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"B COMMISSION DECISION No 2277/96/ECSC
of 28 November 1996
on protection against dumped imports from countries not members of the European Coal and Steel
Community
(OJ L 308, 29.11.1996, p. 11)
Amended by:
Official Journal
No page date
"M1 Commission Decision No 1000/1999/ECSC of 11 May 1999 L 122 35 12.5.19991996S2277 — EN — 12.05.1999 — 001.001 — 1
COMMISSION DECISION No 2277/96/ECSC
of 28 November 1996
on protection against dumped imports from countries not members of the
European Coal and Steel Community
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Coal and Steel
Community, and in particular Article 74 thereof,
(1) Whereas, by Decision No 2424/88/ECSC (1), the Commission adopted
common rules for protection against dumped or subsidized imports
from countries which are not members of the European Coal and SteelCommunity;
(2) Whereas those rules were adopted in accordance with existing
international obligations, in particular those arising from Article VI ofthe General Agreement on Tariffs and Trade (hereinafter referred to as‘GATT’), from the Agreement on Implementation of Article VI of the
GATT (1979 Anti-Dumping Code) and from the Agreement on
Interpretation and Application of Articles VI, XVI and XXIII of theGATT (Code on Subsidies and Coutervailing Duties);
(3) Whereas the multilateral trade negotiations concluded in 1994 have led
to new Agreements on the implementation of Article VI of GATT and itis therefore appropriate to amend the Community rules in the light ofthose new Agreements; whereas it is also desirable, in the light of the
different nature of the new rules for dumping and subsidies respectively,
to have a separate body of Community rules in each of those two areas;whereas, consequently, the new rules on protection against subsidies and
countervailing duties will be contained in a separate Decision;
(4) Whereas, in applying the rules it is essential, in order to maintain the
balance of rights and obligations which the GATT Agreementestablishes, that the Community take account of how they are
interpreted by the Community’s major trading partners;
(5) Whereas the new agreement on dumping, namely the Agreement on
Implementation of Article VI of the General Agreement on Tariffs and
Trade 1994 (hereinafter referred to as ‘the 1994 Anti-Dumping
Agreement’) contains new and detailed rules, relating in particular tothe calculation of dumping, procedures for initiating and pursuing aninvestigation, including the establishment and treatment of the facts, the
imposition of provisional measures, the imposition and collection of
anti-dumping duties, the duration and review of anti-dumping measuresand the public disclosure of information relating to anti-dumping
investigations; whereas, in view of the extent of the changes and to
ensure a proper and transparent application of the new rules, thelanguage of the new agreements should be brought into Communitylegislation as far as possible;
(6) Whereas the 1994 Anti-dumping Agreement has been implemented by
the European Community through Council Regulation (EC) No384/96 (
2), whereas it is therefore appropriate to provide for the
analogous application by the European Coal and Steel Community of
the principles and definitions contained in Regulation (EC) No 384/96to ensure the homogeneity of the external trade legislation of theEuropean Communities, whilst taking account of the decision making
processes of the European Coal and Steel Community;
(7) Whereas it is desirable to lay down clear and detailed rules on the
calculation of normal value; whereas in particular such value should in
all cases be based on representative sales in the ordinary course of trade
in the exporting country; whereas, it is expedient to define thecircumstances in which domestic sales may be considered to be made ata loss and may be disregarded, and in which recourse may be had to
remaining sales, or to constructed normal value, or to sales to a third
country; whereas it is also desirable to provide for a proper allocation ofcosts, even in start-up situations; whereas it is also appropriate to lay!B
(1) OJ No L 209, 2. 8. 1988, p. 18.
(2) OJ No L 56, 6. 3. 1996, p. 1.1996S2277 — EN — 12.05.1999 — 001.001 — 2
down guidance as to definition of start-up and the extent and method of
allocation; whereas it is also necessary, when constructing normalvalue, to indicate the methodology that is to be applied in determiningthe amounts for selling, general and administrative costs and the profit
margin that should be included in such value;
(8) Whereas when determining normal value for non-market economy
countries, it appears prudent to set out rules for choosing the appropriatemarket-economy third country that it is to be used for such purpose and,
where it is not possible to find a suitable third country, to provide that
normal value may be established on some other reasonable basis;
(9) Whereas it is expedient to define the export price and to enumerate the
adjustments which are to be made in those cases where a reconstruction
of this price from the first open-market price is deemed necessary;
(10) Whereas, for the purpose of ensuring a fair comparison between export
price and normal value, it is advisable to list the factors which mayaffect prices and price comparability and to lay down specific rules as to
when and how the adjustments should be made, including the fact that
any duplication of adjustments should be avoided; whereas it is alsonecessary to provide that comparison may be made using average pricesalthough individual export prices may be compared to an average
normal value where the former vary by customer, region or time period;
(11) Whereas it is desirable to lay down clear and detailed guidance as to the
factors which may be relevant for the determination of whether thedumped imports have caused material injury or are threatening to cause
injury; whereas, in demonstrating that the volume and price levels of the
imports concerned are responsible for injury sustained by a Communityindustry, attention should be given to the effect of other factors and inparticular prevailing market conditions in the Community;
(12) Whereas it is advisable to define the term ‘Community industry’ and to
provide that parties related to exporters may be excluded from suchindustry and to define the term ‘related’; whereas it is also necessary toprovide for anti-dumping action to be taken on behalf of producers in a
region of the Community and to lay down guidelines on the definition
of such a region;
(13) Whereas it is necessary to lay down who may lodge an anti-dumping
complaint, including the extent to which it should be supported by the
Community industry, and to lay down the information on dumping,
injury and causation which such a complaint should contain; whereas itis also expedient to specify the procedures for the rejection ofcomplaints or the initiation of proceedings;
(14) Whereas it is necessary to lay down the manner in which interested
parties should be given notice of the information which the authoritiesrequire, and should have ample opportunity to present all relevantevidence and to defend their interests; whereas it is also desirable to set
out clearly the rules and procedures to be followed during the
investigation, in particular the rules whereby interested parties are tomake themselves known, present their views and submit informationwithin specified time-limits, if such views and information are to be
taken into account; whereas it is also appropriate to set out the
conditions under which an interested party may have access to, andcomment on, information presented by other interested parties; whereasthere should also be cooperation between the Member States and the
Commission in the collection of information;
(15) Whereas it is necessary to lay down the conditions under which
provisional duties may be imposed, including the condition that theymay be imposed no earlier than 60 days from initiation and no later than
nine months thereafter; whereas, for administrative reasons, it is also
necessary to provide that such duties may in all cases be imposed by theCommission either directly for a nine-month period or in two stages of
six and three months;
(16) Whereas it is necessary to specify procedures for accepting undertak-
ings which eliminate dumping and injury instead of imposingprovisional or definitive duties; whereas it is also appropriate to laydown the consequences of any breach or withdrawal of undertakings
and to provide that provisional duties may be imposed in cases of
suspected violation or where further investigation is necessary to!B1996S2277 — EN — 12.05.1999 — 001.001 — 3
supplement the findings; whereas, in accepting undertakings, care
should be taken that the proposed undertakings, and their enforcement,do not lead to anti-competitive behaviour;
(17) Whereas it is necessary to provide that the termination of cases should,
irrespective of whether definitive measures are adopted or not, normallytake place within 12 months, and in no case later than 15 months, fromthe initiation of the investigation; whereas investigations or proceedings
should be terminated where the dumping is de minimis or the injury is
negligible, and it is appropriate to define those terms; whereas, wheremeasures are to be imposed, it is necessary to provide for thetermination of investigations and to lay down that measures should be
less than the margin of dumping if such lesser amount would remove the
injury, as well as to specify the method of calculating the level ofmeasures in cases of sampling;
(18) Whereas it is necessary to provide for retroactive collection of
provisional duties if that is deemed appropriate, and to define thecircumstances which may trigger the retroactive application of duties toavoid the undermining of the definitive measures to be applied; whereas
it is also necessary to provide that duties may be applied retroactively in
cases of breach or withdrawal of undertakings;
(19) Whereas it is necessary to provide that measures are to lapse after five
years unless a review indicates that they should be maintained; whereas
it is also necessary to provide, in cases where sufficient evidence issubmitted of changed circumstances, for interim reviews or forinvestigations to determine whether refunds of antidumping duties are
warranted; whereas it is also appropriate to lay down that in any
recalculation of dumping which necessitates a reconstruction of exportprices, duties are not to be treated as a cost incurred between
importation and resale where the said duty is being reflected in the
prices of the products subject to measures in the Community;
(20) Whereas it is necessary to provide specifically for the reassessment of
export prices and dumping margins where the duty is being absorbed by
the exporter through a form of compensatory arrangement and the
measures are not being reflected in the prices of the products subject tomeasures in the Community;
(21) Whereas the 1994 Anti-Dumping Agreement does not contain
provisions regarding the circumvention of anti-dumping measures,though a separate GATT Ministerial Decision recognizes circumventionas a problem and has referred it to the GATT Anti-dumping Committee
for resolution; whereas given the failure of the multilateral negotiations
so far and pending the outcome of the referral to the GATTAnti-Dumping Committee, it is necessary to introduce new provisions
into Community legislation to deal with practices which have as their
main aim the circumvention of anti-dumping measures;
(22) Whereas it is expedient to permit suspension of anti-dumping measures
where there is a temporary change in market conditions which makes
the continued imposition of such measures temporarily inappropriate;
(23) Whereas it is necessary to provide that imports under investigation may
be made subject to registration upon importation in order to enable
measures to be applied subsequently against such imports;
(24) Whereas in order to ensure proper enforcement of measures, it is
necessary that Member States monitor, and report to the Commission,
the import trade of products subject to investigation or subject to
measures, and also the amount of duties collected under this Decision;
(25) Whereas it is necessary to provide for consultation of an Advisory
Committee at regular and specified stages of the investigation; whereas
the Committee should consist of representatives of Member States witha representative of the Commission as chairman;
(26) Whereas it is expedient to provide for verification visits to check
information submitted on dumping and injury, such visits being,however, conditional on proper replies to questionnaires being received;
(27) Whereas it is essential to provide for sampling in cases where the
number of parties or transactions is large in order to permit completion
of investigations within the appointed time-limits;!B1996S2277 — EN — 12.05.1999 — 001.001 — 4
(28) Whereas it is necessary to provide that where parties do not cooperate
satisfactorily other information may be used to establish findings andthat such information may be less favourable to the parties than if theyhad cooperated;
(29) Whereas provision should be made for the treatment of confidential
information so that business secrets are not divulged;
(30) Whereas it is essential that provision be made for proper disclosure of
essential facts and considerations to parties which qualify for suchtreatment and that such disclosure be made, with due regard to the
decision-making process in the Community, within a time period which
permits parties to defend their interests;
(31) Whereas it is prudent to provide for an administrative system under
which arguments can be presented as to whether measures are in the
Community interest, including the consumers’ interest, and to lay downthe time periods within which such information has to be presented aswell as the disclosure rights of the parties concerned;
(32) Whereas, for the reasons given in particular in recitals 3 and 6, it is
appropriate to reformulate the Community provisions concerningprotection against dumped imports from countries not members of the
European Coal and Steel Community; whereas those provisions
contained in Decision 2424/88/ECSC should therefore no longer apply,
HAS ADOPTED THIS DECISION:
Article 1
Principles
1. An anti-dumping duty may be applied to any dumped product whose
release for free circulation in the Community causes injury.
2. A product is to be considered as being dumped if its export price to the
Community is less than a comparable price for the like product, in the
ordinary course of trade, as established for the exporting country.
3. The exporting country shall normally be the country of origin. However,
it may be an intermediate country, except where, for example, the products are
merely transhipped through that country, or the products concerned are not
produced in that country, or there is no comparable price for them in thatcountry.
4. For the purpose of this Decision, the term ‘like product’ shall be
interpreted to mean a product which is identical, that is to say, alike in allrespects, to the product under consideration, or in the absence of such a
product, another product which although not alike in all respects, has
characteristics closely resembling those of the product under consideration.
Article 2
Determination of dumping
A. Normal value
1. The normal value shall normally be based on the prices paid or payable,
in the ordinary course of trade, by independent customers in the exporting
country.
However, where the exporter in the exporting country does not produce or
does not sell the like product, the normal value may be established on the
basis of prices of other sellers or producers.
Prices between parties which appear to be associated or to have a
compensatory arrangement with each other may not be considered to be in
the ordinary course of trade and may not be used to establish normal valueunless it is determined that they are unaffected by the relationship.
2. Sales of the like product intended for domestic consumption shall
normally be used to determine normal value if such sales volume constitutes5 % or more of the sales volume of the product under consideration to the
Community. However, a lower volume of sales may be used when, for
example, the prices charged are considered representative for the marketconcerned.!B1996S2277 — EN — 12.05.1999 — 001.001 — 5
3. When there are no or insufficient sales of the like product in the ordinary
course of trade, or where because of the particular market situation such salesdo not permit a proper comparison, the normal value of the like product shallbe constructed on the basis of the cost of production in the country of origin
plus a reasonable amount for selling, general and administrative costs and for
profits, or on the basis of the export prices, in the ordinary course of trade, toan appropriate third country, provided that those prices are representative.
4. Sales of the like product in the domestic market of the exporting country,
or export sales to a third country, at prices below unit production costs (fixedand variable) plus selling, general and administrative costs may be treated as
not being in the ordinary course of trade by reason of price, and may be
disregarded in determining normal value, only if it is determined that suchsales are made within an extended period of time in substantial quantities, andare at prices which do not provide for the recovery of all costs within a
reasonable period of time.
If prices which are below costs at the time of sale are above weighted average
costs for the period of investigation, such prices shall be considered to provide
for recovery of costs within a reasonable period of time.
The extended period of time referred to in the first subparagraph shall
normally be one year but shall in no case be less than six months, and sales
below unit cost shall be considered to be made in substantial quantities withinsuch a period when it is established that the weighted average selling price isbelow the weighted average unit cost, or that the volume of sales below unit
cost is not less than 20 % of sales being used to determine normal value.
5. Costs shall normally be calculated on the basis of records kept by the
party under investigation, provided that such records are in accordance with
the generally accepted accounting principles of the country concerned and
that it is shown that the records reasonably reflect the costs associated with theproduction and sale of the product under consideration.
Consideration shall be given to evidence submitted on the proper allocation of
costs, provided that it is shown that such allocations have been historicallyutilised. In the absence of a more appropriate method, preference shall be
given to the allocation of costs on the basis of turnover. Unless already
reflected in such cost allocations, costs shall be adjusted appropriately forthose non-recurring items of cost which benefit future and/or currentproduction.
Where the costs for part of the period for cost recovery are affected by the use
of new production facilities requiring substantial additional investment and by
low capacity-utilization rates which are the result of start-up operations taking
place within or during part of the investigation period, the average costs forthe start-up phase shall be those applicable, under the abovementionedallocation rules, at the end of such a phase, and shall be included at that level,
for the period concerned, in the weighted average costs referred to in the
second subparagraph of paragraph 4. The length of a start-up phase shall bedetermined in relation to the circumstances of the producer or exporterconcerned, but shall not exceed an appropriate initial portion of the period for
cost recovery. For this adjustment to costs applicable during the investigation
period, information relating to a start-up phase which extends beyond thatperiod shall be taken into account where it is submitted prior to verification
visits and within three months of initiation of the investigation.
6. The amounts for selling, for general and administrative costs and for
profits shall be based on actual data pertaining to production and sales, in the
ordinary course of trade, of the like product, by the exporter or producer under
investigation. When such amounts cannot be determined on this basis, theamounts may be determined on the basis of:
(a) the weighted average of the actual amounts determined for other
exporters or producers subject to investigation in respect of productionand sales of the like product in the domestic market of the country of
origin;
(b) the actual amounts applicable to production and sales, in the ordinary
course of trade, of the same general category of products for the exporter
or producer in question in the domestic market of the country of origin;
(c) any other reasonable method, provided that the amount for profit so
established shall not exceed the profit normally realized by other
exporters or producers on sales of products of the same general category
in the domestic market of the country of origin.!B1996S2277 — EN — 12.05.1999 — 001.001 — 6
!M1
7 (a) In the case of imports from non-market-economy countries (1),
normal value shall be determined on the basis of the price orconstructed value in a market-economy third country, or the price
from such a third country to other countries, including the
Community, or, where that is not possible, on any other reasonablebasis, including the price actually paid or payable in the Communityfor the like product, duly adjusted if necessary to include a
reasonable profit margin.
An appropriate market-economy third country shall be selected in a
not unreasonable manner, due account being taken of any reliable
information made available at the time of selection. Account shallalso be taken of time limits; where appropriate, a market-economythird country which is subject to the same investigation shall be used.
The parties to the investigation shall be informed shortly after its
initiation of the market-economy third country envisaged and shallbe given 10 days to comment.
(b) In anti-dumping investigations concerning imports from Russia and
the People’ s Republic of China, normal value shall be determined inaccordance with paragraphs 1 to 6, if it is shown, on the basis ofproperly substantiated claims by one or more producers subject to the
investigation and in accordance with the criteria and procedures set
out in subparagraph (c), that market-economy conditions prevail forthis producer or producers in respect of the manufacture and sale ofthe like product concerned. When this is not the case, the rules set
out under subparagraph (a) shall apply.
(c) A claim under subparagraph (b) shall be made in writing and shall
contain sufficient evidence that the producer operates undermarket-economy conditions, that is if:
— decisions of firms regarding prices, costs and inputs, including
for instance raw materials, cost of technology and labour, output,sales and investment, are made in response to market signalsreflecting supply and demand, and without significant State
interference in this regard, and costs of major inputs substan-
tially reflect market values,
— firms have one clear set of basic accounting records which are
independently audited in line with international accounting
standards and are applied for all purposes,
— the production costs and financial situation of firms are not
subject to significant distortions carried over from the formernon-market-economy system, in particular in relation to
depreciation of assets, other write-offs, barter trade and payment
via compensation of debts,
— the firms concerned are subject to bankruptcy and property law
which guarantee legal certainty and stability for the operation offirms, and
— exchange-rate conversions are carried out at the market rate.
A determination whether the producer meets the abovementioned criteria
shall be made within three months of the initiation of the investigation,
after specific consultation of the Advisory Committee and after the
Community industry has been given an opportunity to comment. Thisdetermination shall remain in force throughout the investigation.
B. Export price
8. The export price shall be the price actually paid or payable for the
product when sold for export from the exporting country to the Community.
(1) Including Albania, Armenia, Azerbaijan, Belarus, Georgia, Kazakhstan, North
Korea, Kyrgyzstan, Moldova, Mongolia, Tajikistan, Turkmenistan, Ukraine,
Uzbekistan, Vietnam.!B1996S2277 — EN — 12.05.1999 — 001.001 — 7
9. In cases where there is no export price or where it appears that the export
price is unreliable because of an association or a compensatory arrangementbetween the exporter and the importer of a third party, the export price may beconstructed on the basis of the price at which the imported products are first
resold to an independent buyer or if the products are not resold to an
independent buyer or are not resold in the condition in which they wereimported, on any reasonable basis.
In these cases, adjustment for all costs, including duties and taxes, incurred
between importation and resale, and for profits accruing, shall be made so as
to establish a reliable export price, at the Community frontier level.
The items for which adjustment shall be made shall include those normally
borne by an importer but paid by any party, either inside or outside the
Community, which appears to be associated or to have a compensatory
arrangement with the importer or exporter, including: usual transport,insurance, handling, loading and ancillary costs; customs duties, anyanti-dumping duties, and other taxes payable in the importing country by
reason of the importation or sale of the goods; and a reasonable margin for
selling, general and administrative costs and profit.
C. Comparison
10. A fair comparison shall be made between the export price and the normal
value. This comparison shall be made at the same level of trade and in respect
of sales made at as nearly as possible the same time and with due accounttaken of other differences which affect price comparability. Where the normalvalue and the export price as established are not on such a comparable basis
due allowance, in the form of adjustments, shall be made in each case, on its
merits, for differences in factors which are claimed, and demonstrated, toaffect prices and hence price comparability. Any duplication when making
adjustments shall be avoided, in particular in relation to discounts, rebates,
quantities and level of trade. When the specified conditions are met, thefactors for which adjustment can be made are as follows:
(a)Physical characteristics
An adjustment shall be made for differences in the physical char-
acteristics of the product concerned. The amount of the adjustment shallcorrespond to a reasonable estimate of the market value of the difference.
(b)Import charges and indirect taxes
An adjustment shall be made to normal value for an amount
corresponding to any import charges or indirect taxes borne by the like
product and by materials physically incorporated therein, when intended
for consumption in the exporting country and not collected or refunded inrespect of the product exported to the Community.
(c)Discounts, rebates and quantities
An adjustment shall be made for differences in discounts and rebates,
including those given for differences in quantities, if these are properlyquantified and are directly linked to the sales under consideration. An
adjustment may also be made for deferred discounts and rebates if the
claim is based on consistent practice in earlier periods, includingcompliance with the conditions required to qualify for the discount or
rebates.
(d) Level of trade
(i) An adjustment for differences in levels of trade, including any
differences which may arise in OEM (original equipment manu-facturer) sales, shall be made where, in relation to the distributionchain in both markets, it is shown that the export price, including a
constructed export price, is at a different level of trade from the
normal value and the difference has affected price comparabilitywhich is demonstrated by consistent and distinct differences in
functions and prices of the seller for the different levels of trade in
the domestic market of the exporting country. The amount of theadjustment shall be based on the market value of the difference.
(ii) However, in circumstances not envisaged under (i), when an existing
difference in level of trade cannot be quantified because of the
absence of the relevant levels on the domestic market of theexporting countries, or where certain functions are shown clearly to!M11996S2277 — EN — 12.05.1999 — 001.001 — 8
relate to levels of trade other than the one which is to be used in the
comparison, a special adjustment may be granted.
(e)Transport, insurance, handling, loading, and ancillary costs
An adjustment shall be made for differences in the directly related costs
incurred for conveying the product concerned from the premises of theexporter to an independent buyer, where such costs are included in the
prices charged. Those costs shall include transport, insurance, handling,
loading and ancillary costs.
(f)Packing
An adjustment shall be made for differences in the directly related
packing costs for the product concerned.
(g)Credit
An adjustment shall be made for differences in the cost of any credit
granted for the sales under consideration, provided that it is a factor taken
into account in the determination of the prices charged.
(h)After-sales costs
An adjustment shall be made for differences in the direct costs of
providing warranties, guarantees, technical assistance and services, as
provided for by law and/or in the sales contract.
(i)Commissions
An adjustment shall be made for differences in commissions paid in
respect of the sales under consideration.
(j)Currency conversions
When the price comparison requires a conversion of currencies, such
conversion shall be made using the rate of exchange on the date of sale,
except that when a sale of foreign currency on forward markets is directly
linked to the export sale involved, the rate of exchange in the forward saleshall be used. Normally, the date of sale shall be the date of invoice butthe date of contract, purchase order or order confirmation may be used if
these more appropriately establish the material terms of sale. Fluctuations
in exchange rates shall be ignored and exporters shall be granted 60 daysto reflect a sustained movement in exchange rates during the investigationperiod.
(k) Other factors
An adjustment may also be made for differences in other factors not
provided for under subparagraphs (a) to (j) if it is demonstrated that theyaffect price comparability as required under this paragraph, in particularthat customers consistently pay different prices on the domestic market
because of the difference in such factors.
D. Dumping margin
11. Subject to the relevant provisions governing fair comparison, the
existence of margins of dumping during the investigation period shallnormally be established on the basis of a comparison of a weighted average
normal value with a weighted average of prices of all export transactions to
the Community, or by a comparison of individual normal values andindividual export prices to the Community on a transaction-to-transactionbasis. However, a normal value established on a weighted average basis may
be compared to prices of all individual export transactions to the Community,
if there is a pattern of export prices which differs significantly amongdifferent purchasers, regions or time periods, and if the methods specified inthe first sentence of this paragraph would not reflect the full degree of
dumping being practised. This paragraph shall not preclude the use of
sampling in accordance with Article 17.
12. The dumping margin shall be the amount by which the normal value
exceeds the export price. Where dumping margins vary, a weighted average
dumping margin may be established.!M1
!B
!M1
!B1996S2277 — EN — 12.05.1999 — 001.001 — 9
Article 3
Determination of injury
1. Pursuant to this Decision, the term ‘injury’ shall, unless otherwise
specified, be taken to mean material injury to the Community industry, threat
of material injury to the Community industry or material retardation of the
establishment of such an industry, and shall be interpreted in accordance withthe provisions of this Article.
2. A determination of injury shall be based on positive evidence and shall
involve an objective examination of both (a) the volume of the dumpedimports and the effect of the dumped imports on prices in the Communitymarket for like products, and (b) the consequent impact of those imports on
the Community industry.
3. With regard to the volume of the dumped imports, consideration shall be
given to whether there has been a significant increase in dumped imports,
either in absolute terms or relative to production or consumption in the
Community. With regard to the effect of the dumped imports on prices,consideration shall be given to whether there has been significant priceundercutting by the dumped imports as compared with the price of a like
product of the Community industry, or whether the effect of such imports is
otherwise to depress prices to a significant degree or prevent price increaseswhich would otherwise have occurred, to a significant degree. No one or moreof these factors can necessarily give decisive guidance.
4. Where imports of a product from more than one country are simulta-
neously subject to anti-dumping investigations, the effects of such importsshall be cumulatively assessed only if it is determined that (a) the margin of
dumping established in relation to the imports from each country is more than
de minimis as defined in Article 9 (3) and that the volume of imports from
each country is not negligible and (b) a cumulative assessment of the effects
of the imports is appropriate in light of the conditions of competition between
imported products and the conditions of competition between the importedproducts and the like Community product.
5. The examination of the impact of the dumped imports on the Community
industry concerned shall include an evaluation of all relevant economic
factors and indices having a bearing on the state of the industry, including: thefact that an industry is still in the process of recovering from the effects of past
dumping or subsidization; the magnitude of the actual margin of dumping;
actual and potential decline in sales, profits, output, market share,productivity, return on investments, or utilization of capacity; factorsaffecting Community prices; actual and potential negative effects on cash
flow, stocks, employment, wages, growth, or ability to raise capital or
investments. This list is not exhaustive, nor can any one or more of thesefactors necessarily give decisive guidance.
6. It must be demonstrated, from all the relevant evidence presented in
relation to paragrah 2, that the dumped imports are causing injury within themeaning of this Decision. Specifically, this shall entail a demonstration thatthe volume and/or price levels identified pursuant to paragraph 3 are
responsible for an impact on the Community industry as provided for in
paragraph 5, and that this impact exists to a degree which enables it to beclassified as material.
7. Known factors other than the dumped imports which at the same time are
injuring the Community industry shall also be examined to ensure that injurycaused by these other factors is not attributed to the dumped imports underparagraph 6. Factors which may be considered in this respect include the
volume and prices of imports not sold at dumping prices, contraction in
demand or changes in the patterns of consumption, restrictive trade practicesof, and competition between, third country and Community producers,developments in technology and the export performance and productivity of
the Community industry.
8. The effect of the dumped imports shall be assessed in relation to the
production of the Community industry of the like product when available data
permit the separate identification of that production on the basis of such
criteria as the production process, producers’ sales and profits. If suchseparate identification of that production is not possible, the effects of thedumped imports shall be assessed by examination of the production of the
narrowest group or range of products that includes the like product, for which
the necessary information can be provided.!B1996S2277 — EN — 12.05.1999 — 001.001 — 10
9. A determination of a threat of material injury shall be based on facts and
not merely on allegation, conjecture or remote possibility. The change incircumstances which would create a situation in which the dumping wouldcause injury must be clearly foreseen and imminent.
In making a determination regarding the existence of a threat of material
injury, consideration should be given to inter alia such factors as:
(a) a significant rate of increase of dumped imports into the Community
market indicating the likelihood of substantially increased imports;
(b) sufficient freely disposable capacity of the exporter or an imminent
substantial increase in such capacity indicating the likelihood of
substantially increased dumped exports to the Community, account being
taken of the availability of other export markets to absorb any additionalexports;
(c) whether imports are entering at prices that would, to a significant degree,
depress prices or prevent price increases which otherwise would have
occurred, and would probably increase demand for further imports; and
(d) stock-levels of the product being investigated.No one of the factors listed above by itself can necessarily give decisive
guidance, but the totality of the factors considered must lead to the conlcusionthat further dumped exports are imminent and that, unless protective action istaken, material injury will occur.
Article 4
Definition of ‘Community industry’
1. For the purposes of this Decision, the term ‘Community industry’shall be
interpreted as referring to the Community producers, as a whole, of the likeproducts or to those of them whose collective output of the products
constitutes a major proportion, as defined in Article 5 (4), of the total
Community production of those products, except that:
(a) when producers are related to the exporters or importers or are
themselves importers of the allegedly dumped product, the term‘Community industry’ may be interpreted as referring to the rest of the
producers;
(b) in exceptional circumstances the territory of the Community may, for the
production in question, be divided into two or more competitive marketsand the producers within each market may be regarded as a separate
industry if (i) the producers within such a market sell all or almost all of
their production of the product in question in that market, and (ii) thedemand in that market is not to any substantial degree met by producersof the product in question located elsewhere in the Community. In such
circumstances, injury may be found to exist even where a major portion
of the total Community industry is not injured, provided that there is aconcentration of dumped imports into such an isolated market andprovided further that the dumped imports are causing injury to the
producers of all or almost all of the production within such market.
2. For the purpose of paragraph 1, producers shall be considered to be
related to exporters or importers only if (a) one of them directly or indirectlycontrols the other, or (b) both of them are directly or indirectly controlled by a
third person, or (c) together they directly or indirectly control a third person,
provided that there are grounds for believing or suspecting that the effect ofthe relationship is such as to cause the producer concerned to behavedifferently from non-related producers. For the purpose of this paragraph, one
shall be deemed to control another when the former is legally or operationally
in a position to exercise restraint or direction over the latter.
3. Where the Community industry has been interpreted as referring to the
producers in a certain region, the exporters shall be given an opportunity tooffer undertakings pursuant to Article 8 in respect of the region concerned. In
such cases, when evaluating the Community interest of the measures, special
account shall be taken of the interest of the region. If an adequate undertakingis not offered promptly or the situations set out in Article 8 (9) and (10) apply,
a provisional or definitive duty may be imposed in respect of the Community
as a whole. In such cases, the duties may, if practicable, be limited to specificproducers or exporters.
4. The provisions of Article 3 (8) shall be applicable to this Article.!B1996S2277 — EN — 12.05.1999 — 001.001 — 11
Article 5
Initiation of proceedings
1. Except as provided for in paragraph 6, an investigation to determine the
existence, degree and effect of any alleged dumping shall be initiated upon awritten complaint by any natural or legal person, or any association not having
legal personality, acting on behalf of the Community industry.
The complaint may be submitted to the Commission, or to a Member State,
which shall forward it to the Commission. The Commission shall sendMember States a copy of any complaint it receives. The complaint shall be
deemed to have been lodged on the first working day following its delivery to
the Commission by registered mail or following the issuing of an acknowl-egement of receipt by the Commission.
Where, in the absence of any complaint, a Member State is in possession of
sufficient evidence of dumping and of resultant injury to the Community
industry, it shall immediately communicate such evidence to the Commission.
2. A complaint under paragraph 1 shall include evidence of dumping, injury
and a causal link between the allegedly dumped imports and the alleged
injury. The complaint shall contain such information as is reasonably
available to the complainant on the following:
(a) identity of the complainant and a description of the volume and value of
the Community production of the like product by the complainant. Where
a written complaint is made on behalf of the Community industry, the
complaint shall identify the industry on behalf of which the complaint ismade by a list of all known Community producers of the like product (or
associations of Community producers of the like product) and, to the
extent possible, a description of the volume and value of Communityproduction of the like product accounted for by such producers;
(b) a complete description of the allegedly dumped product, the names of the
country or countries of origin or export in question, the identity of each
known exporter or foreign producer, and a list of known personsimporting the product in question;
(c) information on prices at which the product in question is sold when
destined for consumption in the domestic markets of the country or
countries of origin or export (or, where appropriate, information on theprices at which the product is sold from the country or countries of originor export to a third country or countries or on the constructed value of the
product) and information on export prices or, where appropriate, on the
prices at which the product is first resold to an independent buyer in theCommunity;
(d) information on changes in the volume of the allegedly dumped imports,
the effect of those imports on prices of the like product on the
Community market and the consequent impact of the imports on theCommunity industry, as demonstrated by relevant factors and indiceshaving a bearing on the state of the Community industry, such as those
listed in Article 3 (3) and (5).
3. The Commission shall, as far as possible, examine the accuracy and
adequacy of the evidence provided in the complaint to determine whether
there is sufficient evidence to justify the initiation of an investigation.
4. An investigation shall not be initiated pursuant to paragraph 1 unless it
has been determined, on the basis of an examination as to the degree ofsupport for, or opposition to, the complaint expressed by Community
producers of the like product, that the complaint has been made by or on
behalf of the Community industry. The complaint shall be considered to havebeen made by or on behalf of the Community industry if it is supported bythose Community producers whose collective output constitutes more than
50 % of the total production of the like product produced by that portion of
the Community industry expressing either support for or opposition to thecomplaint. However, no investigation shall be initiated when Communityproducers expressly supporting the complaint account for less than 25 % of
total production of the like product produced by the Community industry.
5. The authorities shall, unless a decision has been made to initiate an
investigation, avoid publishing the complaint seeking the initiation of aninvestigation. However, after receipt of a properly documented complaint and
before proceeding to initiate an investigation, the government of the exporting
country concerned shall be notified.!B1996S2277 — EN — 12.05.1999 — 001.001 — 12
6. If in special circumstances, it is decided to initiate an investigation
without having received a written complaint by or on behalf of theCommunity industry for the initiation of such investigation, this shall bedone on the basis of sufficient evidence of dumping, injury and a causal link,
as described in paragraph 2, to justify such initiation.
7. The evidence of both dumping and injury shall be considered simulta-
neously in the decision as to whether or not to initiate an investigation. A
complaint shall be rejected where there is insufficient evidence of eitherdumping or of injury to justify proceeding with the case. Proceedings shallnot be initiated against countries whose imports represent a market share of
below 1 %, unless such countries collectively account for 3 % or more of
Community consumption.
8. The complaint may be withdrawn prior to initiation, in which case it shall
be considered not to have been lodged.
9. Where, after consultation, it is apparent that there is sufficient evidence to
justify initiating a proceeding, the Commission shall do so within 45 days ofthe lodging of the complaint and shall publish a notice in the Official Journal
of the European Communities. Where insufficient evidence has been
presented, the complainant shall, after consultation, be so informed within45 days of the date on which the complaint is lodged with the Commission.
10. The notice of initiation of the proceedings shall announce the initiation of
an investigation, indicate the product and countries concerned, give asummary of the information received, and provide that all relevant
information is to be communicated to the Commission; it shall state the
periods within which interested parties may make themselves known, presenttheir views in writing and submit information if such views and informationare to be taken into account during the investigation; it shall also state the
period within which interested parties may apply to be heard by the
Commission in accordance with Article 6 (5).
11. The Commission shall advise the exporters, importers and representative
associations of importers or exporters known by it to be concerned, as well asrepresentatives of the exporting country and the complainants, of the initiationof the proceedings and shall, with due regard to the protection of confidential
information, supply the full text of the written complaint received pursuant to
paragraph 1 to the known exporters and to the authorities of the exportingcountry, and make it available upon request to other interested parties
involved. Where the number of exporters involved is particularly high, the full
text of the written complaint may instead be supplied only to the authorities ofthe exporting country or to the relevant trade association.
12. An anti-dumping investigation shall not hinder the procedures for
customs clearance.
Article 6
The investigation
1. Following the initiation of the proceeding, the Commission, acting in
cooperation with the Member States, shall commence an investigation at
Community level. Such investigation shall cover both dumping and injury andthese shall be investigated simultaneously. For the purpose of a representative
finding, an investigation period shall be selected which, in the case of
dumping shall, normally, cover a period of not less than six monthsimmediately prior to the initiation of the proceeding. Information relating to aperiod subsequent to the investigation period shall, normally, not be taken into
account.
2. Parties receiving questionnaires used in an anti-dumping investigation
shall be allowed at least 30 days to reply. The time-limit for exporters shall be
counted from the date of receipt of the questionnaire, which for this purposeshall be deemed to have been received one week from the day on which it wassent to the exporter or transmitted to the appropriate diplomatic representative
of the exporting country. An extension to the 30 day period may be granted,
due account being taken of the time-limits of the investigation, provided thatthe party shows due cause for such extension, in terms of its particularcircumstances.
3. The Commission may request Member States to supply information, and
Member States shall take whatever steps are necessary in order to give effect
to such requests. They shall send to the Commission the information
requested together with the results of all inspections, checks or investigations!B1996S2277 — EN — 12.05.1999 — 001.001 — 13
carried out. Where this information is of general interest or where its
transmission has been requested by a Member State, the Commission shallforward it to the Member States, provided it is not confidential, in which casea non-confidential summary shall be forwarded.
4. The Commission may request Member States to carry out all necessary
checks and inspections, particularly amongst importers, traders and
Community producers, and to carry out investigations in third countries,
provided that the firms concerned give their consent and that the governmentof the country in question has been officially notified and raises no objection.Member States shall take whatever steps are necessary in order to give effect
to such requests from the Commission. Officials of the Commission shall be
authorized, if the Commission or a Member State so requests, to assist theofficials of Member States in carrying out their duties.
5. The interested parties which have made themselves known in accordance
with Article 5 (10) shall be heard if they have, within the period prescribed in
the notice published in the Official Journal of the European Communities ,
made a written request for a hearing showing that they are an interested partylikely to be affected by the result of the proceeding and that there areparticular reasons why they should be heard.
6. Opportunities shall, on request, be provided for the importers, exporters,
representatives of the government of the exporting country and the
complainants which have made themselves known in accordance with Article
5 (10), to meet those parties with adverse interests, so that opposing viewsmay be presented and rebuttal arguments offered. Provision of suchopportunities must take account of the need to preserve confidentiality and
of the convenience to the parties. There shall be no obligation on any party to
attend a meeting, and failure to do so shall not be prejudicial to that party’ scase. Oral information provided under this paragraph shall be taken into
account in so far as it is subsequently confirmed in writing.
7. The complainants, importers and exporters and their representative
associations, users and consumer organizations, which have made themselves
known in accordance with Article 5 (10), as well as the representatives of theexporting country may, upon written request, inspect all information madeavailable by any party to an investigation, as distinct from internal documents
prepared by the authorities of the Community or its Member States, which is
relevant to the presentation of their cases and not confidential within themeaning of Article 19, and that is used in the investigation. Such parties mayrespond to such information and their comments shall be taken into
consideration, wherever they are sufficiently substantiated in the response.
8. Except in the circumstances provided for in Article 18, the information
which is supplied by interested parties and upon which findings are based
shall be examined for accuracy as far as possible.
9. For proceedings initiated pursuant to Article 5 (9), an investigation shall,
whenever possible, be concluded within one year. In any event, suchinvestigations shall in all cases be concluded within 15 months of initiation, in
accordance with the findings made pursuant to Articles 8 and 9.
Article 7
Provisional measures
1. Provisional duties may be imposed if proceedings have been initiated in
accordance with Article 5, if a notice has been given to that effect and
interested parties have been given adequate opportunities to submit
information and make comments in accordance with Article 5 (10), if aprovisional affirmative determination has been made of dumping andconsequent injury to the Community industry, and if the Community interest
calls for intervention to prevent such injury. The provisional duties shall be
imposed no earlier than 60 days from the initiation of the proceedings but notlater than nine months from the initiation of the proceedings.
2. The amount of the provisional anti-dumping duty shall not exceed the
margin of dumping as provisionally established, but it shall be less than themargin if such lesser duty would be adequate to remove the injury to the
Community industry.
3. Provisional duties shall be secured by a guarantee, and the release of the
products concerned for free circulation in the Community shall be conditional
upon the provision of such guarantee.!B1996S2277 — EN — 12.05.1999 — 001.001 — 14
4. The Commission shall take provisional action after consultation or, in
cases of extreme urgency, after informing the Member States. In this lattercase, consultations shall take place ten days, at the latest, after notification tothe Member States of the action taken by the Commission.
5. Where a Member State requests immediate intervention by the
Commission and where the conditions in paragraph 1 are met, theCommission shall, within a maximum of five working days of receipt of
the request, decide whether a provisional anti-dumping duty shall be imposed.
6. The Commission shall forthwith inform the Member States of any
decision taken under paragraphs 1 to 5.
7. Provisional duties may be imposed for six months and extended for a
further three months or they may be imposed for nine months. However, theymay only be extended, or imposed for a nine month period, where exporters
representing a significant proportion of the trade involved so request or do not
object upon notification by the Commission.
Article 8
Undertakings
1. Investigations may be terminated without the imposition of provisional or
definitive duties upon receipt of satisfactory voluntary undertakings from any
exporter to revise its prices or to cease exports to the area in question atdumped prices, so that the Commission, after consultation, is satisfied that the
injurious effect of the dumping is eliminated. Price increases under such
undertakings shall not be higher than necessary to eliminate the margin ofdumping and they shall be less than the margin of dumping if such increaseswould be adequate to remove the injury to the Community industry.
2. Undertakings may be suggested by the Commission, but no exporter shall
be obliged to enter into such an undertaking. The fact that exporters do notoffer such undertakings, or do not accept an invitation to do so, shall in no
way prejudice consideration of the case. However, it may be determined that a
threat of injury is more likely to materialize if the dumped imports continue.Undertakings shall not be sought or accepted from exporters unless aprovisional affirmative determination of dumping and injury caused by such
dumping has been made. Save in exceptional circumstances, undertakings
may not be offered later than the end of the period during whichrepresentations may be made pursuant to Article 20 (5).
3. Undertakings offered need not be accepted if their acceptance is
considered impractical, such as where the number of actual or potentialexporters is too great, or for other reasons, including reasons of generalpolicy. The exporter concerned may be provided with the reasons for which it
is proposed to reject the offer of an undertaking and may be given an
opportunity to make comments thereon. The reasons for rejection shall be setout in the definitive decision.
4. Parties which offer an undertaking shall be required to provide a
non-confidential version of such undertaking, so that it may be made availableto interested parties to the investigation.
5. Where undertakings are, after consultation, accepted, the investigation
shall be terminated by the Commission.
6. If the undertakings are accepted, the investigation of dumping and injury
shall normally be completed. In such a case, if a negative determination of
dumping or injury is made, the undertaking shall automatically lapse, exceptin cases where such a determination is due in large part to the existence of anundertaking. In such cases it may be required that an undertaking be
maintained for a reasonable period. In the event that an affirmative
determination of dumping and injury is made, the undertaking shall continue,consistently with its terms and the provisions of this Decision.
7. The Commission shall require any exporter from which an undertaking
has been accepted to provide, periodically, information relevant to thefulfilment of such undertaking, and to permit verification of pertinent data.
Non-compliance with such requirements shall be construed as a breach of the
undertaking.
8. Where undertakings are accepted from certain exporters during the
course of an investigation, they shall, for the purpose of Article 11, be deemed
to take effect from the date on which the investigation is concluded for theexporting country.!B1996S2277 — EN — 12.05.1999 — 001.001 — 15
9. In case of breach or withdrawal of undertakings by any party, a definitive
duty shall be imposed in accordance with Article 9, on the basis of the factsestablished within the context of the investigation which led to theundertaking, provided that such investigation was concluded with a final
determination as to dumping and injury and that the exporter concerned has,
except where he himself has withdrawn the undertaking, been given anopportunity to comment.
10. A provisional duty may, after consultation, be imposed in accordance
with Article 7 on the basis of the best information available, where there is
reason to believe that an undertaking is being breached, or in case of breach or
withdrawal of an undertaking where the investigation which led to theundertaking has not been concluded.
Article 9
Termination without measures; imposition of definitive duties
1. Where the complaint is withdrawn, the proceeding may be terminated
unless such termination would not be in the Community interest.
2. Where, after consultation, protective measures are unnecessary, the
investigation or proceeding shall be terminated by the Commission.
3. For a proceeding initiated pursuant to Article 5 (9), injury shall normally
be regarded as negligible where the imports concerned represent less than the
volumes set out in Article 5 (7). For the same proceeding, there shall beimmediate termination where it is determined that the margin of dumping is
less than 2 %, expressed as a percentage of the export price, provided always
that it is only the investigation that shall be terminated where the margin isbelow 2 % for individual exporters and they shall remain subject to theproceeding and may be re-investigated in any subsequent review carried out
for the country concerned pursuant to Article 11.
4. Where the facts as finally established show that there is dumping and
injury caused thereby, and the Community interest calls for intervention inaccordance with Article 21, a definitive anti-dumping duty shall be imposedby the Commission, after consultation of the Advisory Committee. The
amount of the anti-dumping duty shall not exceed the margin of dumping
established but it should be less than the margin if such lesser duty would beadequate to remove the injury to the Community industry.
5. An anti-dumping duty shall be imposed in the appropriate amounts in
each case, on a non-discriminatory basis on imports of a product from all
sources found to be dumped and causing injury, except as to imports from
those sources from which undertakings under the terms of this Decision havebeen accepted. The decision imposing the duty shall specify the duty for eachsupplier or, if that is impracticable, and as a general rule in the cases referred
to in Article 2 (7), the supplying country concerned.
6. When the Commission has limited its examination in accordance with
Article 17, any anti-dumping duty applied to imports from exporters orproducers which have made themselves known in accordance with Article 17but were not included in the examination shall not exceed the weighted
average margin of dumping established for the parties in the sample. For the
purpose of this paragraph, the Commission shall disregard any zero and de
minimis margins, and margins established in the circumstances referred to in
Article 18. Individual duties shall be applied to imports from any exporter or
producer which is granted individual treatment, as provided for in Article 17.
Article 10
Retroactivity
1. Provisional measures and definitive anti-dumping duties shall only be
applied to products which enter free circulation after the time when thedecision taken pursuant to Articles 7 (1) or 9 (4), as the case may be, entersinto force, subject to the exceptions set out in this Decision.
2. Where a provisional duty has been applied and the facts as finally
established show that there is dumping and injury, the Commission shall
decide, irrespective of whether a definitive anti-dumping duty is to beimposed, what proportion of the provisional duty is to be definitivelycollected. For this purpose, ‘injury’ shall not include material retardation of
the establishment of a Community industry, nor threat of material injury,
except where it is found that this would, in the absence of provisional!B1996S2277 — EN — 12.05.1999 — 001.001 — 16
measures, have developed into material injury. In all other cases involving
such threat or retardation, any provisional amounts shall be released anddefinitive duties can only be imposed from the date that a final determinationof threat or material retardation is made.
3. If the definitive anti-dumping duty is higher than the provisional duty, the
difference shall not be collected. If the definitive duty is lower than theprovisional duty, the duty shall be recalculated. Where a final determination is
negative, the provisional duty shall not be confirmed.
4. A definitive anti-dumping duty may be levied on products which were
entered for consumption not more than 90 days prior to the date of applicationof provisional measures but not prior to the initiation of the investigation,
provided that imports have been registered in accordance with Article 14 (5),
the Commission has allowed the importers concerned an opportunity tocomment, and:
(a) there is, for the product in question, a history of dumping over an
extended period, or the importer was aware of, or should have been aware
of, the dumping as regards the extent of the dumping and injury allegedor found; and
(b) in addition to the level of imports which caused injury during the
investigation period, there is a further substantial rise in imports which, inthe light of its timing and volume and other circumstances, is likely toseriously undermine the remedial effect of the definitive anti-dumping
duty to be applied.
5. In cases of breach or withdrawal of undertakings, definitive duties may be
levied on goods entered for free circulation not more than 90 days before the
application of provisional measures, provided that imports have been
registered in accordance with Article 14 (5), and that any such retroactiveassessment shall not apply to imports entered before the breach or withdrawalof the undertaking.
Article 11
Duration, reviews and refunds
1. An anti-dumping measure shall remain in force only as long as, and to the
extent that, it is necessary to counteract the dumping which is causing injury.
2. A definitive anti-dumping measure shall expire five years from its
imposition or five years from the date of the conclusion of the most recent
reveiw which has covered both dumping and injury, unless it is determined in
a review that the expiry would be likely to lead to a continuation or recurenceof dumping and injury. Such an expiry review shall be initiated on the intiativeof the Commission, or upon request made by or on behalf of Community
producers, and the measure shall remain in force pending the outcome of such
review.
An expiry review shall be initiated where the request contains sufficient
evidence that the expiry of the measures would be likely to result in a
continuation or recurrence of dumping and injury. Such a likelihood may, forexample, be indicated by evidence of continued dumping and injury orevidence that the removal of injury is partly or solely due to the existence of
measures or evidence that the circumstances of the exporters, or market
conditions, are such that they would indicate the likelihood of furtherinjurious dumping.
In carrying out investigations under this paragraph, the exporters, importers,
the representatives of the exporting country and the Community producers
shall be provided with the opportunity to amplify, rebut or comment on thematters set out in the review request, and conclusions shall be reached with
due account taken of all relevant and duly documented evidence presented in
relation to the question as to whether the expiry of measures would be likely,or unlikely, to lead to the continuation or recurrence of dumping and injury.
A notice of impending expiry shall be published in the Official Journal of the
European Communities at an appropriate time in the final year of the period
of application of the measures as defined in this paragraph. Thereafter, theCommunity producers shall, no later than three months before the end of the
five year period, be entitled to lodge a review request in accordance with the
second subparagraph. A notice announcing the actual expiry of measurespursuant to this paragraph shall also be published.!B1996S2277 — EN — 12.05.1999 — 001.001 — 17
3. The need for the continued imposition of measures may also be reviewed,
where warranted, on the initiative of the Commission or at the request of aMember State or, provided that a reasonable period of time of at least one yearhas elapsed since the imposition of the definitive measure, upon a request by
any exporter or importer or by the Community producers which contains
sufficient evidence substantiating the need for such an interim review.
An interim review shall be intiated where the request contains sufficient
evidence that the continued imposition of the measure is no longer necessary
to offset dumping and/or that the injury would be unlikely to continue or recurif the measure were removed or varied, or that the existing measure is not, oris no longer, sufficient to counteract the dumping which is causing injury.
In carrying out investigations pursuant to this paragraph, the Commission
may, inter alia , consider whether the circumstances with regard to dumping
and injury have changed significantly, or whether existing measures are
achieving the intended results in removing the injury previously established
under Article 3. In these respects, account shall be taken in the finaldetermination of all relevant and duly documented evidence.
4. A review shall also be carried out for the purpose of determining
individual margins of dumping for new exporters in the exporting country inquestion which have not exported the product during the period ofinvestigation on which the measures were based.
The review shall be initiated where a new exporter or producer can show that
it is not related to any of the exporters or producers in the exporting countrywhich are subject to the anti-dumping measures on the product, and that it has
actually exported to the Community following the abovementioned
investigation period, or where it can demonstrate it has entered into a anirrevocable contractual obligation to export a significant quantity to theCommunity.
A review for a new exporter shall be initiated, and carried out on an
accelerated basis, after consultation of the Advisory Committee and afterCommunity producers have been given an opportunity to comment. The
Commission decision initiating a review shall repeal the duty in force with
regard to the new exporter concerned by amending the Decision which hasimposed such duty, and by making imports subject to registration inaccordance with Article 14 (5) in order to ensure that, should the review result
in a determination of dumping in respect of such an exporter, anti-dumping
duties can be levied retroactively to the date of the initiation of the review.
The provisions of this paragraph shall not apply where duties have been
imposed under Article 9 (6).
5. The relevant provisions of this Decision with regard to procedures and the
conduct of investigations, excluding those relating to time-limits, shall apply
to any review carried out pursuant to paragraphs 2, 3 and 4. Any such review
shall be carried out expeditiously and shall normally be concluded within 12months of the date of initiation of the review.
6. Reviews pursuant to this Article shall be initiated by the Commission
after consultation of the Advisory Committee. Where warranted by reviews,
measures shall be repealed or maintained pursuant to paragraph 2, orrepealed, maintained or amended pursuant to paragraphs 3 and 4. Where
measures are repealed for individual exporters, but not for the country as a
whole, such exporters shall remain subject to the proceeding and may,automatically, be re-investigated in any subsequent review carried out for thatcountry pursuant to this Article.
7. Where a review of measures pursuant to paragraph 3 is in progress at the
end of the period of application of measures as defined in paragraph 2, suchreview shall also cover the circumstances set out in paragraph 2.
8. Notwithstanding paragraph 2, an importer may request reimbursement of
duties collected where it is shown that the dumping margin, on the basis ofwhich duties were paid, has been eliminated, or reduced to a level which is
below the level of the duty in force.
In requesting a refund of anti-dumping duties, the importer shall submit an
application to the Commission. The application shall be submitted via theMember State of the territory in which the products were released for free
circulation, and within six months of the date on which the amount of the
definitive duties to be levied was duly determined by the competent!B1996S2277 — EN — 12.05.1999 — 001.001 — 18
authorities or of the date on which a decision was made definitively to collect
the amounts secured by way of provisional duty. Member States shall forwardthe request to the Commission forthwith.
An application for refund shall only be considered to be duly supported by
evidence where it contains precise information on the amount of refund of
anti-dumping duties claimed and all customs documentation relating to thecalculation and payment of such amount. It shall also include evidence, for a
representative period, of normal values and export prices to the Community
for the exporter or producer to which the duty applies. In cases where theimporter is not associated with the exporter or producer concerned and suchinformation is not immediately available, or where the exporter or producer is
unwilling to release it to the importer, the application shall contain a
statement from the exporter or producer that the dumping margin has beenreduced or eliminated, as specified in this Article, and that the relevantsupporting evidence will be supplied to the Commission. Where such
evidence is not forthcoming from the exporter or producer within a reasonable
period of time the application shall be rejected.
The Commission shall, after consultation of the Advisory Committee, decide
whether and to what extent the application should be granted, or it may decide
at any time to initiate an interim review, whereupon the information andfindings from such review carried out in accordance with the provisionsapplicable for such reviews, shall be used to determine whether and to what
extent a refund is justified. Refunds of duties shall normally take place within
12 months, and in no circumstances more than 18 months after the date onwhich a request for a refund, duly supported by evidence, has been made by an
importer of the product subject to the anti-dumping duty. The payment of any
refund authorized should normally be made by Member States within 90 daysof the abovementioned decision.
9. In all review or refund investigations carried out pursuant to this Article,
the Commission shall, provided that circumstances have not changed, apply
the same methodology as in the investigation which led to the duty, with dueaccount being taken of Article 2, and in particular paragraphs 11 and 12
therof, and of Article 17.
10. In any investigation carried out pursuant to this Article, the Commission
shall examine the reliability of export prices in accordance with Article 2.However, where it is decided to construct the export price in accordance with
Article 2 (9), it shall calculate it with no deduction for the amount of
anti-dumping duties paid when conclusive evidence is provided that the dutyis duly reflected is resale prices and the subsequent selling prices in the
Community.
Article 12
1. Where the Community industry submits sufficient information showing
that measures have led to no movement, or insufficient movement, in resale
prices or subsequent selling prices in the Community, the investigation may,after consultation, be reopened to examine whether the measure has had
effects on the abovementioned prices.
2. During a re-investigation prusuant to this Article, exporters, importers
and Community producers shall be provided with an opportunity to clarify thesituation with regard to resale prices and subsequent selling prices; if it is
concluded that the measure should have led to movements in such prices,
then, in order to remove the injury previously established in accordance withArticle 3, export prices shall be reassessed in accordance with Article 2 and
dumping margins shall be recalculated to take account of the reassessed
export prices. Where it is considered that a lack of movement in the prices inthe Community is due to a fall in export prices which has occured prior to orfollowing the imposition of measures, dumping margins may be recalculated
to take acount of such lower export prices.
3. Where a re-investigation pursuant to this Article shows increased
dumping the measures in force shall, after consultation of the Advisory
Committee, be amended by the Commission, in accordance with the new
findings on export prices.
4. The relevant provisions of Article 5 and 6 shall apply to any review
carried out pursuant to this Article, except that such review shall be carried
out expeditiously and shall normally be concluded within six months of the
date of initiation of the re-investigation.!B1996S2277 — EN — 12.05.1999 — 001.001 — 19
5. Alleged changes in normal value shall only be taken into account under
this Article where complete information on revised normal values, dulysubstantiated by evidence, is made available to the Commission within thetime-limits set out in the notice of initiation of an investigation. Where an
investigation involves a re-examination of normal values, imports may be
made subject to registration in accordance with Article 14 (5) pending theoutcome of the re-investigation.
Article 13
Circumvention
1. Anti-dumping duties imposed pursuant to this Decision may be extended
to imports from third countries of like products, or parts thereof, whencircumvention of the measure in force is taking place. Circumvention shall be
defined as a change in the pattern of trade between third countries and the
Community which stems from a pratice, process or work for which there isinsufficient due cause or economic justification other than the imposition ofthe duty, and where there is evidence that the remedial effects of the duty are
being undermined in terms of the prices and/or quantities of the like products
and there is evidence of dumping in relation to the normal values previouslyestablished for the like or similar products.
2. Investigations shall be initiated pursuant to this Article where the request
contains sufficient evidence regarding the factors set out in paragraph 1.Initiations shall be made, after consultation of the Advisory Committee, byCommission Decision which shall also instruct the customs authorities to
make imports subject to registration in accordance with Article 14 (5) or to
request guarantees. Investigations shall be carried out by the Commision,which may be assisted by customs authorities and shall be concluded withinnine months. When the facts as finally ascertained justify the extension of
measures, this shall be done by the Commission, after consultation of the
Advisory Committee, from the date on which registration was imposedpursuant to Article 14 (5) or on which guarantees were requested. The
relevant procedural provisions of this Decision with regard to initiations and
the conduct of investigations shall apply pursuant to this Article.
3. Products shall not be subject to registration pursuant to Article 14 (5) or
measures where they are accompanied by a customs certificate declaring that
the importation of the goods does not constitute circumvention. Thesecertificates may be issued to importers, upon written application followingauthorization by decision of the Commission and they shall remain valid for
the period, and under the conditions, set down therein.
4. Nothing in this Article shall preclude the normal application of the
provisions in force concerning customs duties.
Article 14
General provisions
1. Provisional or definitive anti-dumping duties shall be imposed by a
Commission Decision, and collected by Member States in the form and at therate specified and according to the other criteria laid down in the Decision
imposing such duties. Such duties shall also be collected independently of the
customs duties, taxes and other charges normally imposed on imports. Noproduct shall be subject to both anti-dumping and countervailing duties forthe purpose of dealing with one and the same situation arising from dumping
or from export subsidization.
2. Decisions imposing provisional or definitive anti-dumping duties, and
Decisions accepting undertakings or terminating investigations or proceed-
ings, shall be published in the Official Journal of the European Communities .
Such Decisions shall contain in particular, due regard being had to theprotection of confidential information, the names of the exporters, if possible,
or of the countries involved, a description of the product and a summary of the
material facts and considerations relevant to the dumping and injurydeterminations. In each case, a copy of the Decision shall be sent to knowninterested parties. The provisions of this paragraph shall apply mutatis
mutandis to reviews.!B1996S2277 — EN — 12.05.1999 — 001.001 — 20
3. Special provisions, in particular with regard to the common definition of
the concept of origin as contained in Council Regulation (EEC) No2913/92 (
1), may be adopted pursuant to this Decision.
4. In the Community interest, measures imposed pursuant to this Decision
may, after consultation of the Advisory Committee, be suspended by a
decision of the Commission for a period of nine months. The suspension maybe extended for a further period, not exceeding one year, if the Commissionafter consultation so decides. Measures may only be suspended where market
conditions have temporarily changed to such an extent that injury would be
unlikely to resume as a result of the suspension, and provided that theCommunity industry has been given an opportunity to comment and these
comments have been taken into account. Measures may, at any time and after
consultation, be reinstated if the reason for suspension is no longer applicable.
5. The Commission may, after consulting the Advisory Committee, direct
the customs authorities to take the appropriate steps to register imports, so
that measures may subsequently be applied against those imports from the
date of such registration. Imports may be made subject to registrationfollowing a request from the Community industry which contains sufficientevidence to justify such action. Registration shall be introduced by a
Commission Decision which shall specify the purpose of the action and, if
appropriate, the estimated amount of possible future liability. Imports shallnot be made subject to registration for a period longer than nine months.
6. Member States shall report to the Commission every month, on the
import trade in products subject to investigation and to measures, and on theamount of duties collected pursuant to this Decision.
Article 15
Consultations
1. Any consultations provided for in this Decision shall take place within an
Advisory Committee, which shall consist of representatives of each Member
State, with a representative of the Commission as chairman. Consultationsshall be held immediately on request of a Member State or on the initiative ofthe Commission and in any event within a period of time which allows the
time-limits set by this Decision to be adhered to.
2. The Committee shall meet when convened by its chairman. He shall
provide the Member States, as promptly as possible, with all relevantinformation.
3. Where necessary, consultation may be in writing only; in that event, the
Commission shall notify the Member States and shall specify a period withinwhich they shall be entitled to express their opinions or to request an oral
consultation which the chairman shall arrange, provided that such oral
consultation can be held within a period of time which allows the time-limitsset by this Decision to be adhered to.
4. Consultation shall cover, in particular:
(a) the existence of dumping and the methods of establishing the dumping
margin;
(b) the existence and extent of injury;
(c) the causal link between the dumped imports and injury;
(d) the measures which, in the circumstances, are appropriate to prevent or
remedy the injury caused by dumping and the ways and means of puttingsuch measures into effect.
Article 16
V erification visits
1. The Commission shall, where it considers it appropriate, carry out visits
to examine the records of importers, exporters, traders, agents, producers,trade associations and organizations, to verify information provided ondumping and injury. In the absence of a proper and timely reply, a verification
visit may not be carried out.!B
(1) OJ No L 302, 19. 10. 1992, p. 1.1996S2277 — EN — 12.05.1999 — 001.001 — 21
2. The Commission may carry out investigations in third countries as
required, provided it obtains the agreement of the firms concerned, that itnotifies the representatives of the government of the country in question andthat the latter does not object to the investigation. As soon as the agreement of
the firms concerned has been obtained the Commission should notify the
authorities of the exporting country of the names and addresses of the firms tobe visited and the dates agreed.
3. The firms concerned shall be advised of the nature of the information to
be verified during verification visits and of any further information which
needs to be provided during such visits, though this should not preclude
requests made during the verification for further details to be provided in thelight of information obtained.
4. In investigations carried out pursuant to paragraphs 1, 2 and 3, the
Commission shall be assisted by officials of those Member States who so
request.
Article 17
Sampling
1. In cases where the number of complainants, exporters or importers, types
of product or transactions is large, the investigation may be limited to a
reasonable number of parties, products or transactions by using sampleswhich are statistically valid on the basis of information available at the time ofthe selection, or to the largest representative volume of production, sales or
exports which can reasonably be investigated within the time available.
2. The final selection of parties, types of products or transactions made
under these sampling provisions shall rest with the Commission, thoughpreference shall be given to choosing a sample in consultation with, and withthe consent of, the parties concerned, provided such parties make themselves
known and make sufficient information available, within three weeks of
initiation of the investigation, to enable a representative sample to be chosen.
3. In cases where the examination has been limited in accordance with this
Article, an individual margin of dumping shall, nevertheless, be calculated forany exporter or producer not initially selected who submits the necessary
information within the time-limits provided for in this Decision, except where
the number of exporters or producers is so large that individual examinationswould be unduly burdensome and would prevent completion of theinvestigation in good time.
4. Where it is decided to sample and there is a degree of non-cooperation by
some or all of the parties selected which is likely materially to affect the
outcome of the investigation, a new sample may be selected. However, if amaterial degree of non-cooperation persists or there is insufficient time toselect a new sample, the relevant provisions of Article 18 shall apply.
Article 18
Non-cooperation
1. In cases in which any interested party refuses access to, or otherwise does
not provide, necessary information within the time-limits provided in this
Decision, or significantly impedes the investigation, provisional or finalfindings, affirmative or negative, may be made on the basis of the factsavailable. Where it is found that any interested party has supplied false or
misleading information, the information shall be disregarded and use may be
made of facts available. Interested parties shall be made aware of theconsequences of non-cooperation.
2. Failure to give a computerized response shall not be deemed to constitute
non-cooperation, provided that the interested party shows that presenting the
response as requested would result in an unreasonable extra burden or
unreasonable additional cost.
3. Where the information submitted by an interested party is not ideal in all
respects it should nevertheless not be disregarded, provided that anydeficiencies are not such as to cause undue difficulty in arriving at areasonably accurate finding and that the information is appropriately
submitted in good time and is verifiable, and that the party has acted to the
best of its ability.!B1996S2277 — EN — 12.05.1999 — 001.001 — 22
4. If evidence or information is not accepted, the supplying party shall be
informed forthwith of the reasons therefor and shall be granted an opportunityto provide further explanations within the time-limit specified. If theexplanations are considered unsatisfactory, the reasons for rejection of such
evidence or information shall be disclosed and given in published findings.
5. If determinations, including those regarding normal value, are based on
the provisions of paragraph 1, including the information supplied in the
complaint, they shall, where practicable and with due regard to the time-limits
of the investigation, be checked by reference to information from otherindependent sources which may be available, such as published price lists,official import statistics and customs returns, or information obtained from
other interested parties during the investigation.
6. If an interested party does not cooperate, or cooperates only partially, so
that relevant information is thereby withheld, the result may be less favourable
to the party than if it had cooperated.
Article 19
Confidentiality
1. Any information which is by nature confidential, (for example, because
its disclosure would be of significant competitive advantage to a competitor or
would have a significantly adverse effect upon a person supplying the
information or upon a person from whom he has acquired the information) orwhich is provided on a confidential basis by parties to an investigation shall, ifgood cause is shown, be treated as such by the authorities.
2. Interested parties providing confidential information shall be required to
furnish non-confidential summaries thereof. Those summaries shall be insufficient detail to permit a reasonable understanding of the substance of the
information submitted in confidence. In exceptional circumstances, such
parties may indicate that such information is not susceptible of summary. Insuch exceptional circumstances, a statement of the reasons why summari-zation is not possible must be provided.
3. If it is considered that a request for confidentiality is not warranted and if
the supplier of the information is either unwilling to make the informationavailable or to authorize its disclosure in generalized or summary from, such
information may be disregarded unless it can be satisfactorily demonstrated
from appropriate sources that the information is correct. Requests forconfidentiality shall not be arbitrarily rejected.
4. This Article shall not preclude the disclosure of general information by
the Community authorities and in particular of the reasons on which decisions
taken pursuant to this Decision are based, or disclosure of the evidence reliedon by the Community authorities in so far as is necessary to explain those
reasons in court proceedings. Such disclosure must take into account the
legitimate interests of the parties concerned that their business secrets shallnot be divulged.
5. The Commission and Member States, or the officials of any of these,
shall not reveal any information received pursuant to this Decision for which
confidential treatment has been requested by its supplier, without specificpermission from the supplier. Exchanges of information between the
Commission and Member States, or any information relating to consultations
made pursuant to Article 15, or any internal documents prepared by theauthorities of the Communtiy or its Member States, shall not be divulgedexcept as specifically provided for in this Decision.
6. Information received pursuant to this Decision shall be used only for the
purpose for which it was requested.
Article 20
Disclosure
1. The complainants, importers and exporters and their representative
associations, and representatives of the exporting country, may request
disclosure of the details underlying the essential facts and considerations onthe basis of which provisional measures have been imposed. Requests for such
disclosure shall be made in writing immediately following the imposition of
provisional measures, and the disclosure shall be made in writing as soon aspossible thereafter.!B1996S2277 — EN — 12.05.1999 — 001.001 — 23
2. The parties mentioned in paragraph 1 may request final disclosure of the
essential facts and considerations on the basis of which it is intended torecommend the imposition of definitive measures, or the termination of aninvestigation or proceedings without the imposition of measures, particular
attention being paid to the disclosure of any facts or considerations which are
different from those used for any provisional measures.
3. Requests for final disclosure, as defined in paragraph 2, shall be
addressed to the Commission in writing and shall have been received, in cases
where a provisional duty has been applied, not later than one month afterpublication of the imposition of that duty. Where a provisional duty has not
been applied, parties shall be provided with an opportunity to request final
disclosure within time-limits set by the Commission.
4. Final disclosure shall be given in writing. It shall be made, due regard
being had to the protection of confidential information, as soon as possible
and, normally, not later than one month prior to a definitive decision by theCommission. Where the Commission is not in a position to disclose certainfacts or considerations at that time, they shall be disclosed as soon as possible
thereafter. Disclosure shall not prejudice any subsequent decision which may
be taken by the Commission but where such decision is based on any differentfacts and considerations, they shall be disclosed as soon as possible.
5. Representations made after final disclosure is given shall be taken into
consideration only if received within a period to be set by the Commission ineach case, which shall be at least 10 days, due consideration being given to the
urgency of the matter.
Article 21
Community interest
1. A determination as to whether the Community interest calls for the
intervention shall be based on an appreciation of all the various interests takenas a whole, including the interests of the domestic industry and users andconsumers; and a determination pursuant to this Article shall be made only
where all parties have been given the opportunity to make their views known
pursuant to paragraph 2. In such an examination, the need to eliminate thetrade distorting effects of injurious dumping and to restore effective
competition shall be given special consideration. Measures, as determined
on the basis of the dumping and injury found, may not be applied where theauthorities, on the basis of all the information submitted, can clearly concludethat is is not in the Community interest to apply such measures.
2. In order to provide a sound basis on which the authorities can take
account of all views and information in the decision as to whether or not theimposition of measures is in the Community interest, the complainants,
importers and their representative associations, representative users and
representative consumer organizations may, within the time-limits specified inthe notice of initiation of the anti-dumping investigation, make themselves
known and provide information to the Commission. Such information, or
appropriate summaries thereof, shall be made available to the other partiesspecified in this Article, and they shall be entitled to respond to suchinformation.
3. The parties which have acted in conformity with paragraph 2 may request
a hearing. Such requests shall be granted when they are submitted within thetime-limits set in paragraph 2, and when they set out the reasons, in terms of
the Community interest, why the parties should be heard.
4. The parties which have acted in conformity with paragraph 2 may provide
comments on the application of any provisional duties imposed. Such
comments shall be received within one month of the application of suchmeasures if they are to be taken into account and they, or appropriatesummaries thereof, shall be made available to other parties who shall be
entitled to respond to such comments.
5. The Commission shall examine the information which is properly
submitted and the extent to which it is representative and the results of such
analysis, together with an opinion on its merits, shall be transmitted to the
Advisory Committee for consultation.!B1996S2277 — EN — 12.05.1999 — 001.001 — 24
6. The parties which have acted in conformity with paragraph 2 may request
the facts and considerations on which final decisions are likely to be taken tobe made available to them. Such information shall be made available to theextent possible and without prejudice to any subsequent decision taken by the
Commission.
7. Information shall only be taken into account where it is supported by
actual evidence which substantiates its validity.
Article 22
Final provisions
This Decision shall not preclude the application of:
(a) any special rules laid down in agreements concluded between the
Community and third countries;
(b) special measures, provided that such action does not run counter to
obligations under the GATT.
Article 23
Non-application of existing legislation and transitional measures
As from the date of entry into force of this Decision the provisions of
Decision 2424/88/ECSC shall no longer apply as regards protection againstdumped imports from countries not members of the European Coal and Steel
Community.
References to those provisions shall be construed as references to this
Decision.
Article 24
Entry into force
This Decision shall enter into force on the third day following that of its
publication in the Official Journal of the European Communities .
The time-limits provided for in Articles 6 (9) and 7 (1) of this Decision shall
not apply to investigations initiated before the date of entry into force of this
Decision.
This Decision shall be binding in its entirety and directly applicable in all
Member States.!B1996S2277 — EN — 12.05.1999 — 001.001 — 25