FINAL DECISION |
CASE: MEX-USA-00-1904-01 |
(Continued)
D. ON THE ALLEGED CHANGE OF THE LEGAL STANDING OF
THE COMPLAINANT
1. The following topic at issue
is, in the opinion of this Binational Panel, the most important issue in this
review. The controversy essentially arises from the following reasoning as
expressed by the Ministry of Commerce in the Final Determination:
76. At the time of
requesting the initiation of the investigation on dumping, [AGROMEX]
evidenced its character of national producer of urea, and as a consequence
of that [it evidenced], its legal standing for such purpose. However, to
the extent that there is not currently -and since several months ago-
national production of urea due to the several reasons mentioned in the
prior items, it cannot be an affectation to the national production of
identical or similar goods, which is an indispensable requisite for the
existence of an unfair practice. That is to say, in view that [the
petitioner] cannot be considered as a national producer anymore, it looses
its legal standing as a plaintiff [legitimación
procesal activa], and therefore the investigation is left without
subject matter, according to Articles 28, 40, 50 and 51 of the Foreign
Trade Law [Ley de Comercio Exterior]
and 76 of its Regulations, reason by which, based on Articles 59 section I
of the Foreign Trade Law and 83, section II of its Regulations, the
following RESOLUTION is hereby issued:
77. The administrative
investigation on the matter of unfair international trade practices, on
its dumping modality, is hereby terminated without imposing any
countervailing duty whatsoever to the imports of urea, product classified
in the tariff section 3102.10.01 of the Tariff of the Importation General
Tax Law, original from the United States of America and the Russian
Federation, in view that the petitioner [AGROMEX] did not evidence during
the course of the investigation, the maintenance of its character as
national producer, which is a fundamental hypothesis of legal
standing as a plaintiff [legitimación
procesal activa] on the matter. That is to say, that it does not
produce urea, circumstance that causes a material change in its legal
situation in this investigation.”
Final Determination, Page 107
2. AGROMEX challenged the alleged
illegality of the determination by the Ministry of Commerce to conclude the
administrative proceeding without assessing definitive countervailing duties
whatsoever, based on the reasoning that, upon the issuance of the Final
Determination, AGROMEX had lost the character of national producer and that,
accordingly, it lacked of the legal standing as plaintiff (legitimación
procesal activa) in the administrative investigation.
In general terms, AGROMEX
sustains that there are no valid reasoning nor legal grounds (motivación
and fundamentación) on which the Ministry of Commerce may have supported
its determination to terminate the investigation at issue, based on the alleged
lack of legal standing as plaintiff, derived from the undisputed fact that at
the time of the issuance of the Final Determination, AGROMEX did not produce
urea (and therefore, it could not be considered as a “national producer”). In
support to this allegation, AGROMEX points out the fact that the Ministry of
Commerce had previously acknowledged its character as national producer, both in
the determination by which the investigation was initiated, and the Preliminary
Determination.
“According to the
transcription of paragraph 75 of the Final Determination at issue, the
[Ministry of Commerce], sustains on an unlawful basis that the Complainant
does not have the capacity as national producer, without any legal ground
or reasoning whatsoever... Such capacity as national producer was fully
evidenced... at the corresponding procedural times. The above is fully
accepted and validated in the administrative record itself, as it is
evidenced by the fact that the [investigating] authority, in both the
Determination declaring the initiation of the investigation, and the
Preliminary Determination, specifically in item 4 of them, acknowledges
the Complainant’s capacity as national producer during the period of
review, which is a requirement
sine qua non to initiate, continue and
conclude a dumping investigation... therefore, since the capacity as
national producer was fully evidenced during the period of review, it has
no merits, legally speaking, to now conclude unilaterally, on an arbitrary
basis and without legal grounds, that the Complainant has lost its
character as national producer...”
Brief in Response, Pages 17-18
“...the Investigating
Authority ... concludes in the absurd sense that in order for the capacity
of national producer to exist, a person must be actually producing, which
is evidently mistaken. The investigating authority makes such a statement
without any legal grounds or reasoning whatsoever... it does not rely on
any law provision stating expressly that in order to have the capacity of
national producer, one must be actually producing... in this case, the
Complainant has the capacity of national producer, since it has with the
installed capacity to produce the merchandise at issue... now, the fact
that the Complainant is not currently producing, is evidently due to
the... injury that the imports under review caused to it...”
Brief in Response, Pages 19-24
3. The Ministry of Commerce -in
the same sense that the participants in opposition to the Complaint of AGROMEX-,
argues that the petitioner of an administrative investigation must maintain its
capacity as national producer during all the time of the course of the
administrative investigation, including the time of issuance of the final
determination. The Ministry of Commerce opines that the fact that AGROMEX did
not produce urea at the time of the termination of the administrative
investigation -besides the undisputed fact that there was no any other national
producer, so there was not national production neither-, is a conclusive
explanation that, under any circumstance, AGROMEX was or could be considered as
a national producer, that is, representative of any national production
whatsoever, and therefore, upon the issuance of the Final Determination, it
definitively lacked of legal standing as a plaintiff.
Moreover, as for the fact of the
inexistence of national production at the time of termination of the
administrative investigation, the Ministry of Commerce, particularly in its interventions during the
Public Hearing, argued that the inexistence of national production is a
determinative factor to conclude that “there is no a legally protected interest
(bien jurídico que proteger), fact which lead [the Ministry of Commerce]
to the determination of not assessing... countervailing duties..., because such
duties have as their purpose the elimination of distortions that may exist
within a market as a consequence of an unfair practice, and therefore they may
equilibrate it, [because] they are not a punishment nor they can be assessed to
protect an inexistent national production.”
“...in the Final
Determination published in the DOF on April 17, 2000, it is clearly stated
that the [Ministry of Commerce] relied and reasoned its determination on
the fact that in the final stage of the investigation, the Complainant did
not maintain its capacity as national producer, which is a
sine qua non
requisite in a review of this nature, and that it would not recover such
capacity within the short or medium term... Moreover, items 75 and 76 of
the Final Determination... specifically indicate the result derived from
the analysis of the information and allegations [provided by the
Complainant]. Specifically, item 76 provides the following: [“]...
pursuant to Articles 28, 40, 50 and 51 of the Foreign Trade Law and 76 of
its Regulations, and based on Articles 59, Section I of the Foreign Trade
Law and 83, Section II of its Regulations, the following determination is
hereby issued [”]. According to the above, it is clear that the allegation
brought by the Complainant that the Determination at issue was not based
on any law provisions nor provided any reasoning, it is evidently untrue
by making only a simple reference to item 75 of the [Final] Determination,
so [that allegation] is groundless, malicious and made only with the
intention to create confusion to this Panel... the Complainant says that
the capacity of national producer must be maintained only during the
period of review... the statement in the sense of limiting [such capacity]
only to the period of review is contrary to the spirit and nature of the
unfair international trade practices [regime]... as a matter of simple
logic, and taking into consideration the meaning of the word producer and
production, according to the Dictionary from the Royal Spanish Language
and the Encyclopedia of Martín Alonso, it is clear that the capacity of
producer may only be maintained by actually producing... The fact of interpreting the
phrase “national producer” in such a way that does not describe a person
who is actually producing, but a person who produced in the past, would
lead to the absurd scenario in which the annual reviews and quarterly
tests had no merit nor purpose at all.. the Complainant acknowledges that
the capacity of national producer is a
sine qua non requisite to initiate,
continue and finish a review on unfair international trade practices.
Lastly, and just in case the allegations above mentioned were not enough
by themselves, it is worth mentioning that the Complainant does no render
any information, allegations or evidences to demonstrate that during the
investigation it recovered the capacity of national producer...”
Brief in Opposition to the Complaint, Pages 39-54 (emphasis in the
original).
“...Once the production was
absent, the Complainant suffered a change in its legal standing, and
therefore the determination of the investigating authority was the only
one that it could make, that is to say, to determine that no
countervailing duties could be imposed. Moreover, and assuming that the
allegation from the Complainant were true, it would lead us to the absurd
scenario of leaving without any effect articles such as [Article] 99,
first paragraph of the Regulations of the Foreign Trade Law, which
provides the reasons upon which countervailing duties may be eliminated if
no national production exists: [“]The [Ministry of Commerce] shall review
countervailing duties based on the change of circumstances that originated
the existence of dumping or subvention, pursuant to Article 68 of the
Foreign Trade Law[”]. As a reference of recent determinations in which the
corresponding countervailing duties have been eliminated in the absence of
national production are the following cases:
florfenicol and sulfato de gentamicina
(reviews), clorhidrato de procaina and clorhidrato de l-cisteina
(product covering cases)...” Brief in Opposition to the Complaint, Page 104
4. The first matter to resolve
has to do with the concept of “national producer”. In principle, it is necessary
to determine whether such concept does exist within the Foreign Trade Law (Ley
de Comercio Exterior) (“LCE”), its Regulations or any other
applicable law, as a legal term with a single meaning, whose definition, scope
and content is provided by law.
5. Article 40 of the LCE makes
reference expressly to the term “national production”. Among other things, it
states that for purposes of such law, the term “national production” shall be
understood “in the sense of comprising, at least, the 25% of the national
production of the merchandise at issue”. The reference to the term “national
production” is indispensable in connection with Article 50 of the LCE, which
provides the hypothesis for the initiation of an administrative investigation
upon the request of a petitioner. In this regard, it provides that “the request
by a petitioner may be filed by the producer individuals or legal
entities”, and that “petitioners must be representative of the national
production, according to Article 40 [of the LCE]...”
Article 60 of the Regulations of
the LCE states that “petitioners referred to in Article 50 of the [LCE], must
evidence that they represent at least the 25% of the national production of the
merchandise at issue.” Article 63 of the above mentioned Regulations, provides
among other things that “to determine the existence of injury, the [Ministry of
Commerce] must evaluate the impact of the investigated imports on the total
national production, or on those national producers whose joint
production constitutes the principal part of the total national production of
the merchandise at issue... The [Ministry of Commerce] must assure that the
determination of the corresponding injury be representative of the situation of
the total national production. For such purposes, the [Ministry of Commerce]
must gather all necessary information from non-petitioners national producers,
and they must submit to the [Ministry of Commerce] all information they are
required to produce”.
In view that there are no
judicial precedents or any other provisions that may define the concept, the
above mentioned provisions may be the clearest expressions of the term “national
producer”. Based strictly on the literal expression of law, this Binational
Panel realizes, in first place, that the term is used in direct relationship
with the representativeness criterion that
a person has with respect to what is defined in law as national production.
6. This Binational Panel opines
that, within the global context of the LCE, the term “national producer” should
not nor cannot be exclusively referred to the persons that in a given time -as
may be the time of the issuance of a final determination in an administrative
investigation- are actually producing in fact.
It is the opinion of this
Binational Panel, as further supported in item 20 of this Decision, that such an
statement would lead us to accept that the LCE or in general, the antidumping
or countervailing duties related laws in Mexico, do tolerate or encourage the
existence of unfair practices that, if they are harmful enough, may have
nullified the national producers before the issuance of a final determination in
an administrative investigation, which consequently, would apparently leave the
Ministry of Commerce with no possibility to sanction the injury caused by such
unfair practice.
That does not seem to be the
sense of the law. Let us think, for example, in a case involving the Mexican
agricultural field. Under the interpretation suggested by the Ministry of
Commerce and the participants in opposition to the Complaint of AGROMEX, the
Mexican law would be insufficient to duly protect, among others, the
agricultural producers, who usually interrupt their production between the end
of a season and the beginning of the next one.
Indeed, it is worth mentioning
that during the Public Hearing, the representatives of the Ministry of Commerce
did acknowledge that the character of national producer may be maintained even
if the production is interrupted -as may be the case as a consequence of the
existence of international commercial unfair trade practices-
“...I’d like to make
it clear that that is not our interpretation. The fact that a company that
requests we initiate an investigation stops producing because of unfair
trade practices does not mean that the investigation is automatically
abandoned for practical purposes. In fact, in the case before us, the
point is that the petitioner was unable to demonstrate that it could
continue or reinitiate production in the short or medium term and,
consequently, maintain the status or constitute the national production
that the Mexican antidumping system protects...” Transcription of
the Public Hearing, without page (emphasis added)
The Ministry of Commerce further
said:
“Yes, it’s a different
scenario, but I’d say that the authority would listen to and review the
arguments put forward by importers and exporters in order to reach a
decision in this hypothetical case. And if it were necessary for the
investigating authority to request any other information or carry out any
other due diligence in order to make its decision in this hypothetical
case, then it would do so. Just as occurred in this case, where the
arguments and opinions put forward were heard and evidence was sought as a
basis on which to make the decision. So we would insist that the
authority’s decision, in this case and in the hypothetical case you are
putting to me, was based on this combination of elements, not on the
simple fact that production was stopped or suspended...”
Transcription of the Public Hearing, without page (emphasis added)
7. In the present case, in the
Final Resolution the Ministry of Commerce did not provide adequate legal grounds
or reasoning (fundamentación y motivación) to explain why the Complainant
“was not a national producer anymore”. An adequate analysis based on the
applicable law provisions and reasoning (fundamentación y motivación)
requires that, in this case, the Ministry of Commerce explain the legal grounds
and rationale for distinguishing the case in which a national producer retains
its standing even though it is not producing, and
the one in which a national producer ceases to have standing precisely because
it is no longer producing.
Accordingly, this Binational
Panel opines that an adequate determination of the scope of the term “national
producer”, must take into consideration the entirety of elements gathered
throughout the course of an administrative investigation with respect to the
capacity of a petitioner (or other participants) to produce identical or similar
goods to the ones that are the subject matter of the relevant investigation,
since such interpretation seems to be according to the express purpose of the
LCE as set forth in Article 1 of such law, and on the contrary, an
interpretation in other sense seems not to be consistent.
8. Now therefore, the matter on
its merits consist of determining whether the Ministry of Commerce did rely on
the applicable legal provisions and provide an adequate reasoning to terminate
the administrative investigation without assessing any countervailing duty
whatsoever, based on the reasoning that AGROMEX had lost, during the course of
the investigation, its character as national producer and, as a consequence of
that, it lost its “legal standing as a plaintiff”, as well as whether such
circumstance may validly cause the termination of the investigation because of
“lack of subject matter” of the investigation.
9. In first place, this
Binational Panel analyzed the concept of the legal standing of the plaintiff
(legitimación procesal activa), in order to determine whether the reasoning
expressed by the Ministry of Commerce, and the legal provisions mentioned in the
Final Determination, do actually correspond to such feature.
10. In general terms, the nature
of the legal standing of the plaintiff, also identified in our legal systems as
legal standing ad procesum, is not disputed by the participants.
Essentially, all participants agree that the legal standing of the plaintiff or
ad procesum corresponds to the ability of a party to a trial to
request a jurisdictional entity to resolve a controversy. However,
the participants did controvert the scope and the application of such feature in
reference to an administrative proceeding on the matter of unfair international
trade practices. .
11. AGROMEX sustained in this
regard that, in general terms, the legal standing of the plaintiff is
necessarily referred to the legal standing that a petitioner must have only at
the time of requesting the initiation of an administrative investigation upon
the request of such petitioner. In other words, AGROMEX argued that the legal
standing of the plaintiff must only be evidenced at the time of the initiation
of the investigation, and not during its course.
“...The Investigating
Authority erroneously argues that in this case a change of legal standing
occurred with respect to the Complainant, allegedly because there was a
lack of legal standing as a plaintiff
[legitimación procesal activa]
...because the Complainant did not
demonstrate during the course of the investigation that it maintained its
capacity as national producer, which is allegedly a fundamental hypothesis
for a legal standing of plaintiff on this subject, because it did not
produce urea anymore... According to paragraph 77 of the determination at
issue, it is clear that the investigating authority acted on an unlawful
basis, in view that said determination is not duly relied upon any law
provision or reasoning that may support it, and is actually limited to
state that there is an alleged compliance with a hypothesis of legal
standing of a plaintiff on the subject, without making any reference to
the alleged law provision in which it is provided what the legal standing
on this subject consists of, and if such legal standing may have merits in
this particular case. That is to say, the legal standing of a plaintiff,
as defined by the investigating authority itself, is a general legal
principle, and therefore is not a fundamental hypothesis on the matter,
because the legal standing of a plaintiff as such, must be understood as
the legal capacity to excite a jurisdictional entity in order for such
jurisdictional entity to initiate a trial, circumstance that in the
present case was fully evidenced... with the simple fact of admitting the
denunciation writ and acknowledging its legal personality, since such
facts recognized the existence and demonstration of the legal
standing as a plaintiff or ad
procesum...” Brief in Support to the Complaint, Pages 30-49.
12. The Ministry of Commerce and
the participants in opposition to the Complaint of AGROMEX says otherwise. They
say that the legal standing of the plaintiff, because of its very nature, must
be evidenced at all times during the course of the investigation, and not only
at the time of the request for initiation.
”...it is clear that the
Complainant lost its capacity of national producer by the final stage of
the investigation, without any possibility to recover it within the short
or medium term and, therefore, the legal standing as a plaintiff
[legitimación procesal activa]... the
legal standing consists of two essential elements: the legal standing of
the plaintiff [legitimación procesal activa or ad procesum] and the legal
standing regarding the cause itself [legitimación procesal causal or
“ad causam”]. The first one is an essential requisite for a trial to
initiate and must be evidenced during the whole process... The second one
is an essential requisite for the judge to issue a favorable judgment [to
the plaintiff]... due to the change on the legal standing of the
Complainant by not having demonstrated its capacity as national producer
during the final stage of the investigation, the investigating authority
correctly applied the concept of legal standing of a plaintiff in its
Final Determination...” Brief in
Opposition to the Complaint, Pages 57-71
13. In principle, this Binational
Panel feels inclined to sustain that the legal standing of the plaintiff, as
such, must be maintained at all times during the course of a trial.. However,
the opinion of this Binational Panel is that the discussion on the application
of the feature of the legal standing of the plaintiff, as argued by the
participants, has no sense in relationship with an administrative investigation
on the matter of unfair international trade practices, as it is the case at
issue.
14. Reasons are several, but all
of them have to do with the very nature of, on one hand, what it is known in our
legal systems as legal standing of the plaintiff and, on the other one, of the
administrative proceeding on the matter of unfair international trade practices.
15. In first place, the concept
of legal standing of the plaintiff is necessarily referred to the existence of a
trial, that is to say, to rights in dispute to be resolved during the trial.
Using the same words that have been employed by the Mexican Supreme Court of
Justice in this regard, the legal standing of the plaintiff “occurs when the
action is brought in trial by the person who has the ability to assert the right
to be disputed...” So it may be read in the following jurisprudence
precedent:
“LEGAL STANDING OF A
PLAINTIFF [LEGITIMACIÓN PROCESAL
ACTIVA]. CONCEPT. The legal standing of a plaintiff is the ability to
appear before the jurisdictional entity and be entitled to request the
initiation of a trial or an instance. This legal standing is also known as
legal standing ad procesum and occurs when the right that is going
to be disputed is brought by the person who is entitled to assert such
right, different from the legal standing ad causam that implies
[that a person has] the title of the disputed right in trial. The legal
standing of a plaintiff in the process occurs when the action is brought
in trial by the person who has the ability to assert the right to be
disputed, whether because he/she presents himself/herself as the holder of
such right, whether because he/she has the legal representation of the
holder. The legal standing ad procesum is a requisite for the
trial to develop, while the [legal standing] ad causam,
is [a requisite] to obtain a favorable judgment.
Tax Review 80/83. Seguros
América Banamex, S.A. October 17, 1984. Four Votes Unanimity. Absent:
Eduardo Langle Martínez. Speaker: Carlos of the Río Rodríguez. Secretary:
Diana Bernal Ladrón de Guevara.
Amparo in Review
(Complaint) 1873/84. Francisco Toscano Castro. May 15, 1985. Four Votes
Unanimity. Absent: Fausta Moreno Flores. Speaker: Carlos de Silva Nava.
Secretary: Jorge Mario Montellano Díaz.
Complaint 11/85. Timoteo
Peralta et.al. November 25, 1985. Four Votes Unanimity.
Absent: Manuel Gutiérrez de Velasco. Speaker: Carlos de Silva Nava.
Secretary: Jorge Mario Montellano Díaz.
Amparo in Review 6659/85.
Epifanio Serrano et.al. January 22, 1986. Five Votes.
Speaker: Carlos de Silva Nava. Secretary: Jorge Mario Montellano Díaz.
Amparo in review 1947/97.
Néstor Faustino Luna Juárez. October 17, 1997. Five Votes. Speaker: Sergio
Salvador Aguirre Anguiano. Secretary: Adela Domínguez Salazar.
Jurisprudence Resolution
75/97. Approved by the Second Courthouse, Supreme Court of Justice,
Private Session of December 3, 1997, Five Votes Unanimity, Justices Juan
Díaz Romero, Mariano Azuela Güitrón, Sergio Salvador Aguirre Anguiano,
Guillermo I. Ortíz Mayagoitia and Chairman Genaro David Góngora Pimentel.
Ninth Epoch; Second
Courthouse, Supreme Court of Justice, Weekly Federal Judiciary Gazette,
Volume VII, January, 1998; Resolution: 2a./J. 75/97, Page 351”
(emphasis added)
16. Now hence, the nature of the
administrative investigation on the matter of unfair international trade
practices is not the same than the one of a trial. There is no controversy
whatsoever, nor there is an investigation followed under the form of a trial (in
which the Ministry of Commerce acts with a jurisdictional function, or even
lesser, as a party). The Ministry of Commerce acts strictly in compliance with
attributes of administrative nature that do not create rights to persons.
17. This matter is essential. In
a trial, there is a right (or alleged right) of a person that will be disputed
in trial. In protection of principles of procedural economy and legal certainty,
inter alia, there is an evident interest that the person who brought the
action be the person legally able to act during the whole course of the trial,
because his/her right (or alleged right)
is precisely the subject matter of such trial, with respect to which the
controversy will be resolved (whether declared or constituted).
18. On the contrary, in the
administrative investigation on the matter of unfair international trade
practices, which may be even initiated ex officio, there are no
particular rights in dispute. It may certainly happen that the investigation
begins upon the request of a petitioner, but that does not mean that such
petitioner becomes a “party” to the investigation, in the sense that such
investigation becomes a sort of trial, or in the sense that any rights of
the petitioner be in dispute, or that based on such rights a controversy must be
resolved.2
In support of the above, the
federal Courts have pointed out, as evidenced in the following precedent that an
administrative investigation on the matter of unfair international trade
practices has a nature of public policy, in which there are not plaintiffs and
respondents (and therefore, it cannot be said there is a legal standing of the
plaintiff).
“COUNTERVAILING DUTIES
DETERMINED BY THE MINISTRY OF COMMERCE AND INDUSTRIAL DEVELOPMENT UPON THE
ISSUANCE OF FINAL DETERMINATIONS IN THE ADMINISTRATIVE INVESTIGATION ON
UNFAIR INTERNATIONAL COMMERCIAL PRACTICES. THEY ARE OF GENERAL APPLICATION
FOR ALL IMPORTERS OR CONSIGNEES OF THE MERCHANDISE REFERRED BY THE
MINISTRY OF COMMERCE IN THE RELEVANT DETERMINATION, REGARDLESS THAT THEY
HAD INTERVENED OR NOT IN THE RESPECTIVE INVESTIGATION. The countervailing
duties referred to in the [LCE], are applied once the administrative
investigation on the matter of unfair international trade practices have
taken place, which may be initiated ex officio or upon the request of a petitioner, as provided by
Article 49 of such law; so, the investigation on unfair international
trade practices is regulated by Articles 49 to 60, wherein is regulated
the time of initiation of the investigation, and the time of termination,
upon which the final determination may resolve the assessment of
countervailing duties in provisional manner (Article 57), or determining
definitive countervailing duties, and such resolution may even revoke
provisional countervailing duties, or declaring the termination of the
investigation without imposing any countervailing duties (Article 59).
Moreover, pursuant to Article 89 of the [LCE], the countervailing duties
determined by the [Ministry of Commerce] are mandatory as of the day
following the date of publication in the [DOF]; accordingly, as from such
date, all importers and consignees shall be obliged to calculate in the
corresponding importation request, the amount of provisional or definitive
duties, that shall pay along with the taxes applicable to foreign trade.
This circumstance evidences that the countervailing duties determined by
the [Ministry of Commerce], once that they have been issued in a final
determination in an administrative investigation on unfair trade
practices, are mandatory for all importers or consignees of the
merchandise that is subject to the final determination, that is published
in the [DOF]; therefore, it is irrelevant that the particular to which
these countervailing duties are applied, has participated or not in the
relevant investigation, in view that as mentioned, Article 89 of the [LCE]
is conclusive when it provides that importers or their consignees shall
apply themselves the mentioned duties, without prejudice that the customs
authorities may otherwise apply them. The above is strengthened by the
fact that the investigation on unfair international trade practices
performed by the [Ministry of Commerce] is not a proceeding to "resolve
particular cases", but it is an investigation of public interest whose
purpose is the protection of the national production in front of unfair
practices that may result injurious for the same, by means of this
investigation and the assessment of countervailing duties, it is
protected the interests of all producers and not any particular rights,
and because of that there are no plaintiffs or respondents, but the
proceeding may be initiated upon request of a petitioner or ex officio.
COLLEGIATE COURT ON
ADMINISTRATIVE MATTERS, SIXTH CIRCUIT.
Tax Review 393/99.
Under-Administrator, Contentious Department "1" of the State Income
Administration Office, Puebla. July 6, 2000. Unanimity. Speaker: Francisco
Javier Cárdenas Ramírez. Secretary: Luz Idalia Osorio Rojas.
Ninth Epoch, Collegiate
Court on Administrative Matters, Sixth Circuit, Federal Weekly Judiciary
Gazette, Volume XII, September, 2000, Resolution VI.A. 79 A, Page 736” (emphasis added)
19. In any event, and based on
the above, it becomes clear that the requisite of certain percentage to be
considered as a person representative of the national production, as required by
the LCE and its Regulations, could be referred to as -if there is any need to
classify it- as a requisite to proceed, that is to say, as a simple
requirement to initiate the investigation upon the request of a petitioner.
This is so true, that the Mexican
courts have explicitly sustained, in several resolutions, the independence of
the request to initiate the investigation on the matter of unfair international
trade practices, with respect to the investigation itself.
According to the interpretation
of the federal courts, the petitioner is, to the greatest extent, just a
coadjutant of the investigation -so this situation implies that he/she has an
adjective right to provide information and render evidences-, but in no way such
petitioner may be considered as a “party” -within the meaning of a trial-, whose
rights are in dispute, or upon which depends, in any manner whatsoever, the
development and the termination of the investigation itself. This is supported
by the following precedent:
“MINISTRY OF COMMERCE AND
INDUSTRIAL DEVELOPMENT. AMPARO HAS NO MERITS AGAINST FINAL DETERMINATIONS
ISSUED BY, ON DUMPING. APPLICATION OF SECTION V, ARTICULE 73 OF THE AMPARO
LAW. When final determinations issued by the [Ministry of Commerce] on dumping are
challenged through the amparo trial, including violations to the
respective administrative investigation, such trial has not merits,
because such final determinations do not affect the legal sphere of
particulars. That is so by reading the relevant articles of the [LCE] and
its Regulations in connection with the subject matter at issue, according
to which it is clear that such provisions provide, with respect to an
investigation on unfair international trade practices, and administrative
proceeding in which the petitioners act only as such, because while it is
true that Articles. 10 of the [former] Ley Reglamentaria del Artículo 131 Constitucional en Materia de
Comercio Exterior and 13 of its Regulations Against Unfair
International Commercial Practices require that the individuals or legal
entities producers of identical or similar goods to those that are being
imported or intend to be imported, do represent at least the 25% of the
national production of such merchandise, they may petition for the
[Ministry of Commerce] [to investigate] the facts that may constitute
dumping, and that Article 27 of the above mentioned Regulations provides
that during the period of the investigation, the parties who have
evidenced their interest in the results may render and submit all type of
evidence except for the confessions or those against the public order or
the good customs, but that does not mean that the participation of the
petitioners in any way creates in their favor any right to the assessment
of a countervailing duty, and even less that such countervailing duty
may generate a right or benefit whatsoever for a petitioner to feel
affected by its modification; on the contrary, it is a procedure in which
the [Ministry of Commerce], whether ex officio or upon the request of a
petitioner, is the only one in charge of investigating and determining
the existence or inexistence of dumping, that is, of the unfair
international commercial practice consisting of the importation to the
domestic market of foreign merchandise at a lower price to their normal
value; it must be said that the original intention of the Congress,
upon the issuance of the relevant law, was not to favor particular
interests of a determined individual or legal entity, but to regulate and
promote the foreign trade, the national economy, the stability of the
national production or the performance of any other similar purpose for
the benefit (of the country), as provided for in Article 1o. of the
Ley Reglamentaria del Artículo 131 Constitucional en Materia de
Comercio Exterior.
It is so true that the role of a petitioner is
only as such, that once that a request has been filed (whether it has been
accepted in all its terms or if it has been
remanded for clarification), [the Ministry of Commerce] is devoted to
perform the respective administrative investigation,
in order for which, within a term of five working days, issues a
provisional determination, if so is applicable, imposing the provisional
countervailing duty (Article 11); within the term of thirty days counted
as from the date on which the provisional determination is effective, this
may be confirmed, modified or revoked as applicable; it declares the
initiation of the investigation; receive evidence and orders the rendering
of any other evidence applicable and, finally, issues a final
determination (Articles 12 and 13). Therefore, the fact that the
provisions from which derives the act that is being challenged,
specifically Articles 13 of the law and 27 of the Regulations provide that
the petitioners may render all type of evidence except for those
prohibited, do only mean that such individuals or legal entities act,
in any event, as coadjutants of the investigating authorities in order for
it to determine whether a dumping practice exists or not. In view of
the above, it is clear that the fact that the investigating authority
admit evidences, based on what is provided by the law, does not affect the
plaintiff, since the now petitioner, now plaintiff in this trial, was
only limited to make aware the investigating authority the facts that it
considered to constitute an unfair practice.... Another additional
element confirming the criterion that final determinations on dumping do
not affect the legal standing of petitioners, is the one related to the
nature of the countervailing duties imposed by the authority, which in
principle are a contribution imposed to individuals or legal entities who
import merchandise into the national territory under unfair international
trade practices (Article 35, Section I, item c, of the Customs Law), and
whose purpose is to punish, prevent or dissuade imports under such unfair
trade practices, besides to the fact that they are applicable
independently of the tax tariff that may correspond to the merchandise at
issue, therefore being a regulatory or restrictive measure to the
importation of products, because they are intended to protect the
stability of the national production, and prevent the establishment of new
industries or the development of the already existing ones (Articles 1st
and 8th of the Law). Therefore, it is evident that the attribution to
impose countervailing duties and their collection, are own and exclusive
attributions to the Government, and not to particulars, so their
modification, revocation or confirmation is an act which only affects to
the Government itself, or in any event, to the importers of merchandise under an
unfair trade practice, because they are over whom the relevant
countervailing duty is imposed, but in no way to the national producers in
view of the mentioned above.
FOURTH COLLEGIATE COURT ON
ADMINISTRATIVE MATTERS, FIRST CIRCUIT.
Amparo in Review 334/92.
Fibras Sintéticas, S. A. de C. V. May 14, 1992. Unanimity. Speaker: José
Méndez Calderón. Secretary: Benito Alva Zenteno.
Eight Epoch, Fourth
Collegiate Court on Administrative Matters, First Circuit, Federal Weekly
Judiciary Gazette, Volume X, December, 1992, Page 363.”
(emphasis added)
20. Based on the above, this
Binational Panel does not agree with the participants in opposition to the
Complaint de AGROMEX, that the lack of the character of national producer by
AGROMEX -that according to the Ministry of Commerce, causes the lack of its
“legal standing as a plaintiff”- upon the issuance of the Final Determination at
issue, may indeed be any of the hypotheses set forth in the law provisions
mentioned in the Final Determination at issue, upon which the Ministry of
Commerce allegedly grounded the Final Determination, or that in any other
manner, such circumstance may leave the investigation “without subject matter”.
21. Moreover, this Binational
Panel is also aware of several statements from the Ministry of Commerce during
this review, in the sense that “to the extent that there was not national
production upon the issuance of the Final Determination, there was no a legally
protected interest”, as well as the allegations that such statement is supported
in the alleged impossibility of the petitioner -actual or not, demonstrable or
not- of producing again “within the short or medium term”, as argued by the
Ministry of Commerce during the Public Hearing:
“...it is worth mentioning
that the investigating authority at the time of issuing its final
determination could not impose countervailing duties on a product that was
not produced in the country and with respect to which there were no
indications that it would be produced within the short or medium term.” Transcription of the Public Hearing,
without page
As same as the allegation on the
“legal standing of the plaintiff” on an administrative investigation on unfair
international trade practices, this Binational Panel has found no law provisions
whatsoever upon which it may be grounded any of the above mentioned allegations,
in the sense that the national production must actually exist at the very time
of the issuance of a final determination following an investigation on the
matter of unfair international trade practices, or in the sense that its
termination depends on the possibility of a petitioner to produce or not the
merchandise at issue, within the short, medium or any other term.
Indeed, the sole suggestion that
an investigation may be terminated based on the possibility or impossibility of
a petitioner to produce, seems to imply that the outcome of the investigation
depends on a substantive right of such petitioner. As mentioned before, there is
no such right in favor of any participant.
Furthermore, the concept of
“national production” may certainly have time content (it may be
certainly said that the national production is the existing one). But however,
there is no law provision whatsoever in the LCE, its Regulations or any other
law, to the best knowledge of this Binational Panel, according to which the
injury or threat of injury associated to an unfair commercial practice must be
caused, have caused or continue be causing, yet, during or at the very same time
of the issuance of a final resolution resulting from an investigation on the
matter of unfair international trade practices, in order for the Ministry of
Commerce to be able to assess countervailing duties to the imports that had
caused the injury or the threat of injury.
Actually, the allegation of the
Ministry of Commerce may be reduced to such extreme, by stating that if there is
not national production at the very same time of the issuance of the final
resolution, there is not a legally protected interest, and therefore no
countervailing duty may be imposed.
This reasoning is dangerous
itself, not only because there is no law provision to support it -only by
reading the Article 1 of the LCE, it becomes clear that the purpose of the LCE
is far broader than the mere protection of the existing national
production-, but also because such argument would be equal to the notion that if
an unfair international commercial practice is carried out in such an effective
manner that could exterminate the national production during the course of an
administrative investigation, but before the issuance of the final
determination, that would be sufficient to definitively retain the domestic
market, and also sufficient to avoid any future possibility of being imposed
with countervailing duties in the interest of new domestic industry, protected
by the technicality that “upon the termination of the administrative
investigation, there was not national production (to protect) anymore.”
Again, according to the precedent
recently mentioned above, the federal courts have interpreted that the
administrative investigations on the matter of unfair international trade
practices, are conducted not only to protect the existing national production,
but also the future industry.
“MINISTRY OF COMMERCE AND
INDUSTRIAL DEVELOPMENT. AMPARO HAS NO MERITS AGAINST FINAL DETERMINATIONS
ISSUED BY, ON DUMPING. APPLICATION OF SECTION V, ARTICULE 73 OF THE AMPARO
LAW. ... Another additional element confirming the criterion that final
determinations on dumping do not affect the legal standing of petitioners,
is the one related to the nature of the countervailing duties imposed by
the authority, which in principle
are a contribution imposed
to individuals or legal entities who import merchandise into the national
territory under unfair international trade practices (Article 35, Section
I, item c, of the Customs Law), and whose purpose is to punish, prevent
or dissuade imports under such unfair trade practices, besides to the
fact that they are applicable independently of the tax tariff that may
correspond to the merchandise at issue, therefore being a regulatory or
restrictive measure to the importation of products, because they are
intended to protect the stability of the national production, and prevent
the establishment of new industries or the development of the already
existing ones (Articles 1st and 8th of the Law)...
FOURTH COLLEGIATE COURT ON
ADMINISTRATIVE MATTERS, FIRST CIRCUIT.
Amparo in Review 334/92.
Fibras Sintéticas, S. A. de C. V. May 14, 1992. Unanimity. Speaker: José
Méndez Calderón. Secretary: Benito Alva Zenteno.
Eight Epoch, Fourth
Collegiate Court on Administrative Matters, First Circuit, Federal Weekly
Judiciary Gazette, Volume X, December, 1992, Page 363.”
(emphasis added)
22. Based on the above, this
Binational Panel finds merits on the claim at issue, in the sense that the Final
Determination lacks of reasoning and legal grounds to support the Ministry of
Commerce’s determination to terminate the administrative investigation on the
basis that such investigation was allegedly left “without subject matter”,
derived from circumstances due to the petitioner, including the alleged lack of
“legal standing of the plaintiff” by the time of the issuance of the Final
Determination, circumstance which affected the defense of Complainant and
affected the sense of the resolution, in violation to Article 238, section II of
the CFF.
Notes:
2 |
It is worth mentioning that the Foreign Trade
Law makes reference to “interested parties” to an antidumping
investigation. However, as supported in this Decision, such terminology
does not imply in any manner whatsoever that a petitioner becomes a
“party” -in the sense of a trial, being in dispute a right of such
petitioner-. |
|