal Agreement) As there is no express exclusion of the EU’s basic anti-dumping, anti-subsidy and safeguard regulations and the Commission implementing regulations imposing anti- dumping, anti-subsidy, and safeguard measures, the entirety of the EU’s trade remedy environment will remain in place under the withdrawal agreement.

6. Withdrawal Agreement
The EU’s trade remedy regime, and the EU’s trade remedies would continue to apply to the UK even after the end of the transition period if the provisions in the ‘Northern Ireland Backstop’ were to apply. Rationale: ‘The Union's trade defence regime, as well as the Union's Generalised Scheme of Preferences (GSP), shall cover both parts of the single customs territory. The Union shall consult the United Kingdom on any trade defence measures or actions under the GSP regime which it considers taking. At least 6 months before the end of the transition period, the Joint Committee shall set up the procedures for the application of this paragraph.’ Article 4(3) of Annex 2 to the Protocol on Ireland and Northern Ireland

7. Withdrawal Agreement Conclusion
EU trade remedies regime will continue to operate until the end of transition and/or the backstop
BUT
The TRA/DIT will undertake a review of existing EU trade remedies to determine whether appropriate once transition/backstop come to an end

8. No Deal
Should the UK Brexit on 31 October 2019, then the Customs Act would prevent the Withdrawal Act 2018 from transposing EU customs law into the UK (including the trade remedies orders) under paragraph 1 of Schedule 7. Instead, Regulation 95 of the DSR 2019 would transpose selected EU trade remedies into UK law
Conclusion
The UK would have left the EU trade remedies regime
The TRA/DIT would conduct their reviews of existing EU orders immediately from Brexit date
The TRA/DIT would begin operating independently investigating new reviews which relate to the UK from Brexit date

9. Reviews of EU Orders Call for evidence in November 2017
Which EU remedies should be maintained in the UK and reviewed to decide the appropriate level of duty once the UK is operating its own independent trade remedies framework.
Maintain those remedies that met three criteria:
the Government has received an application to maintain those measures from UK businesses which produce products in the UK that are subject to EU trade remedies measures;
that a sufficient proportion of UK business support the application; and
the market share of the UK businesses which produce those products is above a certain level.

10. Reviews of EU orders
In February 2019, the UK Government published a provisional list of the 43 trade remedies it considered had met its criteria and the 66 that had not. interest-in-existing-eu-trade-remedy-measures/outcome/final-findings-of-the-call- for-evidence-into-uk-interest-in-existing-eu-trade-remedy-measures

11. Reviews of EU Orders
Part 12 of the DSR 2019 contains the main legal framework under which a review will be conducted.
Maintained orders will continue to attract the same rate as the transposed EU order (Reg 95 DSR 2019)
The review must consider whether:
dumping/subsidisation would continue and injury to the UK industry would occur if the order was removed (Reg 98(7) DSR 2019)
Whether it is in the UK’s economic interest (Reg 100(3) DSR 2019)
The level and form of the measure is appropriate (Reg 98(8) DSR 2019)
TRA/DIT must then determine whether the EU order should be varied or revoked (Reg 100(2) DSR 2019)
SoS must accept recommendation unless against public interest or the TRA could not reasonably have made its determination re: economic interest

12. Process of a Review Notice of Initiation Registration of interest
Questionnaires and sampling
Deficiency Letter
Verification Visits
Hearings
Analysis of evidence and calculation of the duty
Economic Interest Test
Statement of essential facts and opportunity to comment
Notice of final determination
Appeals

13. Implications for EU Trade Remedies
Brexit will impact the EU’s own trade remedies measures as determined on basis of EU-28. In the past, when the EU grew to include new member states, the Commission has permitted interested parties to request reviews of the EU’s measures. It is expected that the same will happen in this reverse situation, when a member state leaves the Union.

14. Next Steps? If no deal or withdrawal agreement comes into force:
Relevant businesses should:
register their interest in the case within the time period set out by the TRA once the notice of initiation has been published
contact the European Commission, with a view to obtain a recalculation of the duty in the EU if favourable to them
Useful guidance: dumped-or-subsidised-goods

15. Contact Yves Melin Avocat Danyal Arnold Solicitor +32 2 626 0512
Danyal Arnold
Solicitor