For several decades the EU has adjusted the normal value of certain goods in anti-dumping investigations upward, consequently increasing the applicable anti-dumping duties, based on assertions of raw material input dumping in the country of export. Typically adjustments are founded on the assessment that raw materials are sold at a lower price in the domestic market as compared to export sales through so called dual pricing schemes. In the case of certain imports from Russia to the EU, adjustments to normal value are usually based on the premise that energy intensive industries in Russia benefit from input dumping of natural gas. Following its accession to the WTO, Russia has challenged the EU´s practice for violating the EU´s WTO obligations.
In the review of its trade defence instruments in 2018, the EU reinforced mechanisms to reprimand alleged input-dumping, despite earlier findings by the WTO dispute settlement body that adjustments for the cost raw material inputs are generally not permitted. In this article it is argued that the EU´s practices are problematic also in relation to cost adjustments based on alleged energy input dumping. Next to the circumstance that WTO rules and jurisprudence do generally not support this practice, the EU´s current approach selectively discriminates against alleged energy input dumping in certain countries, potentially violating not only anti-dumping rules, but also rules of non-discrimination.Global Trade and Customs Journal