Judgment — ECLI:EU:T:2002:280
Date: 2002-11-21
Language of the case: English
Court formation: Fourth 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;Rights of the defence and procedural guarantees
Procedure: Action for annulment - unfounded;Action for annulment - successful

Summary of the Judgment 
1. Common commercial policy — Protection against dumping — Dumping margin — 
Détermination of the export price — Recourse to a constructed export price — 
Conditions — Discretion of the institutions — Review by the Court — Limits 
(Council Regulation No 384/96, Art. 2(9» 
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SUMMARY — CASE T-88/98 
2. Common commercial policy — Protection against dumping — Dumping margin — 
Determination of the export price — Recourse to a constructed export price — 
Whether permissible where there appears to be a compensatory arrangement between 
the producer and the exporter 
(Council Regulation No 384/96, Art. 2(9)) 
3. Common commercial policy — Protection against dumping — Dumping margin — 
Comparison between the normal value and the export price — Adjustments — 
Burden of proof 
(Council Regulation No 384/96, Art. 2(10)) 
4. Common commercial policy — Protection against dumping — Conduct of the 
investigation — Information provided by a concerned undertaking — Challenge by 
the undertaking itself — Not permissible 
(Council Regulation No 384/96, Art. 18(3)) 
5. Community law — Principles — Rights of the defence — Observance of those rights 
in administrative procedures — Anti-dumping — Duty of the institutions to keep the 
undertakings concerned informed — Scope 
(Council Regulation No 384/96, Art. 20) 
1. It is apparent from Article 2(9) of the 
basic ant i -dumping Regulat ion 
No 384/96 that the institutions may 
treat the export price as unreliable in 
two cases, namely where there is an 
association between the exporter and 
the importer or a third party or a 
compensatory arrangement between 
the exporter and the importer or a 
third party. In any other case, where an 
export price exists, the institutions are 
required to base their determination of 
dumping on that price. 
However, the question whether or not 
the export prices reported by the appli­
cant were reliable necessarily entails 
complex economic assessments in 
respect of which the institutions enjoy 
a wide discretion, so that the Court's 
power of review is restricted. 
(see paras 49-50) 
2. The method of inferring that there is an 
association or a compensatory arrange­
ment between the producer and the 
exporter from the finding that the 
resale prices charged by the exporter 
on the Community market are below 
the purchase price charged to it by the 
producer is not contrary to either the 
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KUNDAN AND TATA v COUNCIL 
letter or the spirit of Article 2(9) of the 
basic ant i -dumping Regulation 
No 384/96. It is apparent from that 
provision, and in particular from the 
use of the term 'where it appears', that 
the institutions have a certain latitude 
in deciding whether it is appropriate to 
apply that article and that recourse 
may be had to the constructed export 
price not only where the institutions 
obtain evidence of the existence of a 
compensatory arrangement but also 
where such an arrangement appears 
to exist. 
(see paras 60-61) 
3. It is apparent from both the wording 
and the scheme of Article 2(10) of the 
basic ant i -dumping Regulation 
No 384/96 that an adjustment to the 
export price or the normal value may 
only be made to take account of 
differences in factors which affect the 
prices and therefore their comparabil­
ity. That is not the case for a commis­
sion which has not actually been paid. 
To be able to make such an adjust­
ment, the institutions must base their 
decision on factors capable of showing, 
or of giving rise to the inference, that a 
commission was in fact paid and was 
such as to have a definite effect on the 
comparison between the export price 
and the normal value. 
Just as a party who is claiming adjust­
ments under Article 2(10) of the basic 
regulation in order to make the normal 
value and the export price comparable 
for the purpose of determining the 
dumping margin must prove that his 
claim is justified, it is incumbent upon 
the institutions, where they consider 
that they must make an adjustment of 
that kind, to base their decision on 
direct evidence or at least on circum­
stantial evidence pointing to the exist­
ence of the factors for which the 
adjustment was made, and to deter­
mine its effect on price comparability. 
(see paras 94-96) 
4. Although Article 18(3) of the basic 
anti-dumping Regulation No 384/96 
allows an interested party to claim that 
the institutions wrongly rejected infor­
mation submitted by that party, it does 
not give that party the right to have 
information rejected which it sub­
mitted itself. 
(see para. 110) 
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SUMMARY — CASE T-88/98 
5. Pursuant to the principle of the respect 
of the rights of the defence, the require­
ments of which are laid down in 
Article 20 of the basic anti-dumping 
Regulation No 384/96, the undertak­
ings affected by an investigation 
preceding the adoption of an anti­
dumping regulation must be placed in 
a position during the administrative 
procedure in which they can effectively 
make known their views on the cor­
rectness and relevance of the facts and 
circumstances alleged and on the evi­
dence presented by the Commission in 
support of its allegation concerning the 
existence of dumping and the resultant 
injury. 
(see para. 132) 
II - 4900