Judgment — ECLI:EU:T:1999:251
Date: 1999-10-12
Language of the case: English
Court formation: Fifth Chamber, Extended Composition
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Dumping;External relations;Commercial policy
Concepts: Anti-dumping and anti-subsidy measures
Procedure: Action for annulment - unfounded

Summary of the Judgment 
1. Common commercial policy — Protection against dumping — Dumping margin — 
Determination of the normal value — Use of a constructed value — Order in which 
the various calculation methods must be considered — Only reliable accounting data 
to be used — Discretion of the institutions — Judicial review — Limits 
(Council Regulation No 2423/88, Art. 2(3)(b)(ii)) 
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SUMMARY — CASE T-48/96 
2. Common commercial policy — Protection against dumping — Injury — Verification 
by the Commission — Burden of proof — Powers of investigation — Limits — Data 
other than that provided by the undertakings to be taken into account 
(Regulation No 2423/88, Art. 7(2) (a) and (b)) 
3. Common commercial policy — Protection against dumping — Dumping margin — 
Determination of the normal value — Constructed value — Selling expenses — 
Meaning — Costs related to product repairs — Reductions for payment in cash — 
Covered 
(Council Regulation No 2423/88, Art. 2(3)(a) and (b)(ii)) 
1. It is clear from the wording of Arti­
cle 2(3)(b)(ii) of the basic anti-dumping 
regulation, Regulation No 2423/88, 
which sets out three methods of calcu­
lating the constructed normal value, 
that those methods must be considered 
in the order in which they are set out. It 
is only where none of those methods 
can be applied that recourse must be 
had to the general provision at the end 
of Article 2(3)(b)(ii), to the effect that 
expenses and profit may be calculated 
'on any other reasonable basis'. More­
over, each of the methods of calculating 
constructed normal value must be 
applied in such a way that the calcula­
tion remains reasonable. Accordingly, 
the institutions cannot take into con­
sideration accounting data which are 
unreliable. 
Article 2(3)(b)(ii) also confers a wide 
discretion on the institutions in asses­
sing accounting data submitted to them 
for the purposes of determining con­
structed normal value. The Court's 
review must therefore be restricted to 
verifying whether the procedural rules 
have been complied with, whether the 
facts on which the contested assess­
ment is based are accurate or whether 
there has been a manifest error in the 
appraisal of those facts or a misuse of 
powers. 
The Community judicature cannot 
intervene in assessments reserved to 
the Community authorities but must 
restrict its review to satisfying itself 
that the institutions took account of all 
the relevant circumstances and 
appraised the facts of the matter with 
all due care, so that normal value may 
be regarded as having been determined 
in a reasonable manner. 
2. Under the basic anti-dumping regula­
tion, Regulation No 2423/88, it is for 
the Commission, as the investigating 
authority, to determine whether the 
product in question is being dumped 
and causing damage when it is released 
into free circulation in the Community. 
To that end, the Commission must 
verify whether the export price to the 
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ACME V COUNCIL 
Community of the product in question 
is lower than the normal value of a 
similar product and, in so doing, must 
use the data available at the time 
without imposing the burden of proof 
on one of the parties. 
However, the basic regulation does not 
confer on the Commission investigat­
ing powers enabling it to compel pro­
ducers or exporters in respect of whom 
a complaint has been filed to partici­
pate in an investigation or to produce 
information. The replies given by 
undertakings to the questionnaire, and 
the verification after which the Com­
mission may act on the spot are there­
fore essential to the course of the 
procedure. 
Thus, the risk that the institutions may 
take into account data other than that 
provided in reply to the questionnaire 
is inherent in the anti-dumping proce­
dure and is intended to encourage 
genuine cooperation on the part of 
the undertakings targeted by the inves­
tigation. 
3. Costs relating to product repairs, incur­
red after the sale of the product, are by 
definition selling expenses within the 
meaning of Article 2(3)(b)(ii) of the 
basic anti-dumping regulation, Regula­
tion No 2423/88. It follows that those 
costs must be taken into account when 
calculating the constructed normal 
value. The way in which undertakings 
treat certain types of costs when draw­
ing up their annual accounts cannot 
call into question the classification of 
those costs for the purposes of an anti­
dumping investigation. 
Furthermore, by their nature, reduc­
tions for payment in cash do not affect 
the price payable by customers but 
correspond to the value attributed to 
early payment of the invoiced price. 
They are not therefore deductible from 
the constructed normal value and must 
be treated as selling expenses. 
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