Judgment — ECLI:EU:T:2000:221
Date: 2000-09-29
Language of the case: English
Court formation: Third Chamber, Extended Composition
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Dumping;External relations;Commercial policy
Concepts: Statement of reasons;Anti-dumping and anti-subsidy measures;Principle of proportionality
Procedure: Action for annulment - unfounded

Summary of the Judgment 
1. Common commercial policy — Protection against dumping — Dumping margin — 
Introduction of a fixed anti-dumping duty — Conditions 
(Council Regulations No 384/96, Arts 2(11) and (12), 9(4), 11(3) and (8), and 
No 449/98) 
2. Common commercial policy — Protection against dumping — Fixing of anti-dumping 
ditties — Choice of duties to be imposed — Observance of the principle of 
proportionality — Discretion of the Community legislature — Judicial review — 
Limits 
(EC Treaty, Art. 3b (now Art. 5 EC); Council Regulation No 384/96, Arts 9(4), 14(1) 
and 21(1)) 
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SUMMARY — CASE T-87/98 
3. Acts of the institutions — Statement of reasons — Obligation —· Scope 
(EC Treaty, Art. 190 (now Art. 253 EC)) 
1. The established dumping margin refer­
red to in Article 9(4) of the basic anti­
dumping regulation (Regulation 
No 384/96) is the margin found during 
the period of investigation. Under Arti­
cle 2(11) and (12) of the regulation, the 
dumping margin is determined by 
reference to that period. 
The basic anti-dumping regulation 
(No 384/96) does not permit any fac­
tors other than those in respect of 
which findings are made during the 
period of investigation, such as, for 
example, the actual dumping margin 
for future export transactions, to be 
taken into account for the purposes of 
fixing the dumping margin. A Council 
regulation imposing anti-dumping 
duties must be based on facts estab­
lished following a procedure in which 
interested parties make known their 
views. Thus, under the basic anti­
dumping regulation (No 384/96), the 
concept of an actual dumping margin is 
relevant only in the context of proce­
dures for the review of existing duties 
or the refund of duty collected, which 
are referred to in paragraphs (3) and 
(8) respectively of Article 11 of the 
regulation. 
Therefore an exporter whose products 
have been subject to a fixed anti­
dumping duty and who acknowledges 
that the fixed duty was set at a level 
equal to the margin of dumping estab­
lished during the investigation — and 
who does not dispute that the dumping 
margin was lower than the injury 
margin — cannot claim that the impo­
sition of a fixed duty infringed Arti­
cle 9(4) of the basic regulation, even if 
the anti-dumping duty imposed was 
higher than the 'actual' dumping mar­
gin. 
(see paras 33-37) 
2. By virtue of the principle of propor­
tionality, as expressed in Article 3b of 
the Treaty (now Article 5 EC), the 
legality of Community rules is subject 
to the condition that the means 
employed must be appropriate to attain 
the legitimate objective pursued and 
must not go further than is necessary to 
attain it, and, where there is a choice of 
appropriate measures, it is necessary, in 
principle, to choose the least onerous. 
It is apparent from Article 9(4) and 
Article 21(1) of the basic anti-dumping 
regulation (No 384/96) that the objec­
tive pursued by the Community insti­
tutions in imposing an anti-dumping 
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INTERNATIONAL POTASH COMPANY V COUNCIL 
duty is the elimination of the dumping 
margin in so far as that margin harms 
the Community industry. Nevertheless, 
having regard to the fact that Arti­
cle 14(1) of the basic regulation leaves 
the Community institutions a wide 
discretion to determine, in each case, 
the appropriate type of duty, review by 
the Community judicature must be 
limited to ascertaining whether the 
measures adopted by the Community 
legislature are manifestly inappropriate 
having regard to the objective pursued. 
Before imposing anti-dumping duties, 
the Community institutions balance the 
various interests at stake. They take 
into account not only the interests of 
the importers and exporters being 
investigated, but also the interests of 
the Community industry, and, as is 
apparent from Article 21 of the basic 
anti-dumping regulation (No 384/96), 
the interests of users and consumers. 
The fact that various interests are to be 
balanced is conveyed by the wording of 
Article 9(4) of the basic regulation, 
which provides that the amount of the 
anti-dumping duty may not exceed the 
amount necessary to remove the injury 
to the Community industry. 
Therefore, it is reasonable for the 
Community institutions to take into 
account considerations relating to the 
effectiveness of the measure which they 
may take when choosing the type of 
duty to be imposed. It follows that in 
deciding upon the appropriate anti­
dumping duty the institutions may take 
into account the risk of the duty in 
question being circumvented. Where 
circumvention of a type of duty is 
foreseeable, that duty will be inap­
propriate, because applying it will not 
result in the elimination of the injury 
caused to the Community industry. 
(see paras 39-40, 42, 52-53) 
3. The statement of reasons required by 
Article 190 of the Treaty (now Arti­
cle 253 EC) must show clearly and 
unequivocally the reasoning of the 
Community authority adopting the 
contested measure, so as to inform the 
persons concerned of the reasons given 
for the measure adopted and thus 
enable them to defend their rights and 
the Community judicature to exercise 
its power of review. The extent of the 
obligation to state reasons must be 
assessed in the light of the context and 
the procedure in which the contested 
regulation was adopted and the body 
of legal rules governing the field con­
cerned. 
(see para. 65) 
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