European Commission Directorate-General for Trade

Practical information

1. Who can request the intervention of the Hearing Officer?

Any natural or legal person involved in a trade defence proceeding before the Commission may request the intervention of the Hearing Officer when they believe that their rights are not being fully respected. The intervention of the Hearing Officer may also be requested by the authorities of non-EU countries involved in trade proceedings, the Commission investigation services (investigators) or the EU Member States.

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2. I think I may be affected by a trade proceeding

Trade proceedings usually affect the interests of a number of economic operators, established either in the EU or in countries outside the EU. However, procedural rights are only granted to "interested parties", as defined in the basic Regulations.

Am I an "interested party"?

The authorities of non-EU countries from which the products under investigation are imported into the Union are automatically considered to be interested parties.

Economic operators that are considered to be interested parties are: EU-based producers of the product under investigation, exporting producers, importers, users, consumers, in specific cases, and their respective associations. A fundamental prerequisite for being considered an interested party is to make yourself known to the investigators within the time limit (usually 37 days) specified in the “Notice of Initiation” (NoI) published when the proceeding is opened.

If you make yourself known at a later stage of the proceeding, you may not be able to exercise fully all your procedural rights.

If you believe that you are an interested party but the investigators did not admit you to the proceeding, you may refer a request to the Hearing Officer to examine your case.

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3. I am not an "interested party" in a trade proceeding but I would like to present my views and have access to the file of the proceeding "open for inspection by interested parties". Can I do this?

If you believe that you can contribute to a proceeding you should contact the Hearing Officer, who will ask you to demonstrate that the evidence you intend to provide is substantial and important for the outcome of the proceeding. If the Hearing Officer accepts your request, he will recommend to the investigators that you be given the opportunity to present your evidence. If the Hearing Officer rejects your request, you will be informed of the reasons for this decision and will be given the opportunity to comment.

Since being allowed to present your evidence does not make you an interested party, you will not have access to the file open for inspection by interested parties (most commonly referred to as the "non-confidential file").

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4. In the course of the proceeding, the Commission concluded that I am a "non–cooperating party". How does this conclusion affect my rights of defence?

An interested party may be found to be a “non-cooperating party” if it:

• refuses access to, or otherwise does not provide, necessary information to the Commission within the time limits specified in the Notice of Initiation, correspondence with the Commission or the basic Regulations,
• significantly impedes the investigation,
• provides information that the Commission discovers to be false or misleading.

If you are found to be a non-cooperating party, that does not mean that you are no longer an interested party. You may make written submissions on other aspects of the case, for example injury and Union interest. You may also request hearings and have access to the non-confidential file.

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5. If I am an interested party, what are my procedural rights in trade proceedings?

In order to guarantee the quasi-judicial and adversarial nature of trade proceedings, and to ensure due process, the relevant EU Regulations grant extensive procedural rights to interested parties. These include:

• The right to be heard, in particular:
  • The right to submit comments
  • The right to be granted a hearing
• The right to the confidential treatment of your information
• The right to access the file open for inspection by interested parties (most commonly referred to as the "non-confidential file")
• The right to equal treatment
• The right to be informed of the main facts and considerations on which investigators based their findings

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6. What is a disclosure?

The disclosure (provisional or final) is a document informing interested parties of the status of a trade proceeding, the facts of the case, the findings of the Commission and its conclusions. The disclosure document is meant to enable parties to react to Commission findings or to be informed of the final decision in the proceeding, thus enabling you to defend your interests before a definitive determination is made. At the same time you are invited to submit comments. If these are received within the time limit they should be taken into consideration by the investigators before a final determination is reached.

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7. What is the right to be heard? How does the Hearing Officer guarantee this right?

Within the context of a trade proceeding the right to be heard includes both (a) the right to submit comments and (b) the right to a hearing.

(a) Your right to submit comments or information refers, more specifically, to (i) your reply to a questionnaire sent within 37 days of the initiation of the investigation, (ii) any other comments you wish to share as long as they are submitted within the deadlines stipulated in the NoI, (iii) your reaction to and comments on the submissions of other interested parties and (iv) your comments on disclosures.

It is the Hearing Officer's role to ensure that interested parties are able to exercise effectively their right to submit to the Commission, under fair conditions, in writing or orally, their views on the facts and considerations they consider to be important to their defence. He also aims to ensure that, in the disclosure documents, the investigators consider the views and arguments of the interested parties which are relevant to the case.

(b) Under the current rules the investigators may also organise hearings, i.e. meetings between an interested party and the investigators ("ordinary individual hearings") or hearings involving more than two interested parties, which might include EU producers, exporting producers and importers (“hearings between parties”). During these meetings the interested party may present and explain its submissions and its views on the investigation. The Hearing Officer may also organise and chair a hearing at the request of an interested party if this party believes that one is necessary for the proper exercise of its procedural rights.

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8. What kind of decision does the Hearing Officer take?

The Hearing Officer first decides whether his intervention is justified. He does not act as a judge. He does not make binding decisions or express a public view on the substance of a case. He acts as a facilitator between the interested parties and the investigators. For this purpose, he addresses non-binding and confidential recommendations to the investigators and reports to the Director-General on whether his recommendations were followed. Since his intervention is part of the Commission's internal decision-making process, his recommendations, reports and the results of his contribution in the cases in which he intervenes are not made public.

The Hearing Officer reports on his activities to the Director-General of DG Trade quarterly and annually but may also deliver an ad hoc report on an important and urgent matter. Moreover, the Hearing Officer provides a non-confidential version of his annual report to the European Parliament, the Member States and the public.

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9. What is the right to confidential treatment of information? What is the Hearing Officer’s role in disputes on confidentiality?

The information you submit during a trade proceeding may be confidential by nature, for example the detailed tables on your sales to the EU or data concerning your costs of production. However, you may also ask the investigators to treat information you submit which is not confidential by nature as 'confidential’ if you are able to demonstrate that the disclosure of this information may seriously affect your economic interests.

The Commission is legally bound to respect the confidentiality of such documents if it decides that your request is justified. Sensitive information may not be used for any other purposes (e.g. taxation, customs, anti-trust).

Nevertheless, if you submit confidential information, you must also provide the investigators with a meaningful non-confidential summary. Those summaries must be in sufficient detail to permit a reasonable understanding of the substance of the information submitted in confidence. Public information and non-confidential summaries are available for inspection by any other interested party but are not accessible to the public. If you fail to submit a meaningful non-confidential summary, the investigators may disregard information provided in confidence.

The Hearing Officer intervenes in the event of a dispute over whether the submitted document is confidential or whether a non-confidential summary is meaningful. He also reviews your complaint against the investigators' decision to disregard the confidential information that you submitted without a meaningful non-confidential summary.

The Hearing Officer may check the overall quality of any non-confidential file.

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10. What is access to the file open for inspection by interested parties?

An interested party has access to the file open for consultation by interested parties which contains non-confidential versions of information submitted by any other interested party in an investigation. Access to the non-confidential version of the Commission's file is an essential procedural guarantee for the right of defence.

The file open for consultation by interested parties should contain the following documents: (i) the non-confidential version of the complaint, (ii) the non-confidential versions of submissions and replies to questionnaires, (iii) the correspondence between the investigators and interested parties. Confidential documents are not accessible to interested parties.

You may request access to the non-confidential file at any time during the proceeding by submitting a written request to the investigators. The latter will provide you with an office where you may consult the file and copy the documents you need.

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11. What is the role of the Hearing Officer with regard to the access to the file open for inspection by interested parties?

If you consider that you were unlawfully denied access to the non-confidential file, you may request the intervention of the Hearing Officer. The Hearing Officer will analyse your request, look into why you were denied access and make the necessary recommendations to the investigators to ensure that your right of access to the non-confidential file is fully respected. The Commission's services will inform you of the final decision.

If you believe that the Commission is in possession of a document not included in the file open for inspection by interested parties and this document is of importance to your defence, you are entitled to have access to the contents of this document or a non-confidential summary thereof. If you are denied such access you may ask the Hearing Officer to examine your case.

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12. Can I have access to a confidential document provided by an interested party or used by the Commission?

You cannot access confidential business information provided to or used by the Commission in the course of an investigation. However, if the Commission has used such information in order to make determinations which directly and personally affect you, you may request that the Hearing Officer check how such confidential information has been used by the investigators. The Hearing Officer will inform you whether, according to him, your rights of defence have been respected.

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13. Why a hearing with the Hearing Officer?

The Hearing Officer, when justified, organises ordinary individual hearings between an interested party and the investigators.

He may also organise hearings of more than two interested parties, including the EU producers, exporting producers and importers ("hearings of parties"), when a special issue (e.g. the product scope of the investigation, the dumping, injury or the Union interest) must be examined. These hearings of parties are planned in each investigation and will, as a rule, take place within six weeks of the disclosure of provisional findings if requested by at least two interested parties. The hearings are not public and participation in them is not compulsory.

A hearing chaired by the Hearing Officer gives you the opportunity to explain an aspect of your case that affected your defence or to ask for clarification and further examination of a particularly complex issue in a given trade proceeding. You may also ask the Hearing Officer for a hearing when you are having difficulties communicating with the investigators. This gives you an opportunity to present your case before an experienced Commission official, independent from the Commission's investigation services, who is not involved in your proceeding.

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14. What is the procedure for organising a hearing with the Hearing Officer?

There is no formal hearing procedure. You have to submit a reasoned request explaining why you consider the intervention of the Hearing Officer necessary. If the Hearing Officer finds your request to be justified, he organises and chairs the hearing. He may contact you to discuss the agenda of the hearing or to request any additional information. You will receive an invitation to a hearing containing the agenda. During the hearing the Hearing Officer ensures that each participant has every opportunity to make all its views known and understood by the investigators and the other interested parties, if applicable.

During a hearing you may present your views in the presence of other parties, the investigators and their immediate hierarchy (Head of Unit). The investigators’ Director and another Heads of Unit may also be present during a hearing of parties. At the latter you may also receive answers to questions that you have addressed to the other parties and the investigators in writing before the hearing. In this regard, the Hearing Officer may also hold preparatory meetings with the parties concerned and, where appropriate, the investigators, in order to identify and clarify, as far as possible, the questions to be raised during the hearing.

Neither the investigators, nor the Hearing Officer will make decisions during the hearing. However, arguments you present during the hearing should be taken into consideration by the investigators, if relevant to the case.

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15. What happens next?

The Hearing Officer prepares the minutes of the hearing. The minutes will be distributed to all participants for comments, after which they will be finalised and included in the case file.

The Hearing Officer acts independently on the basis of his mandate from the Commission to ensure the respect of the rights of defence in trade defence proceedings. However, he cannot make decisions in your case. He may make recommendations to the investigators to ensure that your rights of defence are fully respected and your arguments are taken into consideration, if relevant for the case. If the services decide not to follow his recommendations and no agreement can be reached, the Hearing Officer may refer the matter to the Director-General. Moreover, the Hearing Officer provides a non-confidential version of his annual report to the European Parliament, the Member States and the public.

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16. How can I prepare for a hearing with the Hearing Officer? Should I be assisted by a lawyer?

It is always useful to prepare a short presentation of the particular matter you would like to discuss with the Hearing Officer and bring with you all supporting documents (if practical and possible). The Hearing Officer may also hold a preparatory hearing with you. It is not necessary to have a legal counsel. However, since the EU trade proceedings may be very complex, a number of parties make use of legal counsels.

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17. What is the role of the Hearing Officer in disputes concerning extension of deadlines?

You may ask the investigators for an extension of the deadline for submitting documents and they can refuse to grant you such an extension. If you disagree with the investigators’ decision, you may, in due time, ask the Hearing Officer to review your request and make a recommendation to the investigators.

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18. I would like to suggest improvements to the current EU trade proceedings. Can I present my views to the Hearing Officer?

You may submit written observations on certain procedural shortcomings of the current trade proceedings and your suggestions on how to improve them. After analysis, the Hearing Officer may include your remarks in the independent advice on trade issues he is entitled to provide to the Director-General for Trade. The advice of the Hearing Officer to the Director-General is confidential and therefore not accessible to the public.

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19. When does the Hearing Officer intervene in trade proceedings?

The Hearing Officer may be involved at any stage of the proceeding in due process-related issues. He intervenes upon a reasoned request by interested parties or the investigators.

A request submitted in good time ensures that the Hearing Officer has sufficient time to consider the issues raised and to make the necessary recommendations to the investigators.

The Hearing Officer will consider that your request is submitted in good time at the initial stages of the investigation if you have requested a hearing on, for example, the product scope or the analogue country, within 10 days of the date of publication of the Notice of Initiation. For issues which arise at later stages of the investigation, you are advised to request the intervention of the Hearing Officer as soon as possible or within the deadlines set by the investigators in their communications with you.

If you submit your request outside these recommended deadlines the Hearing Officer may still consider your request. He will, however, take account of whether the specific circumstances and due process problems you invoke are sufficiently serious to justify his intervention at a late stage of the proceeding.

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20. I am afraid of being treated unfairly by the investigators. Will my concerns be dealt with impartially by the Hearing Officer?

The Hearing Officer is an official of DG Trade experienced in trade issues. He has a thorough inside knowledge of the system but is not involved in ongoing investigations and does not conduct trade proceedings. The Hearing Officer is independent from the investigators and does not receive instructions from them with regard to his substantial role. Therefore, if you fear you are being treated unfairly in a proceeding, you may contact the Hearing Officer. He brings "a new pair of eyes" into trade proceedings and is fully impartial in any trade proceeding.

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21. How can I contact the Hearing Officer?

Click here for the Hearing Officer's contact details.

You may contact the Hearing Officer informally before you submit a reasoned request if you have doubts concerning the powers of the Hearing Officer or with regard to the most appropriate way of resolving the matter. If you decide to request the intervention of the Hearing Officer you must submit a reasoned request explaining why you consider such intervention necessary. In the normal course of business, the Hearing Officer will inform you of the intended course of action within 5 working days.

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