The long standing debate over reform of the EU's trade defence regime is set to be resurrected, with the Commission to launch a soft reform of its procedures as early as July 2009. This matter was due to be discussed with Member State trade officials on 12 June 2009. Hong Kong's business community, whose interests in mainland China are often subject to the rigorous procedures in place, will be interested in having an overview of the planned reforms, which essentially focus on improving transparency in the EU's trade defence investigations.

Improved access to the files for inspection by interested parties: The European Commission envisages that better presentation of data in the files for inspection should be in place from 1 July 2009. The files will be indexed in date order and will record the submission and use of files where a summary is not possible. There will also be an improvement in the contents of such files, including matters such as a record of hearings and on-the-spot verifications.

The Commission will also provide guidelines to explain what can constitute limited (i.e., confidential) information and how such information can be submitted in a version for inspection by interested parties. It is also considering (at a later stage) the introduction of the files for inspection by interested parties in an electronic format.

Improved disclosure and timeframe to react: The reform plans to improve the quality of the disclosure of the findings at the provisional and definitive stage of the investigation. Disclosure comprises the details underlying the essential facts and considerations upon which provisional measures have been, and definitive measures will be, based.  They thus provide an opportunity for interested parties to comment on the findings made at key stages of the investigation and thus exercise their rights of defence. The plan by the end of the year is that disclosures by the Commission should address all issues raised by parties with a well reasoned explanation given for each decision taken. Efforts also need to be made in order to grant interested parties more time to react to disclosure at the definitive stage of the investigation, rather than merely resorting to the 10-day minimum period.

Hearing Officer: The reform proposes that the Hearing Officer, whose office has played a very successful role since its inception in April 2007, play a key role in the determination of what information should be determined as limited, while at the same time ensure the quality of the files for inspection by interested parties. An intention was also expressed that parties be provided with the opportunity to request a confrontation hearing (comprising all parties) before the Hearing Officer following provisional disclosure. Indeed, the reform envisages that the role and status of the Hearing Officer will have a formal mandate in 2010.

User-friendly website: An overhaul of the current Trade Defence Instruments website is planned to occur before September 2009. The idea is to make the website more user-friendly by including alert notifications of the initiation of investigations, case timetables, and lists of up-to-date measures in force and expired measures. Interested parties will be able to follow cases online and find relevant information on the rights and obligations of parties to the investigation. A novel plan is to include a restricted area whereby interested parties with authorisation from the Commission can have access to the anti-dumping questionnaires for each case as well as updated information on documents added to the files for inspection by interested parties.

Shorter questionnaires: The Commission is planning to reduce the length and complexity of anti-dumping questionnaires. This is primarily to encourage the participation of importers, retailers and consumer groups which often oppose measures insofar as they raise prices in the Community.

SMEs: small and medium sized companies are also a priority of the new reforms. The Commission is planning to introduce measures such as a dedicated help-desk, simplified questionnaires, and special assistance in filing complaints in order to facilitate the full participation by SMEs in trade defence investigations.

A number of the above-mentioned reforms ought to be particularly welcomed by the multitude of potential interested parties in Hong Kong and mainland China. Of particular benefit to exporting producers will be the improvement of the quality of the disclosure (which in many cases, especially for companies without Market Economy Treatment (MET), can be quite limited); the will to increase the 10-day deadline for comments on the definitive disclosure; and the improved access to the files for inspection which will certainly increase the transparency of the proceeding vis-à-vis exporting producers. The fact that the website will become more user-friendly will also be helpful for parties involved in trade defence proceedings.

Of course, it remains to be seen how these reforms will eventually work in practice, and whether all interested parties will benefit in an equal and non-discriminatory fashion from such reforms. In this respect, an enhanced role for the Hearing Officer could be beneficial in providing a fixed and independent point of reference for exporting producers in disputes over matters concerning transparency and the rights of defence.

There is also the question of whether these soft reforms offer too little to exporting producers in the Chinese mainland. They are certainly a far cry from the radical overhaul of the EU trade defence regime envisaged during the era of Commissioner Peter Mandelson (now over). It should be noted that the proposed reforms do not concern matters that require legislative change or are otherwise contentious. No revisions are planned, for example, to alleviate the burden on exporting producers in mainland China caused by the present MET regime.

The proposed reforms do not impact on the tight deadlines and ever-detailed information required in respect of MET investigations, nor the fact that exporting producers are often subject to a dual MET/anti-dumping questionnaire response verification. Nor, moreover, is mention made of the disclosure requirements in relation to MET findings and determinations. Enhanced transparency is certainly to be welcomed, but presently does not address the primary issues in trade defence investigations that sometimes negatively affect exporting producers in mainland China.