Opinion of the Advocate General — ECLI:EU:C:2007:501
Date: 2007-09-11
Language of the case: Italian
Based on: Treaty establishing the European Coal and Steel Community (1951)
Subject matter: Dumping;External relations;Commercial policy
Procedure: Reference for a preliminary ruling
Origin: Italy

Summary of the Judgment 1. ECSC – Common commercial policy – Protection against dumping – Anti-dumping duty (Commission Decision No 2424/88, Arts 1 and 2(1)) 2. ECSC – Common commercial policy – Protection against dumping – Fixing of anti-dumping duties – Method of calculation (Council Regulation No 2913/92, Art. 31(1); Commission Decision No 67/94, Art. 1(2)) 1. It follows from Articles 1 and 2(1) of Decision No 2424/88 on protection against dumped or subsidised imports from countries not members of the European Coal and Steel Community that the rules on anti-dumping are aimed at protecting against dumped or subsidised imports and an anti-dumping duty may be applied to any dumped product whose release for free circulation in the Community causes injury. Having regard to those provisions, the application of an anti-dumping measure thus presupposes that introduction of the goods into the Community market will harm the Community industry. The anti-dumping legislation does not concern a sale of goods as such as long as the goods are not actually exported to the Community customs territory or placed in free circulation within the Community. Anti-dumping duties are designed to neutralise the dumping margin arising from the difference between the price on export to the Community and the normal value of the product and thereby to nullify the injurious effects of the importation of the goods concerned into the Community. Thus, the objective of the anti-dumping rules does not involve, in principle, the levying of an anti-dumping duty established on the basis of the price indicated in a prior sale of the goods concerned if the price actually paid or payable by the person making the declaration is equivalent to or greater than the minimum price laid down in the anti-dumping measure. (see paras 39-41) 2. In accordance with Article 1(2) of Decision No 67/94 imposing a provisional anti-dumping duty on imports into the Community of hematite pig iron, originating in Brazil, Poland, Russia and Ukraine, the customs authorities may not determine the customs value for the purpose of applying the anti-dumping duty established by that decision on the basis of the price indicated for the goods concerned in a sale prior to that on the basis of which the customs declaration was made in the case where the declared price corresponds to the price actually paid or payable by the importer. The addition of the term ‘declared’ to the concept of customs value in that provision emphasises that the basis for applying an anti-dumping duty is not the customs value as such but the customs value declared by the importer. It follows from that provision, therefore, that the prices indicated in sales which took place prior to that on the basis of which the customs declaration was made by the importer cannot be taken into account for the application of an anti-dumping duty. By contrast, if the customs authorities have reasonable doubts as to the accuracy of the declared value and their doubts are confirmed after they have asked for additional information or documents and have provided the person concerned with a reasonable opportunity to respond to the grounds for those doubts, without it being possible to determine the price actually paid or payable, they may, in accordance with Article 31 of Regulation No 2913/92 establishing the Community Customs Code, calculate the customs value for the purpose of applying the anti-dumping duty established by Decision No 67/94 by reference to the price agreed for the goods in question in the most recent sale prior to that on the basis of which the customs declaration was made and in regard to which the customs authorities have no objective reason to doubt its accuracy. First, where such a doubt exists, the customs authorities need not necessarily determine the customs valuation of imported goods on the basis of the transaction value method if they are not satisfied, on the basis of reasonable doubts, that the declared value represents the total amount paid or payable, and they may refuse to accept the declared price if those doubts continue after they have asked for additional information or documents and have provided the person concerned with a reasonable opportunity to respond to the grounds for those doubts. Secondly, having regard to the particular characteristic of a variable anti-dumping duty, reference to that price indicated in a sale which took place prior to that on the basis of which the customs declaration was made constitutes a means of determining a customs value which is both ‘reasonable’ within the meaning of Article 31(1) of Regulation No 2913/92 and consistent with the principles and general provisions of the international agreements and the provisions referred to in Article 31(1). (see paras 33, 49, 52, 61, 63-64, operative part)