Renato Antonini, Jones Day
Renato Antonini at Jones Day discusses the challenges faced in trade investigations when it comes to handling confidential data, and the impact it has on the interests of the parties involved.
In anti-dumping, anti-subsidy and other trade defence proceedings, investigating authorities collect a significant amount of confidential data. This data is needed to calculate the dumping margins, the subsidy margins and the injury margins as well as to evaluate the injury suffered by the domestic industry. In the present article, I will discuss the treatment of such confidential data in the European Union (EU), and the significant issues that arise in that context, especially from the perspective of the rights of defence of the interested parties.
In the EU, only the investigating authority – namely the European Commission – has access to the full set of confidential data. All interested parties have instead only partial access to confidential data. In particular, while interested parties have their own confidential data, they will not have access to the confidential data of other interested parties. As the aforementioned analyses by the Commission will often involve the combined data of several interested parties, the interested parties will not have access to these calculations.
The EU industry, for instance, may have full access to the data used to assess whether injury exists. But this will not always be the case, as it will depend on whether there is a sole producer or whether the industry is assisted by one single consultant with access to the injury data of all participating EU producers. In any event, the EU industry has no access to dumping and subsidy calculations, nor to the assessment of price effects and the calculation of the injury margin.
Exporting producers will have no access to the price effects and injury margin calculations, nor to the calculation of the numeric factors used to assess whether injury exists. Exporting producers, in principle, have access to their dumping calculation, except in either of the following situations.
First, when an exporting producer has no sales in the domestic market, the Commission might resort to article 2.1 of the EU basic anti-dumping Regulation. If so, the Commission can apply an approach (the WTO consistency of which is very dubious) whereby it uses prices of other sellers or producers to compute the normal value of the exporting producer who has no sales in the domestic market. In this case, the relevant exporting producer will have no access to the data concerning its normal value, since this is confidential data belonging to another exporter.
Second, if – in accordance with article 2.7 of the EU basic anti-dumping Regulation – the investigated country is considered a non-market economy country, the dumping margin will generally be calculated on the basis of data from an analogue country. Also, in this case exporting producers will have no access to the dumping calculation, which is based on confidential data provided by third parties. Depending on the data sources used by the Commission under the proposed new methodology for addressing “significant distortions”, a similar situation might arise under that methodology.
The upstream and downstream industries cannot access the dumping calculations, the price effects analysis, the injury margin calculation or the injury data. Basically, they have no access whatsoever to the relevant data.
Under EU law, and in particular in accordance with article 19 of the basic anti-dumping Regulation, if data is not disclosed to other interested parties because it is considered confidential, non-confidential versions thereof must be provided. Non-confidential versions must in theory be in sufficient detail to permit a reasonable understanding of the confidential data. In the exceptional circumstances that a summary of the relevant information is not possible, a statement of reasons explaining why the summary is not possible must be provided. The system implemented in the EU mirrors that provided by WTO law in article 6.5 of the WTO Anti-Dumping Agreement and article 12.4 of the WTO SCM Agreement.
In practice, however, the level of transparency in trade defence investigations carried out by the Commission is largely insufficient, to the detriment of the rights of defence of interested parties. Information is often, very generously, treated as confidential, even in the absence of any explanation justifying the confidentiality thereof. Moreover, the non-confidential versions of confidential data – the so-called versions “open for inspection by interested parties” – at best provide very limited information, and are often entirely meaningless. In any event, even when an interested party has access to meaningful non-confidential versions of the data of all other interested parties, such non-confidential versions will not allow it to review the calculations made on the basis of the actual confidential data.
Consequently, the system currently administered in the EU does not allow any party to present its case on all elements of relevance to the outcome. No interested party has access to the full set of data, and the reliability of the totality of the calculations is entirely left to the Commission. The first question is whether this situation complies with WTO and EU law. Below I will elaborate on why, in my view, the answer is no. The second question is whether, regardless of the legal appraisal, it is desirable to leave the task to ensure the correctness of the data and calculations exclusively to the Commission. Also in this case my answer is no: I believe that transparency would benefit all players in trade defence investigations, including the Commission.
When it comes to confidential information and the summary thereof, the system as currently administered by the Commission fails to comply with the stringent requirements of WTO law. In the vast majority of cases, the data provided to interested parties is manifestly not “in sufficient detail to permit a reasonable understanding of the substance of the information submitted in confidence.” Furthermore, confidential treatment is often granted without an adequate showing of good cause. Indeed, the Commission often grants confidential treatment even if there is no justification, as long as (some form of) a non-confidential version is provided.
The Appellate Body in EC – Fasteners explained:The obligation remains with the investigating authority to examine objectively the justification given for the need for confidential treatment. If information is treated as confidential by an authority without such a “good cause” showing having been made, the authority would be acting inconsistently with its obligations under Article 6.5 to grant such treatment only “upon good cause shown”.
The Commission must therefore analyse the request for confidentiality and grant it only if there is good cause. The panel in China – GOES also clarified that the obligations provided for in article 6.5.1 of the WTO Agreement fall upon the investigating authority. It is thus for the Commission to ensure that summaries are:“in sufficient detail to permit a reasonable understanding of the substance of the information submitted in confidence” and to decide when, in exceptional cases, the “information is not susceptible of summary”.
Since good cause is often not even analysed, and non-confidential summaries tend to be largely deficient, and taking into account that it is for the Commission to ensure full compliance with the WTO provisions governing the treatment of confidential data, the system administered by the Commission as regards to confidentiality in trade defence investigations fails to comply with the EU’s WTO obligations.
Under EU law, the Commission is not even allowed to categorically deny access to confidential data. The confidentiality requirements provided for by article 19 of the basic anti-dumping Regulation should be balanced against the rights of defence.
Recent cases confirm the growing push towards transparency in trade defence proceedings. In Jinan v Council, (not appealed) the General Court held that it does not follow from article 19 of the basic anti-dumping Regulation that the protection of confidential data requires exclusion, in principle, of any possibility of disclosing that information. Rather, a request for access to confidential information should be assessed taking into account the particular situation of the interested party who requests access to that information. The General Court considered that the interests safeguarded by the special protection which business secrets enjoy must be balanced against the rights of defence of interested parties
Similarly, in Case T‑442/12 Changmao Biochemical Engineering v Council (not appealed) the General Court reaffirmed that interested parties should be placed in a position during the administrative procedure in which they could effectively make their views known on the correctness and relevance of the facts and circumstances alleged and on the evidence presented by the Commission in support of its allegation concerning the existence of dumping and the resultant injury. The General Court stressed again that the obligation to respect confidential information cannot deprive an interested party’s rights of defence of their substance.
The position taken by the General Court in these cases is not surprising. The General Court observed that the fact of having the detailed calculations made by the Commission available to it and the data used for those calculations, is, in general, capable of enabling an interested party to make observations that are more useful for their defence. They can then verify exactly how the Commission used the data and compare them with their own calculations, which would enable them to identify possible errors made by the Commission that would otherwise be undetectable. The General Court’s position is moreover in line with an increasing focus on transparency and respect for the rights of defence in EU case law more generally. This evolution is also impacting trade defence proceedings.
The case law of the Court of Justice of the European Union confirms that, in addition to being under an obligation to provide meaningful non-confidential information, the Commission is under a specific obligation to balance the rights of defence and the protection of confidential information which, in certain circumstances, will require the disclosure of such confidential data. This confirms that, in addition to failures to assess good cause and to provide meaningful non-confidential summaries, the Commission’s practice of categorically refusing any access to such confidential data violates EU law.
The Court of Justice of the European Union is now even providing full access to confidential data in the framework of court proceedings concerning trade defence investigations, under article 103 of the Rules of Procedure. Very recently, in an ongoing court proceeding concerning trade defence measures, the General Court ordered the Commission to provide full access to confidential data concerning several calculations and analyses it carried out in the underlying administrative proceedings. This access was granted only to the lawyers, and made subject to a confidentiality undertaking. The access took place by allowing the lawyers to analyse the data and calculations on a computer placed in the Registry of the General Court in Luxemburg, under the surveillance of a Registry official.
The Commission, in order to comply with WTO and EU law, should radically improve access to confidential and non-confidential data in trade defence investigations. A radical change is also desirable for all players. The impossibility to access data is an impediment to a correct and efficient administration of trade defence proceedings. A multitude of endless arguments could be avoided simply by allowing parties to access the data and calculations made. This would allow them to identify mistakes or would lead them to simply accept that there are no mistakes.
Moreover, a review of the calculations by interested parties would greatly improve the reliability and correctness of the decisions made. The calculations made by the Commission are complex and will inevitably include some mistakes. It is in the interest of the Commission and the whole of the EU that those mistakes are corrected, to ensure that the final determinations reached are based on an accurate representation of the state of the EU industry and the behaviour of exporting producers.
Of course, this does not mean that interested parties’ confidential data should be made public. There are ways to provide for access to confidential data in a way that balances the different interests at stake. The Commission could limit access to external consultants. Access to data could be limited to access at the Commission’s premises on a computer of the Commission, without having the possibility to take a copy of the calculations, just like the Court of Justice of the European Union allows. The Commission could further require that the external consultants provide guarantees about the absence of any further disclosure of the information in question. Inspiration could also be found in the Commission’s practice in antitrust investigations, where the calls for increased transparency have led to the setting up of a system that allows interested parties to access confidential data.
Access to confidential data is possible and desirable. It is granted in foreign jurisdictions without any problems. It is granted in proceedings before the Court of Justice of the European Union. It is granted by the Commission in antitrust investigations. And I believe that it will eventually be granted by the Commission in trade defence proceedings.
Last but not least, let’s not ignore that increased transparency is, in general, greatly needed in the EU: the Commission’s exclusive access to source data and the lack of any review of the Commission’s calculations is not a good thing in administrative proceedings. The secrecy surrounding trade defence investigations can be detrimental, not only to the reliability of the outcome of those investigations, but also to the credibility of the Commission and the EU more generally.