Opinion of the Advocate General — ECLI:EU:C:2000:542
Date: 2000-10-05
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Dumping;External relations;Commercial policy
Procedure: Action for annulment;Appeal - unfounded
Origin: Provisional data;Japan;United States

Summary of the Judgment 
1. Common commercial policy — Protection against dumping — Dumping margin — 
Determination of normal value — Exhaustive nature of the situations provided for in 
the opening wording of Article 2(3)(b) of the basic anti-dumping regulation, 
authorising the Community institutions to depart front the method of establishing 
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SUMMARY — JOINED CASES C-76/98 P AND C-77/98 P 
the normal value on the basis of the actual price — Recourse to the constructed value 
method where a product enjoys patent protection in the exporter's domestic market — 
Creation of a situation not provided for by Article 2(3) of the regulation — Excluded 
(Council Regulation No 2423/88, Art. 2(3)(a) and (b)) 
2. Common commercial policy — Protection against dumping — Regulation imposing 
a definitive anti-dumping duty — Unlawfulness, on account of an infringement of the 
rights of the defence, of the regulation imposing a provisional anti-dumping duty — 
Effect on the lawfulness of the regulation imposing a definitive duty — Conditions 
(Council Regulation No 2423/88, Art. 7(4)) 
1. Article 2(3) of the basic anti-dumping 
regulation, Regulation No 2423/88, 
prescribes three separate methods for 
establishing the normal value. The first 
method, laid down in Article 2(3)(a), 
consists of determining the normal 
value on the basis of the actual price, 
that is to say, the comparable price 
actually paid or payable in the ordinary 
course of trade for the like product 
intended for consumption in the 
exporting country or country of origin. 
According to the second method, pro­
vided for in Article 2(3)(b)(i), the nor­
mal value is to be established on the 
basis of the comparable price of the 
like product when exported to any 
third country. Lastly, under the third 
method, prescribed in Article 2(3) 
(b)(ii), the normal value is to be 
calculated on the basis of a constructed 
value. The opening words of Art­
icle 2(3)(b) of the regulation state that 
the Community institutions are 
required to have recourse to the latter 
two methods when there are no sales of 
the like product in the ordinary course 
of trade on the domestic market of the 
exporting country or country of origin, 
or when such sales do not permit a 
proper comparison. 
According to the wording and scheme 
of Article 2(3)(a), in order to establish 
the normal value regard must be had 
primarily to the price actually paid or 
payable in the ordinary course of trade. 
It is apparent from Article 2(3)(b) that 
that principle can be derogated from 
only when there are no sales of the like 
product in the ordinary course of trade 
or when such sales do not permit a 
proper comparison. The ordinary 
course of trade is a concept which 
relates to the nature of the sales 
themselves. It is designed to exclude, 
for the determination of the normal 
value, situations in which sales on the 
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AJINOMOTO AND NUTRASWEET V COUNCIL AND COMMISSION 
domestic market are not made under 
conditions corresponding to the ordin­
ary course of trade, in particular where 
a product is sold at a price below 
production costs or where transactions 
take place between parties which are 
associated or have a compensatory 
arrangement with each other. Lastly, 
the requirement that sales on the 
exporter's domestic market must per­
mit a proper comparison is concerned 
with the question whether those sales 
are sufficiently representative to serve 
as a basis for the determination of the 
normal value. Transactions on the 
domestic market must reflect normal 
behaviour on the part of purchasers 
and result from normal patterns of 
price formation. 
It follows that the argument that 
recourse must also be had to the 
calculation method based on a con­
structed normal value where, on 
account of the product being protected 
by a patent on the exporter's domestic 
market, the price of the product on that 
market is not comparable with the 
export price adds to the two situations 
exhaustively set out in the opening 
words of Article 2(3)(b) of the regula­
tion a further situation which that 
provision does not envisage, and must 
therefore be rejected. 
(see paras 33-43) 
2. The legality of a definitive regulation 
providing for the collection of the 
provisional anti-dumping duty may be 
affected by any illegality of the provi­
sional regulation only in so far as that 
illegality is reflected in the definitive 
regulation. 
The fact that the exporter has not been 
informed in due time of the imposition 
of the provisional duty cannot affect 
the definitive collection of that duty, 
since it had the opportunity of making 
known its arguments before the defini­
tive regulation was adopted. 
It follows that the Court of First 
Instance rightly held that even if the 
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principle of the right to a fair hearing 
requires exporters to be informed of 
the essential facts and considerations 
on the basis of which it is intended to 
impose provisional duties, a failure to 
respect that right cannot in itself have 
the effect of vitiating the regulation 
imposing definitive duties where, in the 
course of the procedure for the adop­
tion of the latter regulation, the defect 
vitiating the procedure for the adoption 
of the corresponding regulation impos­
ing provisional duties was remedied. 
(see paras 65-67) 
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