欧洲联盟反倾销措施之研究

欧洲联盟反倾销措施之研究 A study of EU anti-dumping measures 歐洲聯盟反傾銷措施之研究 2006-04-10 / Taiwan News / Edited by Tina L 編輯李美儀 / Translated by Susanne Ganz 英文翻譯全樹曦 Chen-Rabich Li-jiuan Associate Professor, Graduate Institute of Financial and Economic Law, Feng Chia University 陳麗娟:逢甲大學財經法律研究所專任副教授: The European Union is a supranational international organization that European countries established by concluding an international treaty. After the end of World War II, the EU kept expanding beyond its original six member states, adding new members and amending its basic treaties to add new goals. Today the EU is no longer just an economic community that seeks to achieve a common single market, but is also a political community that practices a common foreign and security policy as well as its own justice and home affairs policy. The EU practically participates in international trade through the common trade policy that is laid down in the Treaty Establishing the European Community. This means that in terms of foreign trade the EU actively participates in international trade by relying on its special nature as a taxation and customs union to develop a free circulation of goods among its member states, while imposing a common customs tariff on goods imported from third countries. 歐洲聯盟:Europaische Union; European Union:係由歐洲國家以締結國際條約的方式,成立的超國家國 際組織。在第二次世界大戰結束後,由創始的六個會員國隨著歷次的擴大、不斷增加新的會員國與修改基 礎條約增訂新的目標,歐洲聯盟不再只是要達成共同市場與單一市場的經濟共同體,而且也是一個要實現 共同外交、安全、司法與內政的政治共同體。歐洲聯盟透過在歐洲共同體條約所規範的共同貿易政策實際 的參與國際貿易,也就是在對外貿易的關係上,歐洲聯盟依賴歐洲共同體係一個關稅同盟的特質,在會員 國間發展自由的商品流通,對第三國的進口商品實施共同關稅稅率,積極的參與國際貿易。 The Community and all of its members are founding members of the World Trade Organization and European commercial law has already incorporated WTO and GATT regulations in its norm system. The Community has made great efforts in promoting global trade liberalization and adopts special trade-restricting measures only as an exception to prevent imported products from causing negative effects on its economy. 歐洲共同體與全體會員國均為WTO的創始會員國,歐洲貿易法已經將WTO與GATT的規定納入其規範 體系,歐洲共同體亦致力於全球的自由化貿易,僅在為防禦進口商品對其經濟造成的負面效果時,才例外 採取特定的限制貿易措施。 Anti-dumping measures are the protection measure that the European Community has most often used over the years in its commercial policy. In order to take anti-dumping measures, dumped imports, subsidized imports or other trade obstacles must first of all truly exist and have caused resulting injury to relevant Community industries. Furthermore it must be essential to adopt trade protection measures as a defensive means in order to protect the Community interest. 反傾銷措施是歷來歐洲共同體最常使用的貿易政策上的保護措施,在採取反傾銷的保護措施時,首先必須 有傾銷進口、補貼進口或其他貿易障礙的事實存在,且因而造成共同體相關產業的損害,而為維護共同體 的利益,有必要採取貿易保護措施,以作為防禦手段。 The foremost objective of the Community's anti-dumping law is to guarantee free competition between the Community industry inside the single market and producers from third countries. The Anti-dumping Regulation is applied to dumped imports from non-member states, but the Community may also create special rules that apply to third countries that are non-market economies or economies in transition. The Anti-dumping Regulation may not clash with special regulations agreed on between the Community and third countries. It is applied to all products, but agricultural products and agricultural products to which common market regulations apply shall preferentially apply the duties and taxes that are stipulated in the common market regulations. 歐洲共同體的反傾銷法的首要目標,即為在單一市場內保障共同體產業與第三國的製造者自由競爭。反傾 銷規章適用於所有非歐洲共同體會員國的傾銷進口,但歐洲共同體得制定特別的規定,以適用於非市場經 濟的第三國或經濟轉型的情形。反傾銷規章不得抵觸歐洲共同體與第三國間協議的特別規定;此一反傾銷 規章適用於所有的商品,但農產品與適用共同市場規範的農產品,應優先適用共同市場規範所規定的稅捐。 It deserves attention that in the past, Community anti-dumping measures applied different regulations to counter dumped imports from market economy countries and planned economy countries. The economic opening and reform process in Russia and China, however, has already led to the emergence of particular enterprises for which market economy conditions prevail and has also created a major shift in the national economies of these countries. The Council, therefore, on April 27, 1998, amended Article 2(7) (of the Anti-dumping Regulation) and on October 9, 2000, again amended the content of subparagraph (b) of Article 2(7), to say that in anti-dumping investigations concerning imports from Russia, China, the Ukraine, Vietnam and any non-market-economy country which is a member of the WTO at the date of the initiation of the investigation, normal value will be determined if it is shown in accordance with the determined criteria and procedures that market economy conditions prevail for the manufacture and sale of the like product concerned. 值得注意的是,過去歐洲共同體的反傾銷措施會因傾銷進口來自具有市場經濟的國家或計畫經濟的國家, 而適用不同的規定。由於俄國與中國大陸的經濟開放改革過程,使得特定的企業已經具有市場經濟的條件, 也造成這些國家在國民經濟根本上的重大變革,因此理事會在1998年4月27日時修正第2條第七項規定, 於2000年10月9日又再次修正第條第七項第b款的內容,即對來自非市場經濟國家的傾銷進口進行反傾 銷調查,包括俄國、中國、烏克蘭、越南等國在內,由於在開始調查時這些國家已經是WTO的會員國, 依據規定的申請或標準、在調查程序上證實相同種類的產品在製造與銷售時已經具有市場經濟的條件,因 此應是用來自市場經濟國家的標準調查傾銷商品的正常價格。 In order to constitute an act of anti-dumping under the Community Anti-Dumping Regulation, there needs to exist imports of dumped products and those imports cause major material damage to Community businesses. In those cases, Community interests need to be protected. Article 1(2) of the Anti-Dumping Regulation stipulates that "a product is to be considered as being dumped if its export price to the Community is less than a comparable price for the like product, in the ordinary course of trade, as established for the exporting country." Consequently it must be investigated (when determining dumping) whether a so-called dumping margin exists between the normal value and the export value. Item 4 of Article 9(4) of the Anti-Dumping Regulation stipulates that the amount of the anti-dumping duty shall not exceed the margin of dumping. The existence of dumped imports alone does not suffice to impose anti-dumping duties, as these imports must also cause material injury to Community businesses, and there must be a causal link between the dumped imports and the damage done. 歐洲共同體的反傾銷措施的構成要件,為必須有傾銷的商品進口,且因而造成共同體產業的嚴重損害,而 有必要為維護共同體的利益,即依據反傾銷規章第1條第二項之規定,傾銷係指進口商品的出口價格低於 其正常價格,也就是第三國的商品出口到歐洲共同體的價格低於相同種類商品在出口國正常的交易可比較 的銷售價格,因此必須調查計算正常價格與出口價格的差價,即存在所謂的傾銷差額;依據反傾銷規章第 9條第四項第四款之規定,傾銷差額係課徵反傾銷稅的上限。僅出現傾銷進口的事實尚不足以課徵反傾銷 稅,還必須造成相關共同體產業的嚴重損害,即傾銷進口與共同體產業的嚴重損害間必須有因果關係。 On top of this there must be a causal link between the dumped imports and the material damage to Community businesses in order to distinguish the negative effects of dumping and factors other than dumped imports that might have caused injury such as contraction in demand or changes in the patterns of consumption. 除此之外,尚必須在傾銷進口與造成共同體產業嚴重損害間有因果關係存在,以便能區別傾銷的負面效果 與其他的因素,例如:需求下降、消費習慣的改變均有可能造成損害。 The Commission is the executive organ for Community anti-dumping measures. When initiating anti-dumping investigation procedures, the Commission must still assess whether this defensive trade measure is essential in order to protect the Community interest. If following an investigation the Commission finds that there is dumping and material injury to Community businesses caused by it and that the Community interest needs to be protected, Article 9(4) of the Anti-Dumping Regulation stipulates that the Council shall impose a definitive anti-dumping duty. (Article 11(1) and 11(2) stipulate that) the anti-dumping measure shall remain in force as long as it is necessary to counteract the dumping, but not longer than five years. 執行委員會為歐洲共同體反傾銷措施的執行機關,在進行傾銷調查程序後,執行委員會尚必須裁量是否係 為維護共同體的利益所必須採取的貿易防禦措施。 在執行委員會完成調查後,若存在傾銷進口、因而造成 共同產業的嚴重損害與有為維護共同體利益之必要時,依據反傾銷規章第9條第四項之規定,理事會以規 章確定最終的反傾銷稅,直至消除傾銷的事實為止,但最多不得超過五年。 In the past, when Taiwanese manufacturers who had relocated to China for assembly and manufacturing exported their products to the Community, they were often accused of dumping and slapped with anti-dumping duties. In recent years this phenomenon has somewhat improved. However, China has definitely become the main target of Community anti-dumping investigations. While China has attracted foreign investment in the wake of its reform and opening policy, its economy has not yet completely transformed from a planned economy into a market economy. But the Community has nonetheless repeatedly amended its rules so that it uses the calculation method for dumped imports from market economy third countries when investigating dumped imports from China. Thus the current Anti-dumping Regulation is virtually indiscriminately applied to Taiwan and China. 台灣的製造商外移至中國大陸進行組裝製造。過去台灣的產品在輸出到歐洲共同體時,被控傾銷進口而應 繳納反傾銷稅,時有所聞,近年來此種現象有所改善。中國大陸卻是成為歐洲共同體反傾銷調查的主要對 象。而中國大陸在改革開放後引進外資,雖然其經濟體制尚未完全由計畫經濟蛻變為市場經濟,但歐洲共 同體卻一再的修改規定,在調查來自中國大陸的傾銷進口亦適用調查來自市場經濟型態的第三國傾銷進口 的計算方法。如此一來,現行的反傾銷規章毫無差別的適用於台灣與中國大陸。