Badr Tadlaoui
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1:03 p.m. – January 11, 2025
The United States Court of International Trade ordered, on January 8, a referral for a new analysis of the anti-dumping investigation into Moroccan phosphate fertilizers, Barlamane.com learned from sources familiar with the matter. The court rejected the Commerce Department’s decision, calling it“absurd” the argument according to which a subsidy to the Cherifian Phosphate Office (OCP) would be de facto specific. She also underlined the absence of convincing evidence and solid justifications, particularly with regard to the weight of this subsidy on the Moroccan economy and the distribution of the benefits of the tax relief program.
The United States Court of International Trade confirmed, in a decision rendered on January 8, the cancellation of countervailing duties imposed on phosphate fertilizers from Morocco. This decision echoes an appeal from the Cherifian Phosphate Office (OCP) which won a new legal round against the American Department of Commerce, Barlamane.com learned from its sources.
In its decision, the American court found that the Department of Commerce had not provided convincing evidence to justify the existence of subsidies “specific” granted to OCP, a necessary condition for the imposition of countervailing duties. In particular, the court criticized the methodology used by the Commerce Department to calculate the magnitude of these alleged subsidies, finding it “erroneous and not in compliance with World Trade Organization rules.”
This is the second time that the United States Court of International Trade has canceled an anti-dumping investigation against Moroccan phosphate fertilizers. In short, the court rejected the DOC’s arguments for several reasons, according to our information:
- Lack of evidence of specificity : the DOC failed to demonstrate that the subsidies granted to OCP were reserved for this company and not for other similar entities.
- Methodological error : DOC used a flawed process to calculate the magnitude of subsidies, comparing non-comparable data.
- Lack of proof of unfair advantage : the DOC did not provide proof that OCP benefited from preferential treatment compared to other Moroccan companies.
The OCP emerges strengthened from this new legal ordeal. Furthermore, questions about the DOC’s practices are multiplying, especially the difficulties encountered by the agency in proving the existence “unfair commercial practices” in this type of investigation. There is also the “specificity” : the heart of the dispute lies in the notion of “specific subsidy”while the court recalled that for a subsidy to be considered specific, it must be granted to a specific company or to a restricted group of companies. The DOC failed to prove that the financing granted to OCP met this criterion.
The methodology by the DOC for calculating the size of the allocations, deemed “illogical” et “defying logic and common sense.” Furthermore, the DOC had not provided proof that OCP benefited from preferential treatment compared to other Moroccan companies. For the Moroccan giant, this legal victory is excellent news, but it remains to be seen whether this decision will be final or if the DOC will appeal.
