Opinion of the Advocate General — ECLI:EU:C:2014:2105
Date: 2014-07-17
Language of the case: French
Subject matter: Dumping;External relations;Commercial policy
Procedure: Action for annulment;Appeal - unfounded

Summary — Judgment of the Court (Second Chamber) 1 October 2014 1. Appeals — Grounds — Mistaken assessment of the facts — Inadmissibility — Review by the Court of the evaluation of the evidence — Possible only where the clear sense of the evidence has been distorted — Legal classification of the facts — Admissibility (Art. 256(1) TFEU; Statute of the Court of Justice, Art. 58, first para.) 2. Common commercial policy — Protection against dumping — Dumping margin — Determination of the normal value — Factor to which regard must primarily be had — Price charged in the ordinary course of trade — Exemptions provided for by the basic anti-dumping Regulation — Exhaustive nature (Council Regulation No 1225/2009, Arts 2(1), first para., and 3, first para.) 3. Common commercial policy — Protection against dumping — Dumping margin — Determination of the normal value — Basis for the price paid or to be paid during the ordinary course of trade — Concept of ordinary course of trade (Council Regulation No 1225/2009, Arts 2(2), 3 and 6) 1. See the text of the decision. (see paras 16-19) 2. See the text of the decision. (see paras 20, 21) 3. In order to establish whether a product has been dumped, the ordinary course of trade is a concept which relates to the character of the sales themselves and not the price of the product. Where a sale is concluded on terms and conditions that are incompatible with commercial practice for sales of the like product on that market at the relevant time for determining whether or not dumping has occurred, that sale does not constitute an appropriate basis on which to determine the normal value of the like product on that market. Furthermore, since the price of a product is only one of the conditions of a commercial transaction, the question whether a price is charged in the ordinary course of trade depends also on the other conditions of a transaction which are capable of affecting the prices charged, such as the volume of the transaction, the additional obligations assumed by the parties to that transaction or the delivery period. In the context of that assessment, which has to be carried out on a case-by-case basis, the institutions must take into consideration all the relevant factors and all the particular circumstances relating to the sales at issue. Concerning the inclusion, in the calculation of the profit margin established for the purposes of constructing normal value, of a premium to cover the risk of non-payment artificially boosting the normal value arrived at by means of that calculation, with the result that that normal value no longer reflects as closely as possible the sale price of a product as it would be if the product in question were sold in the country of origin in the ordinary course of trade, such an inclusion amounts to the insertion into that calculation of a factor which does not go to establishing the price at which the product concerned would be sold in normal conditions on the domestic market. In such a case, the institutions must examine whether those conditions have been applied to all customers in general on the market of the like product. (see paras 25, 27-30, 32)