384/96 - - - I
1This document is meant purely as a documentation tool and the institutions do not assume any liability for its contents
COUNCIL REGULATION (EC) No 384/96
of 22 December 1995
on protection against dumped imports from countries not members of the European Community
(OJ No L 56, 6. 3. 1996, p. 1)
Amended by:
Official Journal
No page date
Council Regulation (EC) No 2331/96 of 2 December 1996 L 317 1 6. 12. 1996
Council Regulation (EC) No 905/98 of 27 April 1998 L 128 18 30. 4. 1998
384/96 - - - I
ICOUNCIL REGULATION (EC) No 384/96
of 22 December 1995
on protection against dumped imports from countries not members of the European Community
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the T reaty establishing the EuropeanCommunity, and in particular Article 113 thereof,
Having regard to the Regulations establishing the common
organization of agricultural markets and the Regulations
adopted pursuant to Article 235 of the T reaty applicable to
goods manufactured from agricultural products, and in par-
ticular the provisions of those Regulations which allow for
derogation from the general principle that protective
measures at frontiers may be replaced solely by the
measures provided for in those Regulations,
Having regard to the proposal from the Commission (
1),
Having regard to the opinion of the European Parlia-
ment (2),
(1) Whereas, by Regulation (EC) No 2423/88 (3), the
Council adopted common rules for protection against
dumped or subsidized imports from countries which
are not members of the European Community;
(2) Whereas those rules were adopted in accordance with
existing international obligations, in particular those
arising from Article VI of the General Agreement on
T ariffs and T rade (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 the GATT (Code on
Subsidies and Countervailing Duties);
(3) Whereas the multilateral trade negotiations concluded
in 1994 have led to new Agreements on the imple-
mentation of Article VI of GATT and it is therefore
appropriate to amend the Community rules in the
light of these new Agreements; whereas is it also des-
irable, 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
are contained in a separate Regulation;
(1) OJ No C 319, 30. 11. 1995.
(2) OJ No C 17, 22. 1. 1996.
(3) OJ No L 209, 2. 8. 1988, p. 1, as last amended by Regula-
tion (EC) No 522/94 (OJ No L 66, 10. 3. 1994, p. 10).
384/96 - - - I
II(4) Whereas, in applying the rules it is essential, in order
to maintain the balance of rights and obligations
which the GATT Agreement establishes, 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 T ariffs and T rade 1994 (herei-
nafter referred to as ‘the 1994 Anti-Dumping Agree-
ment’), contains new and detailed rules, relating in
particular to the calculation of dumping, procedures
for initiating and pursuing an investigation, including
the establishment and treatment of the facts, the im-
position of provisional measures, the imposition and
collection of anti-dumping duties, the duration and re-
view of anti-dumping measures and the public disclo-
sure of information relating to anti-dumping investiga-tions; whereas, in view of the extent of the changes
and to ensure a proper and transparent application of
the new rules, the language of the new agreements
should be brought into Community legislation as far
as possible;
(6) 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 defi-
ne the circumstances in which domestic sales may be
considered to be made at a loss and may be disregar-
ded, 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 of costs, even in start-up situa-
tions; whereas it is also appropriate to lay down gui-
dance as to definition of start-up and the extent and
method of allocation; whereas it is also necessary,
when constructing normal value, to indicate the me-
thodology that is to be applied in determining the
amounts for selling, general and administrative costs
and the profit margin that should be included in such
value;
(7) Whereas when determining normal value for non-mar-
ket economy countries, it appears prudent to set out
rules for choosing the appropriate market-economy
third country that is to be used for such purpose and,
where it is not possible to find a suitable thirdcountry, to provide that normal value may be establis-
hed on any other reasonable basis;
384/96 - - - I
III(8) 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;
(9) Whereas, for the purpose of ensuring a fair compari-
son between export price and normal value, it is advi-
sable to list the factors which may affect 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 also necessary to pro-
vide that comparison may be made using average pri-
ces although individual export prices may be compa-
red to an average normal value where the former vary
by customer, region or time period;
(10) Whereas it is desirable to lay down clear and detailed
guidance as to the factors which may be relevant forthe determination of whether the dumped imports ha-
ve 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 Community industry, atten-
tion should be given to the effect of other factors and
in particular prevailing market conditions in the Com-
munity;
(11) Whereas it is advisable to define the term ‘Commu-
nity industry’ and to provide that parties related to
exporters may be excluded from such industry and to
define the term ‘related’; whereas, it is also necessary
to provide for anti-dumping action to be taken on be-
half of producers in a region of the Community and
to lay down guidelines on the definition of such re-
gion;
(12) 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 in-
dustry, and the information on dumping, injury and
causation which such complaint should contain; whe-
reas it is also expedient to specify the procedures for
the rejection of complaints or the initiation of procee-
dings;
384/96 - - - I
IV(13) Whereas it is necessary to lay down the manner in
which interested parties should be given notice of the
information which the authorities require, and should
have ample opportunity to present all relevant eviden-
ce 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 to make
themselves known, present their views and submit in-
f o r m a t i o nw i t h i ns p e c i f i e dt i m el i m i t s ,i fs u c hv i e w s
and information are to be taken into account; whe-
reas it is also appropriate to set out the conditions
under which an interested party may have access to,
and comment on, information presented by other in-
terested parties; whereas there should also be coope-
ration between the Member States and the Commis-
sion in the collection of information;
(14) Whereas it is necessary to lay down the conditions
under which provisional duties may be imposed, inclu-
ding the condition that they may be imposed no ear-
lier than 60 days from initiation and not later than
nine months thereafter; whereas, for administrative
reasons, it is also necessary to provide that such du-
ties may in all cases be imposed by the Commission,
either directly for a nine-month period or in two sta-
ges of six and three months;
(15) Whereas it is necessary to specify procedures for ac-
cepting undertakings which eliminate dumping and in-
jury instead of imposing provisional or definitive du-
ties; whereas it is also appropriate to lay down the
consequences of breach or withdrawal of undertakings
and that provisional duties may be imposed in cases
of suspected violation or where further investigation is
necessary to supplement the findings; whereas, in ac-
cepting undertakings, care should be taken that the
proposed undertakings, and their enforcement, do not
lead to anti-competitive behaviour;
384/96 - - - I
V(16) Whereas it is necessary to provide that the termina-
tion of cases should, irrespective of whether definitive
measures are adopted or not, normally take place wi-
thin 12 months, and in no case later than 15 months,
from the initiation of the investigation; whereas inves-
tigations 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,
where measures are to be imposed, it is necessary to
provide for the termination of investigations and to
lay down that measures should be less than the mar-
gin of dumping if such lesser amount would remove
the injury, as well as to specify the method of calcula-
ting the level of measures in cases of sampling;
(17) Whereas it is necessary to provide for retroactive co-
llection of provisional duties if that is deemed appro-
priate and to define the circumstances which may trig-ger the retroactive application of duties to avoid 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 withdra-
wal of undertakings;
(18) 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 neces-
sary to provide, in cases where sufficient evidence is
submitted of changed circumstances, for interim re-
views or for investigations to determine whether re-
funds of anti-dumping duties are warranted; whereas
it is also appropriate to lay down that in any recalcu-
lation of dumping which necessitates a reconstruction
of export prices, 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 pro-
ducts subject to measures in the Community;
(19) 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 to measures in the Community;
384/96 - - - I
VI(20) Whereas the 1994 Anti-Dumping Agreement does not
contain provisions regarding the circumvention of an-
ti-dumping measures, though a separate GATT Minis-
terial Decision recognizes circumvention as a problem
and has referred it to the GATT Anti-dumping Com-
mittee for resolution; whereas given the failure of the
multilateral negotiations so far and pending the out-
come of the referral to the GATT Anti-Dumping
Committee, it is necessary to introduce new provisions
into Community legislation to deal with practices, in-
cluding mere assembly of goods in the Community or
a third country, which have as their main aim the cir-
cumvention of anti-dumping measures;
(21) Whereas it is expedient to permit suspension of anti-
dumping measures where there is a temporary change
in market conditions which makes the continued im-
position of such measures temporarily inappropriate;
(22) 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;
(23) 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 measu-
res, and also the amount of duties collected under
this Regulation;
(24) 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 with a re-
presentative of the Commission as chairman;
(25) Whereas it is expedient to provide for verification vi-
sits to check information submitted on dumping and
injury, such visits being, however, conditional on pro-
per replies to questionnaires being received;
(26) Whereas it is essential to provide for sampling in ca-
ses where the number of parties or transactions is lar-
ge in order to permit completion of investigations wi-
thin the appointed time limits;
(27) Whereas it is necessary to provide that where parties
do not cooperate satisfactorily other information may
be used to establish findings and that such informa-
tion may be less favourable to the parties than if they
had cooperated;
384/96 - - - I
VII(28) Whereas provision should be made for the treatment
of confidential information so that business secrets
are not divulged;
(29) Whereas it is essential that provision be made for
proper disclosure of essential facts and considerations
to parties which qualify for such treatment and that
such disclosure be made, with due regard to the deci-
sion-making process in the Community, within a time
period which permits parties to defend their interests;
(30) 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, in-
cluding the consumers’ interest, and to lay down the
time periods within which such information has to be
presented as well as the disclosure rights of the par-
ties concerned;
(31) Whereas, by Regulation (EC) No 3283/94 of 22 De-
cember 1994 on protection against dumped imports
from countries not members of the European Com-
munity (1), the Council repealed Regulation (EEC)
No 2423/88 and instituted a new common system of
defence against dumped imports from countries not
members of the European Community;
(32) Whereas significant errors in the text of Regulation
(EC) No 3283/94 became apparent on publication;
(33) Whereas, moreover, that Regulation has already been
twice amended;
(34) Whereas, in the interests of clarity, transparency and
legal certainty, that Regulation should therefore be
repealed and replaced, without prejudice to the anti-
dumping proceedings already initiated under it or un-
der Regulation (EEC) No 2423/88,
HAS ADOPTED THIS REGULATION:
(1) OJ No L 349, 31. 12. 1994, p. 1. Regulation as last
amended by Regulation (EC) No 1251/95 (OJ No L 122,2. 6. 1995, p. 1).
384/96 - - - I
1Article 1
Principles
1. An anti-dumping duty may be applied to any dumped
product whose release for free circulation in the Commun-
ity 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, ex-
cept where, for example, the products are merely trans-
hipped through that country, or the products concerned
are not produced in that country, or there is no compar-
able price for them in that country.
4. For the purpose of this Regulation, the term ‘like
product’ shall be interpreted to mean a product which isidentical, that is to say, alike in all respects, 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 andmay not be used to establish normal value unless it is de-
termined that they are unaffected by the relationship.
2. Sales of the like product intended for domestic con-
sumption shall normally be used to determine normal
value if such sales volume constitutes 5 % 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 market concerned.384/96
384/96 - - - I
23. 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 sales do not permit
a proper comparison, the normal value of the like product
shall be calculated on the basis of the cost of production
in the country of origin plus a reasonable amount for sel-
ling, general and administrative costs and for profits, or on
the basis of the export prices, in the ordinary course of
trade, to an 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 (fixed and 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 such sales are madewithin an extended period in substantial quantities, and are
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 investiga-
tion, such prices shall be considered to provide for recov-
ery of costs within a reasonable period of time.
The extended period of time 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 substan-
tial quantities within such a period when it is established
that the weighted average selling price is below 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 re-
cords 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 asso-
ciated with the production and sale of the product under
consideration.384/96
384/96 - - - I
3Consideration shall be given to evidence submitted on the
proper allocation of costs, provided that it is shown that
such allocations have been historically utilized. In the ab-
sence of a more appropriate method, preference shall be
given to the allocation of costs on the basis of turnover.
Unless already reflected in the cost allocations under this
subparagraph, costs shall be adjusted appropriately for
those non-recurring items of cost which benefit future and/
or current production.
Where the costs for part of the period for cost recovery
are affected by the use of new production facilities requir-
ing substantial additional investment and by low capacity
utilization rates, which are the result of start-up operations
which take place within or during part of the investigation
period, the average costs for the start-up phase shall be
those applicable, under the abovementioned allocation
rules, at the end of such a phase, and shall be included atthat level, for the period concerned, in the weighted aver-
age costs referred to in the second sub-paragraph of para-
graph 4. The length of a start-up phase shall be deter-
mined in relation to the circumstances of the producer or
exporter concerned, but shall not exceed an appropriate
initial portion of the period for cost recovery. For this ad-
justment to costs applicable during the investigation
period, information relating to a start-up phase which ex-
tends beyond that period shall be taken into account
where it is submitted prior to verification visits and within
three months of the initiation of the investigation.
6. The amounts for selling, for general and administra-
t i v ec o s t sa n df o rp r o f i t ss h a l lb eb a s e do na c t u a ld a t ap e r -
taining 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 deter-
mined on this basis, the amounts may be determined on
the basis of:
(a) the weighted average of the actual amounts deter-
mined for other exporters or producers subject to in-
vestigation in respect of production and 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 ori-
gin;384/96
384/96 - - - I
4(c) any other reasonable method, provided that the
amount for profit so established shall not exceed the
profit normally realized by other exporters or pro-
ducers on sales of products of the same general cat-
egory in the domestic market of the country of origin.
7. (a) In the case of imports from non-market economy
countries (1), normal value shall be determined
on the basis of the price or constructed value in
a market economy third country, or the price
from such a third country to other countries, in-
cluding the Community, or where those are not
possible, on any other reasonable basis, including
the price actually paid or payable in the Commu-
nity for the like product, duly adjusted if neces-
sary 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 informa-
tion made available at the time of selection. Ac-
count shall also be taken of time limits; where
appropriate, a market economy third 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 shall be given 10
days to comment.
(b) In anti-dumping investigations concerning im-
ports from the Russian Federation and the
People’s Republic of China, normal value will be
determined in accordance with paragraphs 1 to
6, if it is shown, on the basis of properly sub-
stantiated claims by one or more producers sub-
ject to the investigation and in accordance with
the criteria and procedures set out in subpara-
graph (c) that market economy conditions prevail
for this producer or producers in respect of the
manufacture and sale of the like product con-
cerned. When this is not the case, the rules set
out under subparagraph (a) shall apply.
(c) A claim under subparagraph (b) must be made
in writing and contain sufficient evidence that
the producer operates under market economy
conditions, that is if:
(1) Including Albania, Armenia, Azerbaijan, Belarus, Georgia,
Kazakhstan, North Korea, Kyrgyzstan, Moldavia, Mongolia,T ajikistan, Turkmenistan, Ukraine, Uzbekistan, Vietnam.384/96
905/98
384/96 - - - I
5— 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 signals reflecting supply and de-
mand, and without significant State interfer-
ence in this regard, and costs of major in-
p u t ss u b s t a n t i a l l yr e f l e c tm a r k e tv a l u e s ,
— 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 distor-
tions carried over from the former non-
market economy system, in particular in
relation to depreciation of assets, otherwrite-offs, barter trade and payment via
compensation of debts,
— the firms concerned are subject to bank-
ruptcy and property laws which guarantee
legal certainty and stability for the oper-
ation of firms, 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 investiga-
tion, after specific consultation of the Advisory
Committee and after the Community industry
has been given an opportunity to comment. This
determination shall remain in force throughout
the investigation.
B. EXPORT PRICE
8. The export price shall be the price actually paid orpayable for the product when sold for export from the ex-
porting country to the Community.
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 arrangement between the
exporter and the importer or a third party, the export price
may be constructed on the basis of the price at which the
imported products are first resold to an independentbuyer, or, if the products are not resold to an independent
buyer, or are not resold in the condition in which they
were imported, on any reasonable basis.905/98
384/96
384/96 - - - I
6In 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 reli-
able export price, at the Community frontier level.
The items for which adjustment shall be made shall in-
clude those normally borne by an importer but paid by any
party, either inside or outside the Community, which ap-
pears to be associated or to have a compensatory arrange-
ment with the importer or exporter, including usual trans-
port, insurance, handling, loading and ancillary costs;
customs duties, any anti-dumping duties, and other taxes
payable in the importing country by reason of the import-
ation 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 exportprice 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 account
taken of other differences which affect price comparability.
W h e r et h en o r m a lv a l u ea n dt h ee x p o r tp r i c ea se s t a b -
lished 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, to affect prices and 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, the
factors for which adjustment can be made are listed as fol-
lows:
(a) Physical characteristics
An adjustment shall be made for differences in the
physical characteristics of the product concerned. The
amount of the adjustment shall correspond to a rea-
sonable estimate of the market value of the differ-
ence.
(b) Import charges and indirect taxes
An adjustment shall be made to normal value for an
amount corresponding to any import charges or indi-
rect taxes borne by the like product and by materials
physically incorporated therein, when intended for
consumption in the exporting country and not col-
lected or refunded in respect of the product exported
to the Community.384/96
384/96 - - - I
7(c) Discounts, rebates and quantities
An adjustment shall be made for differences in dis-
counts and rebates, including those given for differ-
ences in quantities, if these are properly quantified
and are directly linked to the sales under consider-
ation. An adjustment may also be made for deferred
discounts and rebates if the claim is based on consis-
tent practice in prior periods, including compliance
with the conditions required to qualify for the dis-
count 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 Manufacturer) sales,
shall be made where, in relation to the distribu-
t i o nc h a i ni nb o t hm a r k e t s ,i ti ss h o w nt h a tt h e
export price, including a constructed export price,is at a different level of trade from the normal
v a l u ea n dt h ed i f f e r e n c eh a sa f f e c t e dp r i c ec o m -
parability which 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 the adjustment 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 the
exporting countries, or where certain functions
are shown clearly to 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 prod-
uct concerned from the premises of the exporter to an
independent buyer, where such costs are included in
the prices charged. Those costs shall include trans-
port, insurance, handling, loading and ancillary costs.384/96
2331/96
384/96
384/96 - - - I
8(f) Packing
An adjustment shall be made for differences in the
directly related packing costs for the product con-
cerned.
(g) Credit
An adjustment shall be made for differences in the
cost of any credit granted for the sales under consid-
eration, 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, tech-
nical assistance and services, as provided for by law
and/or in the sales contract.
(i) Commissions
An adjustment shall be made for differences in com-
missions paid in respect of the sales under consider-ation.
(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 di-
rectly linked to the export sale involved, the rate of
exchange in the forward sale shall be used. Normally,
t h ed a t eo fs a l es h a l lb et h ed a t eo fi n v o i c eb u tt h e
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
days to reflect a sustained movement in exchange
rates during the investigation period.
(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 they affect price
comparability as required under this paragraph, in
particular that customers consistently pay different
prices on the domestic market because of the differ-
ence in such factors.384/96
2331/96
384/96 - - - I
9D. DUMPING MARGIN
11. Subject to the relevant provisions governing fair com-
parison, the existence of margins of dumping during the
investigation period shall normally 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 nor-
mal values and individual export prices to the Community
on a transaction-to-transaction basis. However, a normal
value established on a weighted average basis may be com-
pared to prices of all individual export transactions to the
Community, if there is a pattern of export prices which
differs significantly among different purchasers, regions or
time periods, and if the methods specified in the first sen-
tence 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.
Article 3
Determination of injury
1. Pursuant to this Regulation, the term ‘injury’ shall,
unless otherwise specified, be taken to mean material in-
jury 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 with the 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 dumped imports and the effectof the dumped imports on prices in the Community market
for like products; and (b) the consequent impact of those
imports on the Community industry.384/96
384/96 - - - I
103. 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 im-
p o r t so np r i c e s ,c o n s i d e r a t i o ns h a l lb eg i v e nt ow h e t h e r
there has been significant price undercutting by the
dumped imports as compared with the price of a like prod-
uct of the Community industry, or whether the effect of
s u c hi m p o r t si so t h e r w i s et od e p r e s sp r i c e st oas i g n i f i c a n t
degree or prevent price increases, which would otherwise
have occurred, to a significant degree. No one or more of
these factors can necessarily give decisive guidance.
4. Where imports of a product from more than one
country are simultaneously subject to anti-dumping inves-
tigations, the effects of such imports shall be cumulatively
assessed only if it is determined that (a) the margin ofdumping 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 imported products and the like
Community product.
5. The examination of the impact of the dumped im-
ports 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 the
fact 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 po-
tential decline in sales, profits, output, market share, pro-
ductivity, return on investments, utilization of capacity; fac-
tors affecting Community prices; actual and potential
negative effects on cash flow, inventories, employment,
wages, growth, ability to raise capital or investments. This
list is not exhaustive, nor can any one or more of these
factors necessarily give decisive guidance.384/96
384/96 - - - I
116. It must be demonstrated, from all the relevant evi-
dence presented in relation to paragraph 2, that the
dumped imports are causing injury within the meaning of
this Regulation. Specifically, this shall entail a demonstra-
tion that the volume and/or price levels identified pursuant
to paragraph 3 are responsible for an impact on the Com-
munity industry as provided for in paragraph 5, and that
this impact exists to a degree which enables it to be classi-
fied 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 injury caused by these
other factors is not attributed to the dumped imports
under paragraph 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 per-
formance 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 cri-
teria as the production process, producers’ sales and
profits. If such separate identification of that production is
not possible, the effects of the dumped imports shall be
assessed by examination of the production of the narrowest
group or range of products, which includes the like prod-
uct, for which the necessary information can be provided.
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 in circumstances which
would create a situation in which the dumping would cause
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
such factors as:
(a) a significant rate of increase of dumped imports into
the Community market indicating the likelihood of
substantially increased imports;384/96
384/96 - - - I
12(b) sufficient freely disposable capacity of the exporter or
an imminent and 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 additional exports;
(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) inventories 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 con-
sidered must lead to the conclusion that further dumped
exports are imminent and that, unless protective action is
taken, material injury will occur.
Article 4
Definition of Community industry
1. For the purposes of this Regulation, the term ‘Com-
munity industry’ shall be interpreted as referring to the
Community producers as a whole of the like products orto 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, ex-
cept that:
(a) when producers are related to the exporters or im-
porters or are themselves importers of the allegedly
dumped product, the term ‘Community industry’ may
be interpreted as referring to the rest of the pro-
ducers;384/96
384/96 - - - I
13(b) in exceptional circumstances the territory of the Com-
munity may, for the production in question, be di-
vided into two or more competitive markets and 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) the de-
mand in that market is not to any substantial degree
supplied by producers of the product in question lo-
cated elsewhere in the Community. In such circum-
stances, injury may be found to exist even where a
major portion of the total Community industry is not
injured, provided there is a concentration of dumped
imports into such an isolated market and provided
further that the dumped imports are causing injury to
the producers of all or almost all of the production
within such a 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 indirectly controls the other; or
(b) both of them are directly or indirectly controlled by a
third person; or (c) together they directly or indirectly con-
trol a third person provided that there are grounds for be-
lieving or suspecting that the effect of the relationship is
such as to cause the producer concerned to behave differ-
ently 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 exer-
cise restraint or direction over the latter.
3. Where the Community industry has been interpreted
as referring to the producers in a certain region, the ex-
porters shall be given an opportunity to offer 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 undertaking is 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 specific producers
or exporters.
4. The provisions of Article 3 (8) shall be applicable to
this Article.384/96
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14Article 5
Initiation of proceedings
1. Except as provided for in paragraph 6, an investiga-
tion to determine the existence, degree and effect of any
alleged dumping shall be initiated upon a written com-
plaint by any natural or legal person, or any association
not having legal personality, acting on behalf of the Com-
munity industry.
The complaint may be submitted to the Commission, or to
a Member State, which shall forward it to the Commission.
The Commission shall send Member 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 the issu-
ing of an acknowledgement of receipt by the Commission.
Where, in the absence of any complaint, a Member State
is in possession of sufficient evidence of dumping and ofresultant injury to the Community industry, it shall im-
mediately 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
t h el i k ep r o d u c tb yt h ec o m p l a i n a n t .W h e r eaw r i t t e n
complaint is made on behalf of the Community in-
dustry, the complaint shall identify the industry on be-
half of which the complaint is made by a list of all
known Community producers of the like product (or
associations of Community producers of the like prod-
uct) and, to the extent possible, a description of the
volume and value of Community production of the
like product accounted for by such producers;
(b) a complete description of the allegedly dumped prod-
uct, the names of the country or countries of origin or
export in question, the identity of each known ex-
porter or foreign producer and a list of known per-
sons importing the product in question;384/96
384/96 - - - I
15(c) information on prices at which the product in ques-
tion is sold when destined for consumption in the do-
mestic markets of the country or countries of origin
or export (or, where appropriate, information on the
prices at which the product is sold from the country
or countries of origin or export to a third country or
countries or on the constructed value of the product)
and information on export prices or, where appropri-
ate, on the prices at which the product is first resold
to an independent buyer in the Community;
(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 the Community
industry, as demonstrated by relevant factors and in-
dices having 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 of support for, or opposi-
tion 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 have been made by or on behalf of
the Community industry if it is supported by those Com-
munity producers whose collective output constitutes more
than 50 % of the total production of the like product pro-
duced by that portion of the Community industry expres-
sing either support for or opposition to the complaint.
However, no investigation shall be initiated when Com-
munity producers expressly supporting the complaint ac-
count for less than 25 % of total production of the like
product produced by the Community industry.
5. The authorities shall avoid, unless a decision has been
made to initiate an investigation, any publicising of the
complaint seeking the initiation of an investigation. How-
ever, after receipt of a properly documented complaint and
before proceeding to initiate an investigation, the govern-
ment of the exporting country concerned shall be notified.384/96
384/96 - - - I
166. If in special circumstances, it is decided to initiate an
investigation without having received a written complaint
by or on behalf of the Community industry for the initi-
ation of such investigation, this shall be done 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 simultaneously in the decision on whether or
not to initiate an investigation. A complaint shall be re-
jected where there is insufficient evidence of either dump-
ing or of injury to justify proceeding with the case. Pro-
ceedings shall not 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 beenlodged.
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 of the 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 within 45 days of the date on
which the complaint is lodged with the Commission.
10. The notice of initiation of the proceedings shall an-
nounce the initiation of an investigation, indicate the prod-
uct and countries concerned, give a summary of the in-
formation 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, present their views in writing and
submit information if such views and information are 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 ) .384/96
384/96 - - - I
1711. The Commission shall advise the exporters, importers
and representative associations of importers or exporters
known to it to be concerned, as well as representatives of
the exporting country and the complainants, of the initi-
ation of the proceedings and, with due regard to the
protection of confidential information, provide the full text
of the written complaint received pursuant to paragraph 1
to the known exporters and to the authorities of the ex-
porting country, and make it available upon request to
other interested parties involved. Where the number of ex-
porters involved is particularly high, the full text of the
written complaint may instead be provided only to the
authorities of the exporting country or to the relevant
trade association.
12. An anti-dumping investigation shall not hinder the
procedures of customs clearance.
Article 6
The investigation
1. Following the initiation of the proceeding, the Com-
mission, 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 months immediately
prior to the initiation of the proceeding. Information relat-
ing to a period subsequent to the investigation period
shall, normally, not be taken into account.
2. Parties receiving questionnaires used in an anti-dump-
ing investigation shall be given 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 purpose
shall be deemed to have been received one week from the
day on which it was sent 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 that the party shows due cause for
such extension, in terms of its particular circumstances.
3. The Commission may request Member States to sup-
ply 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 re-
quested together within the results of all inspections,
checks or investigations carried out. Where this informa-
tion is of general interest or where its transmission has
been requested by a Member State, the Commission shall
forward it to the Member States, provided it is not confi-
dential, in which case a non-confidential summary shall be
forwarded.384/96
384/96 - - - I
184. 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 govern-
ment of 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 re-
quests, to assist the officials 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 pub-
lished in the Official Journal of the European Communities ,
made a written request for a hearing showing that they arean interested party likely to be affected by the result of
the proceeding and that there are particular 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 oppos-
ing views may be presented and rebuttal arguments of-
fered. Provision of such opportunities 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 prejudi-
cial to that party’s case. 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 organiz-
ations, which have made themselves known in accordance
with Article 5 (10), as well as the representatives of the
exporting country may, upon written request, inspect all
information made available by any party to an investiga-
tion, 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 confi-
dential within the meaning of Article 19, and that it is
used in the investigation. Such parties may respond to such
information and their comments shall be taken into con-
sideration, wherever they are sufficiently substantiated inthe response.384/96
384/96 - - - I
198. 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, such investigations shall in all cases
be concluded within 15 months of initiation, in accordance
with the findings made pursuant to Article 8 for undertak-
ings or the findings made pursuant to Article 9 for defini-
tive action.
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 a
provisional affirmative determination has been made of
dumping and consequent injury to the Community in-
dustry, and if the Community interest calls for intervention
to prevent such injury. The provisional duties shall be im-posed no earlier than 60 days from the initiation of the
proceedings but not later than nine months from the initi-
ation of the proceedings.
2. The amount of the provisional anti-dumping duty
shall not exceed the margin of dumping as provisionally
established, but it should be less than the margin 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 circula-
tion in the Community shall be conditional upon the provi-
sion of such guarantee.
4. The Commission shall take provisional action after
consultation or, in cases of extreme urgency, after inform-
ing the Member States. In this latter case, consultations
shall take place 10 days, at the latest, after notification to
the Member States of the action taken by the Commission.
5. Where a Member State requests immediate interven-
tion by the Commission and where the conditions in para-
graph 1 are met, the Commission 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 Council
and the Member States of any decision taken under para-
graphs 1 to 5. The Council, acting by a qualified majority,
may decide differently.384/96
384/96 - - - I
207. Provisional duties may be imposed for six months and
extended for a further three months or they may be im-
posed for nine months. However, they may only be ex-
tended, or imposed for a nine-month period, where ex-
porters representing a significant percentage 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 imposi-
tion of provisional or definitive duties upon receipt of sat-
isfactory voluntary undertakings from any exporter to re-
vise its prices or to cease exports to the area in question at
dumped prices, so that the Commission, after consultation,
is satisfied that the injurious effect of the dumping is elim-
inated. Price increases under such undertakings shall not
be higher than necessary to eliminate the margin of dump-
ing and they should be less than the margin of dumping if
such increases would 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 un-dertaking. The fact that exporters do not offer such under-
takings, 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 be
realized if the dumped imports continue. Undertakings
shall not be sought or accepted from exporters unless a
provisional affirmative determination of dumping and in-
jury caused by such dumping has been made. Save in ex-
ceptional circumstances, undertakings may not be offered
later than the end of the period during which representa-
tions may be made pursuant to Article 20 (5).384/96
384/96 - - - I
213. Undertakings offered need not be accepted if their
acceptance is considered impractical, if such as where the
number of actual or potential exporters is too great, or for
other reasons, including reasons of general policy. The ex-
porter 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 there-
on. The reasons for rejection shall be set out in the defini-
tive 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 available to interested parties to
the investigation.
5. Where undertakings are, after consultation, accepted
and where there is no objection raised within the Advisory
Committee, the investigation shall be terminated. In all
other cases, the Commission shall submit to the Councilforthwith a report on the results of the consultation, to-
gether with a proposal that the investigation be terminated.
The investigation shall be deemed terminated if, within
one month, the Council, acting by a qualified majority, has
not decided otherwise.
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, except in
cases where such a determination is due in large part to
the existence of an undertaking. In such cases it may be
required that an undertaking be maintained for a reason-
able period. In the event that an affirmative determination
of dumping and injury is made, the undertaking shall con-
tinue consistent with its terms and the provisions of this
Regulation.
7. The Commission shall require any exporter from
which an undertaking has been accepted to provide, peri-
odically, information relevant to the fulfilment of such un-
dertaking, 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 ex-
porters 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 the
exporting country.384/96
384/96 - - - I
229. 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 facts established within
the context of the investigation which led to the undertak-
ing, 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 with-
drawn the undertaking, been given an opportunity to com-
ment.
10. A provisional duty may, after consultation, be im-
posed 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 the undertaking 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 un-
necessary and there is no objection raised within the Ad-
visory Committee, the investigation or proceeding shall be
terminated. In all other cases, the Commission shall submit
to the Council forthwith a report on the results of the con-
sultation, together with a proposal that the proceeding be
terminated. The proceeding shall be deemed terminated if,
within one month, the Council, acting by a qualified major-
ity, has not decided otherwise.
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 be
immediate termination where it is determined that the
margin of dumping is less than 2 %, expressed as a percen-
tage of the export price, provided that it is only the inves-
tigation that shall be terminated where the margin is below
2 % for individual exporters and they shall remain subject
to the proceeding and may be reinvestigated in any subse-
quent review carried out for the country concerned pursu-
ant to Article 11.384/96
384/96 - - - I
234. Where the facts as finally established show that there
is dumping and injury caused thereby, and the Community
interest calls for intervention in accordance with Article 21,
a definitive anti-dumping duty shall be imposed by the
Council, acting by simple majority on a proposal submitted
by the Commission after consultation of the Advisory
Committee. Where provisional duties are in force, a propo-
sal for definitive action shall be submitted to the Council
not later than one month before the expiry of such duties.
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 be adequate to re-
move the injury to the Community industry.
5. An anti-dumping duty shall be imposed in the ap-
propriate 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 fromthose sources from which undertakings under the terms of
this Regulation have been accepted. The Regulation im-
posing the duty shall specify the duty for each supplier or,
if that is impracticable, and as a general rule in the cases
referred to in Article 2 (7), the supplying country con-
cerned.
6. When the Commission has limited its examination in
accordance with Article 17, any anti-dumping duty applied
to imports from exporters or producers which have made
themselves known in accordance with Article 17 but 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 re-
ferred 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 the decision taken pursuant
to Articles 7 (1) or 9 (4), as the case may be, enters into
force, subject to the exceptions set out in this Regulation.384/96
384/96 - - - I
242. Where a provisional duty has been applied and the
facts as finally established show that there is dumping and
injury, the Council shall decide, irrespective of whether a
definitive anti-dumping duty is to be imposed, what pro-
portion of the provisional duty is to be definitively col-
lected. 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 measures, have
developed into material injury. In all other cases involving
such threat or retardation, any provisional amounts shall
be released and definitive duties can only be imposed from
the date that a final determination of 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 the provisional duty, theduty 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 application of provisional
measures but not prior to the initiation of the investiga-
tion, provided that imports have been registered in accord-
ance with Article 14 (5), the Commission has allowed the
importers concerned an opportunity to comment, 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
the injury alleged or found; and
(b) in addition to the level of imports which caused injury
during the investigation period, there is a further sub-
stantial rise in imports which, in the light of its timing
and volume and other circumstances, is likely to seri-
ously undermine the remedial effect of the definitive
anti-dumping duty to be applied.
5. In cases of breach or withdrawal of undertakings, de-
finitive duties may be levied on goods entered for free cir-
culation not more than 90 days before the application of
provisional measures, provided that imports have been reg-
istered in accordance with Article 14 (5), and that any
such retroactive assessment shall not apply to imports en-
tered before the breach or withdrawal of the undertaking.384/96
384/96 - - - I
25Article 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 review which has covered
both dumping and injury, unless it is determined in a re-
view that the expiry would be likely to lead to a continu-
ation or recurrence of dumping and injury. Such an expiry
review shall be initiated on the initiative of the Commis-
sion, 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 con-
tains sufficient evidence that the expiry of the measureswould be likely to result in a continuation or recurrence of
dumping and injury. Such a likelihood may, for example,
be indicated by evidence of continued dumping and injury
or evidence that the removal of injury is partly or solely
due to the existence of measures or evidence that the cir-
cumstances of the exporters, or market conditions, are such
that they would indicate the likelihood of further injurious
dumping.
In carrying out investigations under this paragraph, the ex-
porters, importers, the representatives of the exporting
country and the Community producers shall be provided
with the opportunity to amplify, rebut or comment on the
matters 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 ap-
propriate time in the final year of the period of application
of the measures as defined in this paragraph. Thereafter,
the Community 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
sub-paragraph. A notice announcing the actual expiry of
measures pursuant to this paragraph shall also be pub-
lished.384/96
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263. 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 a Member State or,
provided that a reasonable period of time of at least one
year has elapsed since the imposition of the definitive
measure, upon a request by any exporter or importer or by
the Community producers which contains sufficient evi-
dence substantiating the need for such an interim review.
An interim review shall be initiated where the request con-
tains 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 recur if
the measure were removed or varied, or that the existing
measure is not, or is 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 cir-
cumstances with regard to dumping and injury have
changed significantly, or whether existing measures are
achieving the intended results in removing the injury previ-
ously established under Article 3. In these respects, ac-
count shall be taken in the final determination of all rel-
evant and duly documented evidence.
4. A review shall also be carried out for the purpose of
determining individual margins of dumping for new ex-
porters in the exporting country in question which have
not exported the product during the period of investigation
on which the measures were based.
The review shall be initiated where a new exporter or pro-
ducer can show that it is not related to any of the ex-
porters or producers in the exporting country which 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 that it has entered into an irrevocable con-
tractual obligation to export a significant quantity to the
Community.
A review for a new exporter shall be initiated, and carried
out on an accelerated basis, after consultation of the Ad-
visory Committee and after Community producers have
been given an opportunity to comment. The Commission
Regulation initiating a review shall repeal the duty in force
with regard to the new exporter concerned by amending
the Regulation which has imposed such duty, and by mak-
ing imports subject to registration in accordance with Ar-
ticle 14 (5) in order to ensure that, should the review re-sult 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.384/96
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27The provisions of this paragraph shall not apply where
duties have been imposed under Article 9 (6).
5. The relevant provisions of this Regulation with regard
to procedures and the conduct of investigations, excluding
those relating to time limits, shall apply to any review car-
ried out pursuant to paragraphs 2, 3 and 4. Any such re-
view shall be carried out expeditiously and shall normally
be concluded within 12 months 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 Com-
mittee. Where warranted by reviews, measures shall be re-
pealed or maintained pursuant to paragraph 2, or repealed,
maintained or amended pursuant to paragraphs 3 and 4,
by the Community institution responsible for their intro-
duction. Where measures are repealed for individual ex-
porters, but not for the country as a whole, such exportersshall remain subject to the proceeding and may, automati-
cally, be reinvestigated in any subsequent review carried
out for that country 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, such review shall also
cover the circumstances set out in paragraph 2.
8. Notwithstanding paragraph 2, an importer may re-
quest reimbursement of duties collected where it is shown
that the dumping margin, on the basis of which 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 im-
porter shall submit an application to the Commission. The
application shall be submitted via the Member State of the
territory in which the products were released for free cir-
culation, within six months of the date on which the
amount of the definitive duties to be levied was duly deter-
mined by the competent 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 forward the request to the Commission forth-
with.384/96
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28An application for refund shall only be considered to be
duly supported by evidence where it contains precise in-
formation on the amount of refund of anti-dumping duties
claimed and all customs documentation relating to the cal-
culation 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 pro-
ducer to which the duty applies. In cases where the im-
porter is not associate with the exporter or producer con-
cerned and such information 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 been reduced or eliminated, as specified in this Article,
and that the relevant supporting evidence will be provided
to the Commission. Where such evidence is not forthcom-
ing from the exporter or producer within a reasonableperiod of time the application shall be rejected.
The Commission shall, after consultation of the Advisory
Committee, decide whether and to what extent the applica-
tion should be granted, or it may decide at any time to
initiate an interim review, whereupon the information and
findings from such review carried out in accordance with
the provisions applicable 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 on which a request for a refund, duly sup-
ported 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 day of the abovementioned deci-
sion.
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 due account being taken of Article 2, and in particu-
lar paragraphs 11 and 12 thereof, and of Article 17.384/96
384/96 - - - I
2910. In any investigation carried our pursuant to this Ar-
ticle, the Commission shall examine the reliability of ex-
port 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 evi-
dence is provided that the duty is duly reflected in resale
prices and the subsequent selling prices in the Community.
Article 12
1. Where the Community industry submits sufficient in-
formation showing that measures have led to no move-
ment, or insufficient movement, in resale prices or subse-
quent 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 reinvestigation pursuant to this Article, ex-
porters, importers and Community producers shall be pro-
vided with an opportunity to clarify the situation with re-
gard 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 previ-
ously established in accordance with Article 3, exportprices 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 in the Community is due to
a fall in export prices which has occurred prior to or fol-
lowing the imposition of measures, dumping margins may
be recalculated to take account of such lower export
prices.
3. Where a reinvestigation pursuant to this Article shows
increased dumping the measures in force shall be amended
by the Council, by simple majority on a proposal from the
Commission, in accordance with the new findings on ex-
port prices.
4. The relevant provisions of Articles 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 reinvestigation.384/96
384/96 - - - I
305. Alleged changes in normal value shall only be taken
into account under this Article where complete information
on revised normal values, duly substantiated by evidence, is
made available to the Commission within the time limits
set out in the notice of initiation of an investigation.
Where an investigation involves a re-examination of nor-
mal values, imports may be made subject to registration in
accordance with Article 14 (5) pending the outcome of the
reinvestigation.
Article 13
Circumvention
1. Anti-dumping duties imposed pursuant to this Regula-
tion may be extended to imports from third countries of
like products, or parts thereof, when circumvention of the
measures 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 practice,
process or work for which there is insufficient due cause or
economic justification other than the imposition of the
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 evidenceof dumping in relation to the normal values previously es-
tablished for the like or similar products.
2. An assembly operation in the Community or a third
country shall be considered to circumvent the measures in
force where:
(a) the operation started or substantially increased since,
or just prior to, the initiation of the anti-dumping in-
vestigation and the parts concerned are from the
country subject to measures; and
(b) the parts constitute 60 % or more of the total value
of the parts of the assembled product, except that in
no case shall circumvention be considered to be tak-
ing place where the value added to the parts brought
in, during the assembly or completion operation, is
greater than 25 % of the manufacturing cost, and
(c) the remedial effects of the duty are being undermined
in terms of the prices and/or quantities of the as-
s e m b l e dl i k ep r o d u c ta n dt h e r ei se v i d e n c eo fd u m p -
ing in relation to the normal values previously estab-
lished for the like or similar products.384/96
384/96 - - - I
313. Investigations shall be initiated pursuant to this Ar-
ticle where the request contains sufficient evidence regard-
ing the factors set out in paragraph 1. Initiations shall be
made, after consultation of the Advisory Committee, by
Commission Regulation which shall also instruct the cus-
toms authorities to make imports subject to registration in
accordance with Article 14 (5) or to request guarantees.
Investigations shall be carried out by the Commission,
which may be assisted by customs authorities and shall be
concluded within nine months. When the facts as finally
ascertained justify the extension of measures, this shall be
done by the Council, acting by simple majority and on a
proposal from the Commission, from the date on which
registration was imposed pursuant to Article 14 (5) or on
which guarantees were requested. The relevant procedural
provisions of this Regulation with regard to initiations and
the conduct of investigations shall apply pursuant to thisArticle.
4. 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. These certifi-
cates may be issued to importers, upon written application
following authorization by decision of the Commission
after consultation of the Advisory Committee or decision
of the Council imposing measures and they shall remain
valid for the period, and under the conditions, set down
therein.
5. Nothing in this Article shall preclude the normal ap-
plication of the provisions in force concerning customs
duties.
Article 14
General provisions
1. Provisional or definitive anti-dumping duties shall be
imposed by Regulation, and collected by Member States in
the form, at the rate specified and according to the other
criteria laid down in the Regulation imposing such duties.
Such duties shall also be collected independently of the
customs duties, taxes and other charges normally imposed
on imports. No product shall be subject to both anti-dump-
ing and countervailing duties for the purpose of dealing
with one and the same situation arising from dumping or
from export subsidization.384/96
384/96 - - - I
322. Regulations imposing provisional or definitive anti-
dumping duties, and Regulations or Decisions accepting
undertakings or terminating investigations or proceedings,
shall be published in the Official Journal of the European
Communities . Such Regulations or Decisions shall contain
in particular and with due regard to the protection 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 consider-
ations relevant to the dumping and injury determinations.
In each case, a copy of the Regulation or Decision shall be
sent to known interested parties. The provisions of this
paragraph shall apply mutatis mutandis to reviews.
3. Special provisions, in particular with regard to the
common definition of the concept of origin, as contained
in Council Regulation (EEC) No 2913/92 (2), may be
adopted pursuant to this Regulation.
4. In the Community interest, measures imposed pursu-
ant to this Regulation may, after consultation of the Advis-
ory Committee, be suspended by a decision of the Com-
mission for a period of nine months. The suspension may
be extended for a further period, not exceeding one year,
if the Council so decides, acting by simple majority on a
proposal from the Commission. Measures may only be sus-
pended where market conditions have temporarily changed
to an extent that injury would be unlikely to resume as a
result of the suspension, and provided that the Community
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 consultation of the Advis-
ory 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
registration following a request from the Community in-
dustry which contains sufficient evidence to justify such ac-
tion. Registration shall be introduced by Regulation which
shall specify the purpose of the action and, if appropriate,
the estimated amount of possible future liability. Imports
shall not be made subject to registration for a period
longer than nine months.
(2) OJ No L 302, 19. 10. 1992, p. 1.384/96
384/96 - - - I
336. Member States shall report to the Commission every
month, on the import trade in products subject to inves-
tigation and to measures, and on the amount of duties col-
lected pursuant to this Regulation.
Article 15
Consultations
1. Any consultations provided for in this Regulation
shall take place within an Advisory Committee, which shall
consist of representatives of each Member State, with a
representative of the Commission as chairman. Consulta-
tions shall be held immediately at the request of a
Member State or on the initiative of the Commission and
in any event within a period of time which allows the time
limits set by this Regulation to be adhered to.
2. The Committee shall meet when convened by its
chairman. He shall provide the Member States, as prompt-
ly as possible, with all relevant information.
3. Where necessary, consultation may be in writing only;
in that event, the Commission shall notify the Member
States and shall specify a period within which they shall be
entitled to express their opinions or to request an oral con-
sultation which the chairman shall arrange, provided thatsuch oral consultation can be held within a period of time
which allows the time limits set by this Regulation to be
adhered to.
4. Consultation shall cover, in particular:
(a) the existence of dumping and the methods of estab-
lishing the dumping margin;
(b) the existence and extent of injury;
(c) the causal link between the dumped imports and in-
jury;
(d) the measures which, in the circumstances, are ap-
propriate to prevent or remedy the injury caused by
dumping and the ways and means of putting such
measures into effect.
Article 16
Verification visits
1. The Commission shall, where it considers it appropri-
ate, carry out visits to examine the records of importers,
exporters, traders, agents, producers, trade associations and
organizations and to verify information provided on dump-
ing and injury. In the absence of a proper and timely
reply, a verification visit may not be carried out.384/96
384/96 - - - I
342. The Commission may carry out investigations in third
countries as required, provided that it obtains the agree-
ment of the firms concerned, that it notifies the represen-
tatives of the government of the country in question and
that 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 export-
ing country of the names and addresses of the firms to be
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 pro-
vided in the light of information obtained.
4. In investigations carried out pursuant to paragraphs 1,
2 and 3, the Commission shall be assisted by officials ofthose 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, theinvestigation may be limited to a reasonable number of
parties, products or transactions by using samples which
are statistically valid on the basis of information available
at the time of the selection, or to the largest representative
volume of production, sales or exports which can reasona-
bly 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, though preference shall be given
to choosing a sample in consultation with, and with the
consent of, the parties concerned, provided such parties
make themselves known and make sufficient information
available, within three weeks of initiation of the investiga-
tion, to enable a representative sample to be chosen.384/96
384/96 - - - I
353. In cases where the examination has been limited in
accordance with this Article, an individual margin of
dumping shall, nevertheless, be calculated for any exporter
or producer not initially selected who submits the necess-
ary information within the time limits provided for in this
Regulation, except where the number of exporters or pro-
ducers is so large that individual examinations would be
unduly burdensome and would prevent completion of the
investigation 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 to materially affect the outcome of the in-
vestigation, a new sample may be selected. However, if a
material degree of non-cooperation persists or there is in-
sufficient time to select a new sample, the relevant provi-
sions 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 Regulation, or sig-
nificantly impedes the investigation, provisional or finalfindings, affirmative or negative, may be made on the basis
of the facts available. Where it is found that any interested
party has supplied false or misleading information, the in-
formation shall be disregarded and use may be made of
facts available. Interested parties should be made aware of
the consequences 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 re-
quested 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 any deficiencies are not such
as to cause undue difficulty in arriving at a reasonably
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.384/96
384/96 - - - I
364. If evidence or information is not accepted, the supply-
ing party shall be informed forthwith of the reasons there-
for and shall be granted an opportunity to provide further
explanations within the time limit specified. If the explana-
tions are considered unsatisfactory, the reasons for rejec-
tion of such evidence or information shall be disclosed and
g i v e ni np u b l i s h e df i n d i n g s .
5. If determinations, including those regarding normal
value, are based on the provisions of paragraph 1, includ-
ing the information supplied in the complaint, it shall,
where practicable and with due regard to the time limits of
the investigation, be checked by reference to information
from other independent sources which may be available,
such as published price lists, official import statistics and
customs returns, or information obtained from other inter-
ested parties during the investigation.
6. If an interested party does not cooperate, or cooper-
ates 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 sig-
nificantly adverse effect upon a person supplying the in-
formation or upon a person from whom he has acquired
the information) or which is provided on a confidential
basis by parties to an investigation shall, if good 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 in sufficient detail to
permit a reasonable understanding of the substance of the
information submitted in confidence. In exceptional cir-
cumstances, such parties may indicate that such informa-
tion is not susceptible of summary. In such exceptional cir-
cumstances, a statement of the reasons why summarization
i sn o tp o s s i b l em u s tb ep r o v i d e d .384/96
384/96 - - - I
373. 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 information available or to
authorize its disclosure in generalized or summary form,
such information may be disregarded unless it can be satis-
factorily demonstrated from appropriate sources that the
information is correct. Requests for confidentiality shall
not be arbitrarily rejected.
4. This Article shall not preclude the disclosure of gen-
eral information by the Community authorities and in par-
ticular of the reasons on which decisions taken pursuant to
this Regulation are based, or disclosure of the evidence
relied on 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 in-
terests of the parties concerned that their business secrets
should not be divulged.
5. The Council, the Commission and Member States, or
the officials of any of these, shall not reveal any informa-
tion received pursuant to this Regulation for which confi-
dential treatment has been requested by its supplier, with-
out specific permission 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 the
authorities of the Community or its Member States, shall
n o tb ed i v u l g e de x c e p ta ss p e c i f i c a l l yp r o v i d e df o ri nt h i s
Regulation.
6. Information received pursuant to this Regulation 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 ex-
porting country, may request disclosure of the details un-
derlying the essential facts and considerations on the basis
of which provisional measures have been imposed. Re-
quests for such disclosure shall be made in writing immedi-
ately following the imposition of provisional measures, and
the disclosure shall be made in writing as soon as possible
thereafter.384/96
384/96 - - - I
382. The parties mentioned in paragraph 1 may request
final disclosure of the essential facts and considerations on
the basis of which it is intended to recommend the imposi-
tion of definitive measures, or the termination of an inves-
tigation 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 be
received, in cases where a provisional duty has been ap-
plied, not later than one month after publication 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 confiden-
tial information, as soon as possible and, normally, not
later than one month prior to a definitive decision or the
submission by the Commission of any proposal for final
action pursuant to Article 9. Where the Commission is not
in a position to disclose certain facts or considerations at
that time, these shall be disclosed as soon as possible
thereafter. Disclosure shall not prejudice any subsequent
decision which may be taken by the Commission or the
Council but where such decision is based on any different
facts and considerations, these 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 in each case, which
shall be at least 10 days, due consideration being given to
the urgency of the matter.384/96
384/96 - - - I
39Article 21
Community interest
1. A determination as to whether the Community in-
terest calls for intervention shall be based on an appreci-
ation of all the various interests taken as a whole, includ-
ing the interests of the domestic industry and users and
consumers; and a determination pursuant to this Article
shall only be made where all parties have been given the
opportunity to make their views known pursuant to para-
graph 2. In such an examination, the need to eliminate the
trade 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 the authorities, on
the basis of all the information submitted, can clearly con-
clude that it is not in the Community interest to apply
such measures.
2. In order to provide a sound basis on which the auth-
orities can take account of all views and information in the
decision as to whether or not the imposition 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 in the notice of initiation of the anti-
dumping investigation, make themselves known and pro-
vide information to the Commission. Such information, or
appropriate summaries thereof, shall be made available to
the other parties specified in this Article, and they shall be
entitled to respond to such information.
3. The parties which have acted in conformity with para-
graph 2 may request a hearing. Such requests shall be
granted when they are submitted within the time 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 para-
graph 2 may provide comments on the application of any
provisional duties imposed. Such comments shall be re-
ceived within one month of the application of such
measures if they are to be taken into account and they, or
appropriate summaries thereof, shall be made available to
other parties who shall be entitled to respond to such com-
ments.384/96
384/96 - - - I
405. The Commission shall examine the information which
is properly submitted and the extent to which it is repre-
sentative and the results of such analysis, together with an
opinion on its merits, shall be transmitted to the Advisory
Committee. The balance of views expressed in the Com-
mittee shall be taken into account by the Commission in
any proposal made pursuant to Article 9.
6. The parties which have acted in conformity with para-
graph 2 may request the facts and considerations on which
final decisions are likely to be taken to be made available
to them. Such information shall be made available to the
extent possible and without prejudice to any subsequent
decision taken by the Commission or the Council.
7. Information shall only be taken into account where it
is supported by actual evidence which substantiates its
validity.
Article 22
Final provisions
This Regulation shall not preclude the application of:
(a) any special rules laid down in agreements concluded
between the Community and third countries;
(b) the Community Regulations in the agricultural sector
and Council Regulations (EC) No 3448/93 (1), (EEC)
No 2730/75 (2) and (EEC) No 2783/75 (3); this Re-
gulation shall operate by way of complement to those
Regulations and in derogation from any provisions
thereof which preclude the application of anti-dump-
ing duties;
(c) special measures, provided that such action does not
run counter to obligations pursuant to the GATT .
Article 23
Repeal of existing legislation and transitional measures
Regulation (EC) No 3283/94 is hereby repealed, with the
exception of the first paragraph of Article 23 thereof.
However, the repeal of Regulation (EC) No 3283/94 shall
not prejudice the validity of proceedings initiated there-
under.
(1) OJ No L 318, 20. 12. 1993, p. 18.
(2) OJ No L 281, 1. 11. 1975, p. 20. Regulation as amended by
Commission Regulation (EEC) No 222/88 (OJ No L 28, 1. 2.1988, p. 1).
(
3) OJ No L 282, 1. 11. 1975, p. 104. Regulation as last amended
by Regulation (EEC) No 3290/94 (OJ No L 349, 31. 12. 1994,p. 105).384/96
384/96 - - - I
41References to Regulation (EEC) No 2423/88 and to Re-
gulation (EC) No 3283/94 shall be construed as references
to this Regulation, where appropriate.
Article 24
Entry into force
This Regulation shall enter into force on the day of its
publication in the Official Journal of the European Commu-
nities .
However, the time limits provided for in Articles 5 (9), 6
(9) and 7 (1) shall apply to complaints lodged under Ar-
ticle 5 (9) as from 1 September 1995 and investigations
initiated pursuant to such complaints.384/96