European Union: Entry Into Force Of EU's Modernized Trade Defense Rules

After five years of inter-institutional discussions, the European Parliament ("Parliament") and the Council of the European Union ("Council") have adopted Regulation (EU) 2018/825 ("Modernization Regulation"),1 which substantially updates the trade defense instruments ("TDIs") legislation of the European Union ("EU"). The Modernization Regulation entered into force on June 8, 2018, and the new trade defense rules it provides for will start to apply to all new investigations initiated on or after this date.

The adopted text reflects the inter-institutional agreement that was reached between the European Commission ("Commission"), the Parliament and the Council on December 5, 2017, and provides for amendments to the EU's basic anti-dumping and anti-subsidy legislation, as set forth respectively in Regulation (EU) 2016/1036 and Regulation (EU) 2016/1037.2

In Commission President Juncker's own words, the Modernization Regulation is, together with the EU's new dumping methodology addressing cost and price distortions,3 part of the EU's plan to improve its trade defense rules to "face today's challenges in global trade [and] defend European producers and workers when others distort the market or don't play by the rules."4

The main features of the Modernization Regulation can be summarized as follows:

  • Investigation periods will be shortened, notably with anti-dumping investigations having shorter deadlines for imposing provisional measures and to conclude investigations;
  • The Commission will be able to impose higher duties, as the so-called "lesser duty rule" will no longer apply—in all cases, in anti-subsidy investigations and, in case of raw material distortions,5 in anti-dumping investigations—provided that the non-application of the lesser duty rule is in the EU's interest;
  • The target price of the EU industry used to determine injury margins will a minima reflect a target profit of 6 percent, and potentially higher;
  • Social and environmental considerations, as resulting from core International Labour Organization standards and environmental agreements, will be taken into account when constructing the target price of the EU industry and when deciding whether to accept price undertakings. Changes in relation thereto may result in interim reviews being initiated;
  • Predictability and transparency will be increased for exporters and importers through the implementation of a three-week pre-disclosure window whereby interested parties will be notified in advance of the imposition or non-imposition of provisional measures and be given an opportunity to comment. However, a safeguard mechanism is foreseen to prevent risks of stockpiling during this pre-disclosure window;
  • Anti-dumping or countervailing duties paid while an expiry review investigation is ongoing will be refunded if an investigation concludes that the relevant measures should be terminated;
  • The Commission theoretically will be entitled to impose anti-dumping or countervailing duties on products shipped offshore, although, in practice, additional implementing measures need to be adopted before this becomes a reality; and
  • The Commission's reporting obligations have been extended, notably to cover amendments brought by the Modernization Regulation.

In addition, the Modernization Regulation provides for rules enhancing the participation in investigations, or clarifying existing rules, as follows:

  • Provisions are made to facilitate the participation of small and medium-size enterprises and to allow for the participation of trade unions in TDI proceedings;
  • Fear of retaliation is now officially recognized as a "special circumstance" warranting ex officio initiation of investigation by the Commission, although this appears to have limited practical resonance;
  • Registration of imports, which permits the imposition of definitive anti-dumping or countervailing duties up to 90 days before the imposition of provisional measures, will be promoted;
  • Conditions under which undertakings can be accepted have been clarified;
  • Amendments have been made to the rules relating to anti-circumvention proceedings to reflect existing practice and experience; and
  • Existing practices, including those resulting from the World Trade Organization's rules, have been codified. In particular, the Modernized Regulation acknowledges the possibility for the Commission to adopt non-binding interpretative guidance, subject to certain consultations requirements.

The text of the adopted Modernized Regulation is the same as the December 2017 inter-institutional agreement; it has simply been formally endorsed by the Council and the Parliament.

Correspondingly, detailed information on the changes brought about by the Modernization Regulation can be found in Mayer Brown's January 30, 2018, legal update, Trade Defense Instruments: Analysis of the Negotiated Proposal on Modernization.6


1 Regulation (EU) 2018/825 of the European Parliament and of the Council of 30 May 2018 amending Regulation (EU) 2016/1036 on protection against dumped imports from countries not members of the European Union and Regulation (EU) 2016/1037 on protection against subsidised imports from countries not members of the European Union, OJ L 143, 7.6.2018, p. 1, available at:

2 Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on protection against dumped imports from countries not members of the European Union (codification), OJ L 176, 30.6.2016, p. 21, and Regulation (EU) 2016/1037 of the European Parliament and of the Council of 8 June 2016 on protection against subsidised imports from countries not members of the European Union (codification), OJ L 176, 30.6.2016, p. 55.

3 For more information on this new methodology, see Mayer Brown's legal update of 21 December 2017, EU Adopts New Dumping Methodology Addressing Cost and Price Distortions, available at:

4 See DG TRADE's press release, EU trade defence: stronger and more effective rules enter into force, 7.06.2018, available at:

5 The concept of "raw materials distortions" however differs from that of "significant distortions" under the new, non-standard, dumping calculation methodology.

6 Available at:

Visit us at

Mayer Brown is a global legal services provider comprising legal practices that are separate entities (the "Mayer Brown Practices"). The Mayer Brown Practices are: Mayer Brown LLP and Mayer Brown Europe – Brussels LLP, both limited liability partnerships established in Illinois USA; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales (authorized and regulated by the Solicitors Regulation Authority and registered in England and Wales number OC 303359); Mayer Brown, a SELAS established in France; Mayer Brown JSM, a Hong Kong partnership and its associated entities in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. "Mayer Brown" and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions.

© Copyright 2018. The Mayer Brown Practices. All rights reserved.

This Mayer Brown article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions