The European Union’s Trade Defence Modernisation Package: A Missed Opportunity at Reconciling Trade and Competition?

Acknowledgments
Contents
Abbreviations
Chapter 1: Introduction
	1.1 The Changing Landscape of International Trade
	1.2 Research Question
	1.3 Scope
	1.4 Structure
	References
Chapter 2: Competition and Commercial Policy in the European Treaties
	2.1 Introduction
	2.2 The Treaty of Paris
		2.2.1 Competition Policy in the Treaty of Paris
		2.2.2 Trade Policy in the Treaty of Paris
	2.3 The Treaty of Rome
		2.3.1 Competition Policy in the Treaty of Rome
		2.3.2 Trade Policy in the Treaty of Rome
	2.4 The Treaty of Lisbon
		2.4.1 Competition Policy in the Treaty of Lisbon
			2.4.1.1 The Amendments to Competition Policy Introduced by the Treaty of Maastricht
			2.4.1.2 The Repeal of Article 3 (1) lit. g) EC Treaty
			2.4.1.3 The Repeal of Article 4 EC Treaty
			2.4.1.4 The Inclusion of the Term `Social Market Economy´
		2.4.2 Trade Policy in the Treaty of Lisbon
	2.5 Chapter Conclusions
	References
Chapter 3: The Legal Framework Governing EU Competition and Trade Defence Law
	3.1 Introduction
	3.2 Competition Law
		3.2.1 Institutional Structure
		3.2.2 Article 101 TFEU: Prohibition of Agreements Between Undertakings Restricting Competition
			3.2.2.1 The Elements of Article 101 (1) TFEU
				3.2.2.1.1 Undertakings as Addressees
				3.2.2.1.2 Agreement, Decision and Concerted Practice
				3.2.2.1.3 Object or Effect of the Prevention, Restriction or Distortion of Competition
				3.2.2.1.4 The de minimis Doctrine
					3.2.2.1.4.1 Appreciable Effect on Trade Between the Member States
					3.2.2.1.4.2 Appreciable Effect on Competition
			3.2.2.2 Nullity According to Article 101 (2) TFEU
			3.2.2.3 The Exception Contained in Article 101 (3) TFEU
		3.2.3 Article 102 TFEU: Abuse of a Dominant Position
			3.2.3.1 Dominant Undertakings as Addressees
			3.2.3.2 Market Definition
				3.2.3.2.1 The Relevant Product Market
				3.2.3.2.2 The Relevant Geographic Market
				3.2.3.2.3 The Temporal Market
			3.2.3.3 Dominant Position
			3.2.3.4 Abuse
			3.2.3.5 Defence
			3.2.3.6 Effect on Trade Between the Member States
		3.2.4 Merger Control
	3.3 Law of Trade Defence Instruments
		3.3.1 Introduction
		3.3.2 Institutional Structure
		3.3.3 The Basic Anti-dumping Regulation
			3.3.3.1 Dumping
				3.3.3.1.1 Normal Value
				3.3.3.1.2 Export Price
				3.3.3.1.3 Comparison
				3.3.3.1.4 Dumping Margin
			3.3.3.2 Determination of Injury to the Union Industry
				3.3.3.2.1 Product Definition
					3.3.3.2.1.1 The `Product Concerned´ Analysis
					3.3.3.2.1.2 The `Like Product´ Analysis
				3.3.3.2.2 Union Industry
				3.3.3.2.3 Injury
			3.3.3.3 Causality
			3.3.3.4 Union Interest
			3.3.3.5 Relief
				3.3.3.5.1 Anti-dumping Duties
				3.3.3.5.2 Undertakings
		3.3.4 The Basic Anti-subsidy Regulation
			3.3.4.1 Subsidised Product
				3.3.4.1.1 Subsidisation
				3.3.4.1.2 Countervailability
				3.3.4.1.3 Determination of the Amount of Subsidisation
			3.3.4.2 Determination of Injury to the Union Industry and Causality
			3.3.4.3 Union Interest
			3.3.4.4 Relief
				3.3.4.4.1 Countervailing Duties
				3.3.4.4.2 Undertakings
		3.3.5 The Trade Defence Modernisation Package
	References
Chapter 4: The Objectives of EU Competition Law and Trade Defence Law
	4.1 Introduction
	4.2 The Objectives of EU Competition Law
		4.2.1 Welfare Standard
			4.2.1.1 The Promotion of Consumers´ Welfare
			4.2.1.2 The Promotion of Societal Welfare
			4.2.1.3 The Role of Efficiency
		4.2.2 Market Integration
		4.2.3 Ensuring Effective Competition on the Internal Market
		4.2.4 Promoting Fair Competition
			4.2.4.1 Procedural Fairness
			4.2.4.2 Substantive Fairness
		4.2.5 Conclusions
	4.3 The Objectives of EU Trade Defence Law
		4.3.1 The Objectives and Principles Governing the Common Commercial Policy
			4.3.1.1 Integration of the Common Commercial Policy Into the Wider Plane of the EU´s External Action by the Treaty of Lisbon
			4.3.1.2 Free and Fair Trade
				4.3.1.2.1 Free Trade
				4.3.1.2.2 Fair Trade
			4.3.1.3 The Specific Objectives and Principles Governing the EU´s Common Commercial Policy
				4.3.1.3.1 Trade Liberalisation
					4.3.1.3.1.1 Scope
					4.3.1.3.1.2 Content
				4.3.1.3.2 Uniformity
		4.3.2 The Objectives of the EU´s Trade Defence Instruments
			4.3.2.1 Trade Defence Instruments as a Part of the Common Commercial Policy
			4.3.2.2 The Economic Rationale Behind Trade Defence Instruments
			4.3.2.3 The Legal Rationale Behind Trade Defence Instruments
				4.3.2.3.1 Compensating for the Differences Between National and International Trade
				4.3.2.3.2 Contributing to the Protection of Competition on the Internal Market
					4.3.2.3.2.1 Common Roots and Present Disparities
					4.3.2.3.2.2 Protecting Fair Competition on the Internal Market
					4.3.2.3.2.3 Restoring Effective Competition on the Internal Market
				4.3.2.3.3 Welfare Standard
		4.3.3 Conclusions
	4.4 Chapter Conclusions
	References
Chapter 5: Terminological Overlaps and Conceptual Differences in the Concepts Used in EU Competition and Trade Defence Law
	5.1 Introduction
	5.2 Differences Concerning Market Definition
		5.2.1 The Relevant Product Market
		5.2.2 The Relevant Geographic Market
	5.3 Differences Concerning the Authors of Practices Falling Within the Scope of EU Competition and Trade Defence Law
		5.3.1 No Coordination Between the Exporters Required
		5.3.2 No Market Power of the Exporters Required
	5.4 Differences Concerning Pricing Practices
		5.4.1 Discriminatory Pricing
			5.4.1.1 The Prohibition of Geographical Price Discrimination in EU Competition Law
			5.4.1.2 Dumping as a Form of Transnational Price Discrimination
			5.4.1.3 Lack of Comparability
		5.4.2 Predatory Pricing
			5.4.2.1 Competition Law
				5.4.2.1.1 The AKZO-Test
				5.4.2.1.2 The Commission´s Guidance
				5.4.2.1.3 Justification
			5.4.2.2 Anti-dumping Law
				5.4.2.2.1 Comparing Price Levels
				5.4.2.2.2 Pricing Below Cost and the `Ordinary Course of Trade´-Requirement
				5.4.2.2.3 No Predatory Intent Necessary
	5.5 Chapter Conclusions
	References
Chapter 6: The Impact of the Trade Defence Modernisation Package on the Relationship Between the EU´s Trade Defence Instrument...
	6.1 Introduction
	6.2 The Anti-competitive Effects of Trade Defence Proceedings
		6.2.1 General Restrictions to Competition
		6.2.2 Specific Restrictions to Competition
			6.2.2.1 Restrictions Related to the Initiation of Proceedings: Preparation of an Anti-dumping Complaint
				6.2.2.1.1 Information Exchanges as an Infringement of Article 101 (1) TFEU
				6.2.2.1.2 Filing of a Complaint as an Infringement of Article 102 TFEU
				6.2.2.1.3 The Changes Introduced by the Trade Defence Modernisation Package
				6.2.2.1.4 Conclusions and Further Considerations
			6.2.2.2 Restrictions Related to the Imposition of Measures
				6.2.2.2.1 Undertakings
					6.2.2.2.1.1 Potential Restrictions to Competition
					6.2.2.2.1.2 Commission Practice
					6.2.2.2.1.3 The Changes Introduced by the Trade Defence Modernisation Package
					6.2.2.2.1.4 Conclusions and Further Considerations
				6.2.2.2.2 Duties
					6.2.2.2.2.1 Potential Restrictions to Competition
					6.2.2.2.2.2 Commission Practice
					6.2.2.2.2.3 The Changes Introduced by the Trade Defence Modernisation Package
					6.2.2.2.2.4 Conclusions and Further Recommendations
	6.3 Chapter Conclusions
	References
Chapter 7: The Impact of the Trade Defence Modernisation Package on the Relationship Between the EU´s Trade Defence Instrument...
	7.1 Introduction
	7.2 Identifying the Protectionist Bias
		7.2.1 Ex officio Initiations of Investigations
		7.2.2 The New Non-standard Methodology for Constructing Normal Value in Anti-dumping Investigations
			7.2.2.1 The Criteria Used in Establishing the Existence of Significant Distortions
			7.2.2.2 The Evidence Used in Establishing the Existence of Significant Distortions
			7.2.2.3 The Benchmarks Used in Constructing Normal Value
			7.2.2.4 Commission Practice
			7.2.2.5 Conclusions
		7.2.3 Protectionism in the Level of Measures Imposed: The Changed Scope of Application of the Lesser Duty Rule and the Reforme...
			7.2.3.1 The Lesser Duty Rule
				7.2.3.1.1 The Lesser Duty Rule as a Central Feature of the Basic Regulations
				7.2.3.1.2 The Changes Introduced by the Trade Defence Modernisation Package
				7.2.3.1.3 Commission Practice
					7.2.3.1.3.1 Urea and Ammonium Nitrate
					7.2.3.1.3.2 Hot Rolled Stainless Steel
				7.2.3.1.4 Conclusions and Further Recommendations
			7.2.3.2 Injury Margin Calculation: Systematic Inaccuracies and Protectionist Tendencies
				7.2.3.2.1 The `Undercutting´ and the `Underselling´ Methodology
				7.2.3.2.2 The Modifications Introduced by the Trade Defence Modernisation Package
					7.2.3.2.2.1 The Introduction of a de minimis Target Profit
					7.2.3.2.2.2 A General `Increase of Imports from the Country Under Investigation´
					7.2.3.2.2.3 The Level of Profitability Needed to Cover Full Costs and Investments, Research and Development and Innovation
					7.2.3.2.2.4 Social and Environmental Standards
						Defining the ratione materiae
						Overlaps with EU State Aid Law
						Double Compensation as a Result of Subsidies Granted by Third States
						Lack of Transparency
				7.2.3.2.3 Conclusions and Further Recommendations
		7.2.4 The Union Interest in the Basic Regulations
			7.2.4.1 Legislative History and Structure of the Union Interest Test
			7.2.4.2 The Interests Taken into Consideration
				7.2.4.2.1 Competition Concerns During the Union Interest Analysis
				7.2.4.2.2 Competition Concerns During the Injury Analysis
				7.2.4.2.3 Environmental Policy Concerns
			7.2.4.3 The New Union Interest Test
			7.2.4.4 Conclusions and Further Recommendations
	7.3 Chapter Conclusions
	References
Chapter 8: The EU´s Modernised Trade Defence Instruments: Promoting Sustainable Development in the EU´s Trade Relations?
	8.1 Introduction
	8.2 The Integration of Non-Economic Concerns in the EU´s Common Commercial Policy
		8.2.1 Bilateral Trade Policy Instruments
		8.2.2 Unilateral Trade Policy Instruments
	8.3 Trade Defence Instruments as a Novel Instrument for the Promotion of Sustainable Development Objectives
		8.3.1 Legal Context
		8.3.2 Compatibility with the EU´s Approach for Promoting Sustainable Development in Its Trade Relations
			8.3.2.1 Tenuous Link Between Market Access and Compliance with International Environmental and Labour Law Standards
				8.3.2.1.1 The Amendments to the Basic Regulations
				8.3.2.1.2 Possible Changes to the Interests Considered During the Union Interest Test
					8.3.2.1.2.1 Legal Basis
					8.3.2.1.2.2 Contribution to the International Promotion of Sustainable Development
			8.3.2.2 No Clear Focus on the Promotion of Sustainable Development in the EU´s Trading Partners in Applying the EU´s Trade Def...
			8.3.2.3 No Dialogue Between the EU and Its Trading Partners
			8.3.2.4 Difference in Standards
	8.4 Chapter Conclusions
	References
Chapter 9: Compatibility of the Reformed Basic Regulations with WTO Law
	9.1 Introduction
	9.2 Issues Relating to the New Non-Standard Methodology for Constructing Normal Value in Anti-Dumping Investigations
		9.2.1 Dumping Margin Calculation
			9.2.1.1 Rejection of Domestic Prices Pursuant to Article 2.2 ADA
			9.2.1.2 Calculation of Normal Value Pursuant to Article 2.2.1.1 ADA
		9.2.2 The EU´s Contentious Approach to `Input Dumping´
		9.2.3 The Issue of `Double Counting´
	9.3 Issues Relating to the Inclusion of Social and Environmental Standards
		9.3.1 Compatibility with the Anti-dumping-Agreement
		9.3.2 Compatibility with the Agreement on Subsidies and Countervailing Measures
	9.4 Compatibility with Article I:1 GATT 1994
	9.5 Chapter Conclusions
	References
Chapter 10: Conclusions
Sources
	Table of Cases
		Courts of the European Union
	Advocate General Opinions
	WTO Adjudicative Bodies
	International Treaties
		International
		World Trade Organization
		European Union
	European Union Legislation
	Publications by the EU Institutions
		European Commission
		European Parliament
		European Council
	Council of the European Union
	European Court of Auditors