Taxation (Cross-border Trade) Act 2018

PART 2 U.K. Dumping and subsidisation investigations

Dumping and subsidisation investigations U.K.

8 (1) The TRA may investigate— U.K.

(a) whether goods have been or are being dumped in the United Kingdom, and

(b) whether the dumping of the goods has caused or is causing injury to a UK industry in those goods.

(2) References in this Schedule to a “dumping investigation” are to an investigation under sub-paragraph (1).

(3) The TRA may investigate—

(a) whether goods which have been or are being imported into the United Kingdom are subsidised, and

(b) whether the importation of the subsidised goods has caused or is causing injury to a UK industry in those goods.

(4) References in this Schedule to a “subsidisation investigation” are to an investigation under sub-paragraph (3).

Commencement Information

I1 Sch. 4 para. 8 in force at 4.3.2019 at 11:59 a.m. by S.I. 2019/429, reg. 2 (with regs. 4-9)

Initiation of a dumping or a subsidisation investigation U.K.

9 (1) The TRA may initiate a dumping or a subsidisation investigation in relation to goods only if— U.K.

(a) it is requested to initiate an investigation in an application made—

(i) by or on behalf of a UK industry in the goods (“the applicant UK industry”), or

(ii) in exceptional circumstances, by the Secretary of State,

(b) it is satisfied that the application contains sufficient evidence that—

(i) the goods have been or are being dumped in the United Kingdom and the dumping has caused or is causing injury to a UK industry in those goods, or

(ii) as the case may be, the goods have been or are being imported into the United Kingdom and are subsidised, and the importation of the subsidised goods has caused or is causing injury to a UK industry in those goods,

(c) it is satisfied that it appears from that evidence that—

(i) the volume of dumped goods (whether actual or potential), and the injury, is more than negligible, and the margin of dumping in relation to those goods is more than minimal, or

(ii) as the case may be, the volume of subsidised goods (whether actual or potential), and the injury, is more than negligible, and the amount of the subsidy in relation to those goods is more than minimal, and

(d) the market share requirement is met or the TRA waives the requirement in relation to the application.

(2) The market share requirement is met if—

(a) in the case of an application under sub-paragraph (1)(a)(i), the TRA is satisfied that the applicant UK industry has a share of the market for like goods for consumption in the United Kingdom (whether produced there or elsewhere) which is sufficient to justify initiating the investigation;

(b) in the case of an application under sub-paragraph (1)(a)(ii), the TRA is satisfied that a UK industry in the goods has a share of the market for like goods for consumption in the United Kingdom (whether produced there or elsewhere) which is sufficient to justify initiating the investigation.

(3) Regulations may make provision about—

(a) what constitutes or does not constitute an application made by or on behalf of a UK industry for the purposes of sub-paragraph (1)(a)(i);

(b) when an application is made for the purposes of sub-paragraph (1)(a);

(c) the information to be contained in such an application;

(d) the time limit for determining such an application;

(e) what constitutes or does not constitute “negligible” and “minimal” for the purposes of sub-paragraph (1)(c)(i) or (ii);

(f) how it is to be determined for those purposes whether those thresholds have been exceeded;

(g) what constitutes or does not constitute “the market for like goods for consumption in the United Kingdom” and a UK industry's “share” of that market for the purposes of sub-paragraphs (1)(d) and (2);

(h) how any of those matters are to be determined for the purposes of sub-paragraphs (1)(d) and (2).

[F1 (3A) Where the TRA receives an application under sub-paragraph (1)(a)(i), the TRA must notify the Secretary of State of the application before the end of the second working day after the day on which it receives the application.]

(4) If any of the requirements of sub-paragraph (1)(a) to (d) in respect of a dumping or a subsidisation investigation (as the case may be) are not met, the TRA must reject the application and notify the applicant accordingly (unless it is the requirement in sub-paragraph (1)(a) that is not met because the application has been withdrawn).

(5) If the requirements of sub-paragraph (1)(a) to (d) in respect of a dumping investigation are met, the TRA must [F2 notify the Secretary of State that it intends to initiate a dumping investigation and, after the relevant interval, must take the following steps in the order in which they are set out]—

(a) accept the application,

(b) notify the governments of the relevant foreign countries or territories,

(c) initiate the investigation,

(d) publish notice of its decision to initiate the investigation (including notice of the goods which are the subject of the investigation), and

(e) notify the Secretary of State and interested parties (see paragraph 32(3)) accordingly.

(6) If the requirements of sub-paragraph (1)(a) to (d) in respect of a subsidisation investigation are met, the TRA must [F3 notify the Secretary of State that it intends to initiate a subsidisation investigation and, after the relevant interval, must take the following steps in the order in which they are set out]—

(a) accept the application,

[F4 (aa) invite the governments of the relevant foreign countries or territories to participate in consultations,]

(b) F5 ... initiate the investigation,

(c) publish notice of its decision to initiate the investigation (including notice of the goods which are the subject of the investigation), and

(d) notify the Secretary of State and interested parties accordingly.

[F6 (6A) In sub-paragraphs (5) and (6), the “relevant interval” is the period of two working days beginning with the first working day after the day on which the TRA notifies the Secretary of State of its intention to initiate the investigation.]

(7) “Relevant foreign country or territory” means—

(a) in the case of an application for a dumping investigation, the exporting foreign country or territory (within the meaning of paragraph 1(2)) of the alleged dumped goods;

(b) in the case of an application for a subsidisation investigation, a foreign country or territory within whose territory is located a foreign authority which is alleged to have granted one or more of the subsidies in question.

(8) Notices under sub-paragraphs (5)(d) and (e) and (6)(c) and (d) must specify the date of the initiation of the investigation.

(9) Nothing in this paragraph prevents the TRA initiating both a dumping investigation and a subsidisation investigation in relation to the same goods if the requirements of sub-paragraph (1)(a) to (d) are met in the case of each investigation.

[F7 (10) In this paragraph, “working day” means any day other than a Saturday, a Sunday or a day that is a bank holiday under the Banking and Financial Dealings Act 1971 in any part of the United Kingdom.]

Textual Amendments

F1 Sch. 4 para. 9(3A) inserted (25.8.2023) by Finance (No. 2) Act 2023 (c. 30), Sch. 19 paras. 2(1)(a), 17(2); S.I. 2023/918, reg. 2 (with reg. 3)

F2 Words in Sch. 4 para. 9(5) inserted (25.8.2023) by Finance (No. 2) Act 2023 (c. 30), Sch. 19 paras. 2(1)(b), 17(2); S.I. 2023/918, reg. 2 (with reg. 3)

F3 Words in Sch. 4 para. 9(6) inserted (25.8.2023) by Finance (No. 2) Act 2023 (c. 30), Sch. 19 paras. 2(1)(c)(i), 17(2); S.I. 2023/918, reg. 2 (with reg. 3)

F4 Sch. 4 para. 9(6)(aa) inserted (25.8.2023) by Finance (No. 2) Act 2023 (c. 30), Sch. 19 paras. 2(1)(c)(ii), 17(2); S.I. 2023/918, reg. 2 (with reg. 3)

F5 Words in Sch. 4 para. 9(6)(b) omitted (25.8.2023) by virtue of Finance (No. 2) Act 2023 (c. 30), Sch. 19 paras. 2(1)(c)(iii), 17(2); S.I. 2023/918, reg. 2 (with reg. 3)

F6 Sch. 4 para. 9(6A) inserted (25.8.2023) by Finance (No. 2) Act 2023 (c. 30), Sch. 19 paras. 2(1)(d), 17(2); S.I. 2023/918, reg. 2 (with reg. 3)

F7 Sch. 4 para. 9(10) inserted (25.8.2023) by Finance (No. 2) Act 2023 (c. 30), Sch. 19 paras. 2(1)(e), 17(2); S.I. 2023/918, reg. 2 (with reg. 3)

Commencement Information

I2 Sch. 4 para. 9 in force at 4.3.2019 at 11:59 a.m. by S.I. 2019/429, reg. 2 (with regs. 4-9)

Conduct of a dumping or a subsidisation investigation U.K.

10 (1) Regulations may make provision about the conduct of a dumping or a subsidisation investigation. U.K.

(2) Such regulations may, among other things, make provision about—

(a) the stages of an investigation;

(b) time limits for completion of a stage or of an investigation;

(c) the termination of an investigation in certain circumstances in relation to some or all of the goods;

(d) the information which must or may be provided or made available by the TRA to others;

(e) requests by the TRA for information from others and the consequences of not providing the information requested or of providing information which is false or misleading;

(f) requests by the TRA to visit premises in or outside the United Kingdom and the consequences of not agreeing to such requests;

(g) the conduct of such visits;

(h) the consequences of otherwise impeding an investigation;

(i) the treatment of confidential or other information provided to or by the TRA [F8 or the Secretary of State];

(j) the provision and conduct of oral hearings.

[F9 (k) the Secretary of State requiring the TRA to reassess a proposal to terminate an investigation.]

Textual Amendments

F8 Words in Sch. 4 para. 10(2)(i) inserted (25.8.2023) by Finance (No. 2) Act 2023 (c. 30), Sch. 19 paras. 2(2)(a), 17(2); S.I. 2023/918, reg. 2 (with reg. 3)

F9 Sch. 4 para. 10(2)(k) inserted (25.8.2023) by Finance (No. 2) Act 2023 (c. 30), Sch. 19 paras. 2(2)(b), 17(2); S.I. 2023/918, reg. 2 (with reg. 3)

Commencement Information

I3 Sch. 4 para. 10 in force at 4.3.2019 at 11:59 a.m. by S.I. 2019/429, reg. 2 (with regs. 4-9)

Provisional affirmative determinations and final affirmative or negative determinations U.K.

11 (1) In the case of a dumping investigation, an “affirmative determination” in relation to goods means a determination that— U.K.

(a) the goods have been or are being dumped in the United Kingdom, and

(b) the dumping of the goods has caused or is causing injury to a UK industry in those goods.

(2) In the case of a subsidisation investigation, an “affirmative determination” in relation to goods means a determination that—

(a) the goods have been or are being imported into the United Kingdom and are subsidised, and

(b) the importation of the subsidised goods has caused or is causing injury to a UK industry in those goods.

(3) At any stage during a dumping or a subsidisation investigation, the TRA may make an affirmative determination, based on the evidence then before it, in relation to goods which are the subject of the investigation (referred to in this Schedule as “a provisional affirmative determination”).

(4) But the TRA may only make such a determination if it is satisfied that interested parties (see paragraph 32(3)) have been given an adequate opportunity to provide information to it regarding the investigation.

(5) The TRA must make a final determination in relation to each of the goods which are the subject of a dumping or a subsidisation investigation [F10 (but see paragraph 12A for a requirement to give notice to the Secretary of State in certain cases)].

(6) A final determination under sub-paragraph (5) in relation to goods is—

(a) an affirmative determination (referred to in this Schedule as a “final affirmative determination”), or

(b) if the TRA determines that it cannot make an affirmative determination in relation to the goods, a negative determination (referred to in this Schedule as a “final negative determination”).

(7) The TRA may make different final determinations in relation to different goods which are the subject of the investigation.

(8) The TRA must—

(a) publish notice of its final negative determination or final negative determinations under sub-paragraph (5), and

(b) notify the Secretary of State and interested parties accordingly.

Textual Amendments

F10 Words in Sch. 4 para. 11(5) inserted (25.8.2023) by Finance (No. 2) Act 2023 (c. 30), Sch. 19 paras. 2(3), 17(2); S.I. 2023/918, reg. 2 (with reg. 3)

Commencement Information

I4 Sch. 4 para. 11 in force at 4.3.2019 at 11:59 a.m. by S.I. 2019/429, reg. 2 (with regs. 4-9)

Termination of a dumping or a subsidisation investigation U.K.

12 U.K. A dumping or a subsidisation investigation in relation to goods terminates (if it has not already terminated by virtue of provision made under paragraph 10(1))—

(a) in a case where the TRA makes a final negative determination in relation to the goods, when notice of that determination is published under paragraph 11(8)(a),

F11 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c) in a case where the TRA makes a final affirmative determination in relation to the goods and makes a recommendation under paragraph 17(3) or (4) in relation to them which the Secretary of State rejects, when the notice of rejection is published under paragraph 20(4)(a) [F12 or the Secretary of State publishes notice of a decision under paragraph 20A(2)], or

(d) in a case where the TRA makes a final affirmative determination in relation to the goods and makes a recommendation under paragraph 17(3) or (4) in relation to them which the Secretary of State accepts, at the end of the day of publication of the public notice under section 13 giving effect to the recommendation.

Textual Amendments

F11 Sch. 4 para. 12(b) omitted (25.8.2023) by virtue of Finance (No. 2) Act 2023 (c. 30), Sch. 19 paras. 2(4)(a), 17(2); S.I. 2023/918, reg. 2 (with reg. 3)

F12 Words in Sch. 4 para. 12(c) inserted (25.8.2023) by Finance (No. 2) Act 2023 (c. 30), Sch. 19 paras. 2(4)(b), 17(2); S.I. 2023/918, reg. 2 (with reg. 3)

Commencement Information

I5 Sch. 4 para. 12 in force at 4.3.2019 at 11:59 a.m. by S.I. 2019/429, reg. 2 (with regs. 4-9)

[F13 Requirement to give notice to the Secretary of State in certain cases U.K.

Textual Amendments

F13 Sch. 4 para. 12A and cross-heading inserted (25.8.2023) by Finance (No. 2) Act 2023 (c. 30), Sch. 19 paras. 2(5), 17(2); S.I. 2023/918, reg. 2 (with reg. 3)

12A (1) This paragraph applies where the TRA proposes to make a final negative determination. U.K.

(2) The TRA must notify the Secretary of State of its proposed determination.

(3) Where the Secretary of State has been notified in accordance with sub-paragraph (2), the Secretary of State may, within the relevant period (and subject to sub-paragraph (4)), request that the TRA reassess its proposed determination by reference to any matters specified in the request.

(4) The Secretary of State may only make a request under sub-paragraph (3) where the Secretary of State considers that—

(a) there is information that the TRA did not take into account in its investigation that is relevant to the proposed determination,

(b) the TRA has made an error in relation to its proposed determination, or

(c) exceptional circumstances make the request appropriate.

(5) The TRA must comply with a request under sub-paragraph (3).

(6) The TRA may not make its proposed determination until—

(a) the relevant period has ended, or

(b) if the Secretary of State informs the TRA within the relevant period that the Secretary of State will not make a request under sub-paragraph (3), the time when the TRA receives that information.

(7) For the purposes of this paragraph, the relevant period is the period of 21 days beginning with the day on which the TRA notifies the Secretary of State that it proposes to make the determination.]