1996R0384 — EN — 20.03.2004 — 004.001 — 1
This document is meant purely as a documentation tool and the institutions do not assume any liability for its contents
►B COUNCILREGULATION(EC)No384/96
of22December 1995
onprotectionagainstdumpedimportsfromcountriesnotmembersoftheEuropeanCommunity
(OJ L 56, 6.3.1996, p. 1)
Amended by:
Official Journal
No page date
►M1Council Regulation (EC) No 2331/96 of 2 December 1996 L 317 1 6.12.1996
►M2Council Regulation (EC) No 905/98 of 27 April 1998 L 128 18 30.4.1998
►M3Council Regulation (EC) No 2238/2000 of 9 October 2000 L 257 2 11.10.2000
►M4Council Regulation (EC) No 1972/2002 of 5 November 2002 L 305 1 7.11.2002
►M5Council Regulation (EC) No 461/2004 of 8 March 2004 L 77 12 13.3.2004
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COUNCILREGULATION(EC)No384/96
of22December 1995
onprotectionagainstdumpedimportsfromcountriesnotmembers
oftheEuropeanCommunity
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, andinparticular 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 Treaty applicable to goods manufactured from agricultural
products, and in particular the provisions of those Regulations whichallow for derogation from the general principle that protectivemeasures at frontiers may be replaced solely by the measures providedfor inthose Regulation s,
Having regard to the proposal from the Commission (
1),
Having regard to the opinion of the European Parliament (2),
(1)Whereas, by Regulation(EC) No 2423/88 (3), the Council
adopted commonrules for protectionagain st dumped or subsi-
dized imports from countries which are not members of the
EuropeanCommun ity;
(2)Whereas those rules were adopted in accordance with existinginternational obligations, in particular those arising from ArticleVI of the General Agreement on Tariffs and Trade (hereinafterreferred to as ‘GATT’), from the Agreement on Implementationof 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 Counter-vailing Duties);
(3)Whereas the multilateral trade negotiations concluded in 1994have led to new Agreements on the implementation of ArticleVI of GATT and it is therefore appropriate to amend theCommunity rules in the light of these new Agreements; whereas
is it also desirable, in the light of the different nature of the new
rules for dumping and subsidies respectively, to have a separatebody of Community rules in each of those two areas; whereas,consequently, the new rules on protection against subsidies andcountervailing duties are contained in a separate Regulation;
(4)Whereas, in applying the rules it is essential, in order to main-tain 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 part-ners;
(5)Whereas the new agreement on dumping, namely, the Agree-ment on Implementation of Article VI of the GeneralAgreement on Tariffs and Trade 1994 (hereinafter referred to as
‘the 1994 Anti-Dumping Agreement’), contains new and detailed
rules, relating in particular to the calculation of dumping, proce-dures for initiating and pursuing an investigation, including theestablishment and treatment of the facts, the imposition of provi-sional measures, the imposition and collection of anti-dumpingduties, the duration and review of anti-dumping measures and
the public disclosure of information relating to anti-dumping
investigations; whereas, in view of the extent of the changesand to ensure a proper and transparent application of the new1996R0384 — EN — 20.03.2004 — 004.001 — 2
(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 Regulation (EC) No 522/
94 (OJ No L 66, 10. 3. 1994, p. 10).
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rules, the language of the new agreements should be brought into
Community legislation as far as possible;
(6)Whereas it is desirable to lay downclear an d detailed rules onthe calculationof n ormal value; whereas inparticular such valueshould inall cases be based onrepresen tative sales intheordinary course of trade in the exporting country; whereas, it isexpedient to define the circumstances in which domestic salesmay be considered to be made at a loss and may be disregarded,
and in which recourse may be had to remaining sales, or to
constructed normal value, or to sales to a third country; whereasit is also desirable to provide for a proper allocationof costs,eveninstart-up situation s; whereas it is also appropriate to laydown guidance 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 methodology that isto be applied in determining the amounts for selling, generaland administrative costs and the profit margin that should beincluded in such value;
(7)Whereas when determining normal value for non-marketeconomy countries, it appears prudent to set out rules forchoosing the appropriate market-economy third country that isto be used for such purpose and, where it is not possible to finda suitable third country, to provide that normal value may beestablished on any other reasonable basis;
(8)Whereas it is expedient to define the export price and toenumerate the adjustments which are to be made in those caseswhere a reconstruction of this price from the first open-marketprice is deemed necessary;
(9)Whereas, for the purpose of ensuring a fair comparison betweenexport price and normal value, it is advisable to list the factorswhich may affect prices and price comparability and to lay downspecific rules as to when and how the adjustments should bemade, including the fact that any duplication of adjustmentsshould be avoided; whereas it is also necessary to provide that
comparison may be made using average prices although indivi-
dual export prices may be compared to anaverage n ormalvalue where the former vary by customer, regionor time period;
(10)Whereas it is desirable to lay down clear and detailed guidanceas to the factors which may be relevant for the determination of
whether the dumped imports have caused material injury or are
threatening to cause injury; whereas, in demonstrating that thevolume and price levels of the imports concerned are responsiblefor injury sustained by a Community industry, attention shouldbe given to the effect of other factors and in particular prevailing
market conditions in the Community;
(11)Whereas it is advisable to define the term ‘Community industry’
and to provide that parties related to exporters may be excludedfrom such industry and to define the term ‘related’; whereas, it isalso necessary to provide for anti-dumping action to be taken on
behalf of producers in a region of the Community and to lay
down guidelines on the definition of such region;
(12)Whereas it is necessary to lay down who may lodge an anti-dumping complaint, including the extent to which it should besupported by the Community industry, and the information on
dumping, injury and causation which such complaint should
contain; whereas it is also expedient to specify the proceduresfor the rejection of complaints or the initiation of proceedings;
(13)Whereas it is necessary to lay down the manner in which inter-ested parties should be given notice of the information which the
authorities require, and should have ample opportunity to present
all relevant evidence and to defend their interests; whereas it isalso desirable to set out clearly the rules and procedures to befollowed during the investigation, in particular the rules wherebyinterested parties are to make themselves known, present theirviews and submit information within specified time limits, if1996R0384 — EN — 20.03.2004 — 004.001 — 3
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such views and information are to be taken into account;
whereas it is also appropriate to set out the conditions underwhich an interested party may have access to, and comment on,
information presented by other interested parties; whereas there
should also be cooperationbetweenthe Member States an d theCommission in the collection of information;
(14)Whereas it is necessary to lay down the conditions under whichprovisional duties may be imposed, including the condition that
they may be imposed no earlier than 60 days from initiation and
not later than nine months thereafter; whereas, for administrativereasons, it is also necessary to provide that such duties may inall cases be imposed by the Commission, either directly for anine-month period or in two stages of six and three months;
(15)Whereas it is necessary to specify procedures for accepting
undertakings which eliminate dumping and injury instead of
imposing provisional or definitive duties; whereas it is alsoappropriate to lay down the consequences of breach or with-drawal of undertakings and that provisional duties may beimposed incases of suspected violationor where further in vesti-gation is necessary to supplement the findings; whereas, in
accepting undertakings, care should be taken that the proposed
undertakings, and their enforcement, do not lead to anti-compe-titive behaviour;
(16)Whereas it is necessary to provide that the termination of casesshould, irrespective of whether definitive measures are adopted
or not, normally take place within 12 months, and in no case
later than 15 months, from the initiation of the investigation;whereas investigations or proceedings should be terminatedwhere the dumping is de minimis or the injury is negligible,
and it is appropriate to define those terms; whereas, wheremeasures are to be imposed, it is necessary to provide for the
termination of investigations and to lay down that measures
should be less than the margin of dumping if such lesser amountwould remove the injury, as well as to specify the method ofcalculating the level of measures in cases of sampling;
(17)Whereas it is necessary to provide for retroactive collection ofprovisional duties if that is deemed appropriate and to define
the circumstances which may trigger the retroactive application
of duties to avoid the undermining of the definitive measures tobe applied; whereas it is also necessary to provide that dutiesmay be applied retroactively incases of breach or withdrawalof undertakings;
(18)Whereas it is necessary to provide that measures are to lapseafter five years unless a review indicates that they should bemaintained; whereas it is also necessary to provide, in caseswhere sufficient evidence is submitted of changed circumstances,for interim reviews or for investigations to determine whetherrefunds of anti-dumping duties are warranted; whereas it is also
appropriate to lay down that in any recalculation of dumping
which necessitates a reconstruction of export prices, duties arenot to be treated as a cost incurred between importation andresale where the said duty is being reflected in the prices of theproducts subject to measures inthe Commun ity;
(19)Whereas it is necessary to provide specifically for the reassess-
ment of export prices and dumping margins where the duty is
being absorbed by the exporter through a form of compensatoryarrangement and the measures are not being reflected in theprices of the products subject to measures inthe Commun ity;
(20)Whereas the 1994 Anti-Dumping Agreement does not contain
provisions regarding the circumvention of anti-dumping
measures, though a separate GATT Ministerial Decision recog-nizes circumvention as a problem and has referred it to theGATT Anti-dumping Committee for resolution; whereas giventhe failure of the multilateral negotiations so far and pendingthe outcome of the referral to the GATT Anti-Dumping1996R0384 — EN — 20.03.2004 — 004.001 — 4
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Committee, it is necessary to introduce new provisions into
Community legislation to deal with practices, including mereassembly of goods in the Community or a third country, which
have as their main aim the circumvention of anti-dumping
measures;
(21)Whereas it is expedient to permit suspension of anti-dumpingmeasures where there is a temporary change in market condi-tions which makes the continued imposition of such measurestemporarily inappropriate;
(22)Whereas it is necessary to provide that imports under investiga-tionmay be made subject to registrationuponimportationinorder to enable measures to be applied subsequently against
such imports;
(23)Whereas in order to ensure proper enforcement of measures, it isnecessary that Member States monitor, and report to the
Commission, the import trade of products subject to investiga-tion or subject to measures, and also the amount of dutiescollected under this Regulation;
(24)Whereas it is necessary to provide for consultation of an Advi-sory Committee at regular and specified stages of theinvestigation; whereas, the Committee should consist of repre-
sentatives of Member States with a representative of the
Commissionas chairman ;
(25)Whereas it is expedient to provide for verification visits to checkinformation submitted on dumping and injury, such visits being,however, conditional on proper replies to questionnaires beingreceived;
(26)Whereas it is essential to provide for sampling in cases wherethe number of parties or transactions is large in order to permitcompletion of investigations within the appointed time limits;
(27)Whereas it is necessary to provide that where parties do notcooperate satisfactorily other information may be used to estab-
lish findings and that such information may be less favourable to
the parties thanif they had cooperated;
(28)Whereas provision should be made for the treatment of confiden-tial information so that business secrets are not divulged;
(29)Whereas it is essential that provision be made for proper disclo-sure of essential facts and considerations to parties which qualifyfor such treatment and that such disclosure be made, with dueregard to the decision-making process in the Community, withina time period which permits parties to defend their interests;
(30)Whereas it is prudent to provide for an administrative systemunder which arguments can be presented as to whether measures
are in the Community interest, including the consumers' interest,
and to lay down the time periods within which such informationhas to be presented as well as the disclosure rights of the partiesconcerned;
(31)Whereas, by Regulation(EC) No 3283/94 of 22 December 1994on protection against dumped imports from countries notmembers of the EuropeanCommun ity (
1), the Council repealed
Regulation (EEC) No 2423/88 and instituted a new common
system of defence against dumped imports from countries notmembers of the EuropeanCommun ity;
(32)Whereas significant errors in the text of Regulation (EC) No3283/94 became apparent on publication;
(33)Whereas, moreover, that Regulationhas already beentwiceamended;1996R0384 — EN — 20.03.2004 — 004.001 — 5
(1) OJ No L 349, 31. 12. 1994, p. 1. Regulationas last amen ded by Regulation
(EC) No 1251/95 (OJ No L 122, 2. 6. 1995, p. 1).
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(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 proceedingsalready initiated under it or under Regulation (EEC) No 2423/88,
HAS ADOPTED THIS REGULATION:
Article 1
Principles
1. An anti-dumping duty may be applied to any dumped product
whose release for free circulation in the Community causes injury.
2. A product is to be considered as being dumped if its export price
to the Community is less than a comparable price for the like product,in the ordinary course of trade, as established for the exporting country.
3. The exporting country shall normally be the country of origin.
However, it may be an intermediate country, except where, forexample, the products are merely transhipped through that country, orthe products concerned are not produced in that country, or there is nocomparable price for them inthat coun try.
4. For the purpose of this Regulation, the term ‘like product’ shall
be interpreted to mean a product which is identical, that is to say, alikein 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 productunder consideration.
Article 2
Determination ofdumping
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 inthe 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 establishedonthe basis of prices of other sellers or producers.
Prices betweenparties which appear to be associated or to have a
compensatory arrangement with each other may not be considered tobe in the ordinary course of trade and may not be used to establish
normal value unless it is determined that they are unaffected by the
relationship.
In order to determine whether two parties are associated account may
be takenof the defin itionof related parties set out inArticle 143 ofCommissionRegulation(EEC) 2454/93 of 2 July 1993 layin g down
provisions for the implementation of Council Regulation (EEC) No
2913/92 establishing the Community Customs Code (
1).
2. Sales of the like product intended for domestic consumption shall
normally be used to determine normal value if such sales volumeconstitutes 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 consideredrepresentative for the market concerned.
3. When there are no or insufficient sales of the like product in the
ordinary course of trade, or where because of the particular marketsituation such sales do not permit a proper comparison, the normal1996R0384 — EN — 20.03.2004 — 004.001 — 6
(1) OJ L 253, 11.10.1993, p. 1. Regulationas last amen ded by Commission
Regulation(EC) No 444/2002 (OJ L 68, 12.3.2002, p. 11).▼M4
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value of the like product shall be calculated onthe basis of the cost of
production in the country of origin plus a reasonable amount forselling, general and administrative costs and for profits, or on the basis
of the export prices, inthe ordin ary course of trade, to anappropriate
third country, provided that those prices are representative. ►
M4A
particular market situation for the product concerned within themeaning of the preceding sentence may be deemed to exist, inter alia ,
whenprices are artificially low, whenthere is sign ifican t barter trade,
or when there are non-commercial processing arrangements. ◄
4. Sales of the like product inthe domestic market of the exportin g
country, or export sales to a third country, at prices below unit produc-tion costs (fixed and variable) plus selling, general and administrativecosts may be treated as not being in the ordinary course of trade byreason of price, and may be disregarded in determining normal value,
only if it is determined that such sales are made within an extended
period in substantial quantities, and are at prices which do not providefor the recovery of all costs withina reason able period of time.
If prices which are below costs at the time of sale are above weighted
average costs for the period of investigation, such prices shall beconsidered to provide for recovery 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 consid-ered to be made in substantial quantities within such a period when it isestablished 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 normalvalue.
5. Costs shall normally be calculated on the basis of records kept by
the party under investigation, provided that such records are in accor-dance with the generally accepted accounting principles of the country
concerned and that it is shown that the records reasonably reflect the
costs associated with the production and sale of the product underconsideration. ►
M4If costs associated with the productionan d sale
of the product under investigation are not reasonably reflected in therecords of the party concerned, they shall be adjusted or establishedonthe basis of the costs of other producers or exporters inthe same
country or, where such information is not available or cannot be used,
on any other reasonable basis, including information from other repre-sentative markets. ◄
Consideration shall be given to evidence submitted on the proper allo-
cationof costs, provided that it is shownthat such allocation s have
beenhistorically utilized. Inthe absen ce of a more appropriate method,
preference shall be given to the allocation of costs on the basis of turn-over. Unless already reflected in the cost allocations under thissubparagraph, costs shall be adjusted appropriately for those non-recur-ring 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 requiring substantial additional
investment and by low capacity utilization rates, which are the resultof start-up operations which take place within or during part of theinvestigation period, the average costs for the start-up phase shall bethose applicable, under the abovementioned allocation rules, at theend of such a phase, and shall be included at that level, for the period
concerned, in the weighted average costs referred to in the second sub-
paragraph of paragraph 4. The length of a start-up phase shall be deter-mined in relation to the circumstances of the producer or exporterconcerned, but shall not exceed an appropriate initial portion of theperiod for cost recovery. For this adjustment to costs applicable during
the investigation period, information relating to a start-up phase which
extends beyond that period shall be taken into account where it issubmitted prior to verification visits and within three months of theinitiation of the investigation.
6. The amounts for selling, for general and administrative costs and
for profits shall be based on actual data pertaining to production and1996R0384 — EN — 20.03.2004 — 004.001 — 7
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sales, inthe ordin ary course of trade, of the like product, by the
exporter or producer under investigation. When such amounts cannotbe determined on this basis, the amounts may be determined on the
basis of:
(a) the weighted average of the actual amounts determined for other
exporters or producers subject to investigation in respect of produc-
tionan d sales of the like product inthe 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 productsfor the exporter or producer inquestioninthe domestic market ofthe country of origin;
(c) any other reasonable method, provided that the amount for profit so
established shall not exceed the profit normally realized by other
exporters or producers onsales of products of the same gen eralcategory in the domestic market of the country of origin.
7. (a) In the case of imports from non-market economy countries
►
M3(1)◄, normal value shall be determined on the basis of
the price or constructed value in a market economy thirdcountry, or the price from such a third country to other coun-tries, including the Community, or where those are notpossible, on any other reasonable basis, including the price actu-
ally paid or payable inthe Commun ity for the like product, duly
adjusted if necessary to include a reasonable profit margin.
An appropriate market economy third country shall be selected
in a not unreasonable manner, due account being taken of anyreliable information made available at the time of selection.Account shall also be taken of time limits; where appropriate, amarket 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 envisagedand shall be given 10 days to comment.
(b) In anti-dumping investigations concerning imports from
►
M4 ◄the People's Republic of China, the
Ukraine, Vietnam and Kazakhstan and any non-market-economycountry which is a member of the WTO at the date of the initia-
tion of the investigation, normal value will be determined in
accordance with paragraphs 1 to 6, if it is shown, on the basisof properly substantiated claims by one or more producerssubject to the investigation and in accordance with the criteriaand procedures set out in subparagraph (c) that market economyconditions prevail for this producer or producers in respect of
the manufacture and sale of the like product concerned. When
this is not the case, the rules set out under subparagraph (a) shallapply.
(c) A claim under subparagraph (b) must be made in writing and
contain sufficient evidence that the producer operates undermarket economy conditions, that is if:
— decisions of firms regarding prices, costs and inputs,
including for instance raw materials, cost of technology and
labour, output, sales and investment, are made in response to
market signals reflecting supply and demand, and withoutsignificant State interference in this regard, and costs ofmajor inputs substantially reflect market values,
— firms have one clear set of basic accounting records which
are independently audited in line with internationalaccounting standards and are applied for all purposes,1996R0384 — EN — 20.03.2004 — 004.001 — 8
(1) Including Albania, Armenia, Azerbaijan, Belarus, Georgia, North Korea,
Kyrgyzstan, Moldova, Mongolia, Tajikistan, Turkmenistan, Uzbekistan.▼M2
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— the production costs and financial situation of firms are not
subject to significant distortions carried over from the formernon-market economy system, in particular in relation to
depreciationof assets, other write-offs, barter trade an d
payment via compensation of debts,
— the firms concerned are subject to bankruptcy and property
laws which guarantee legal certainty and stability for the
operationof firms, an d
— exchange rate conversions are carried out at the market rate.
A determination whether the producer meets the abovemen-
tioned criteria shall be made within three months of theinitiation of the investigation, after specific consultation of theAdvisory Committee and after the Community industry hasbeen 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 or payable for
the product when sold for export from the exporting country to the
Community.
9. Incases where there is n o export price or where it appears that
the export price is unreliable because of an association or a compensa-
tory arrangement between the exporter and the importer or a third
party, the export price may be constructed on the basis of the price atwhich the imported products are first resold to an independent buyer,or, if the products are not resold to an independent buyer, or are notresold in the condition in which they were imported, on any reasonablebasis.
In these cases, adjustment for all costs, including duties and taxes,
incurred between importation and resale, and for profits accruing, shallbe made so as to establish a reliable export price, at the Community
frontier level.
The items for which adjustment shall be made shall include those
normally borne by an importer but paid by any party, either inside oroutside the Community, which appears to be associated or to have a
compensatory arrangement with the importer or exporter, including
usual transport, insurance, handling, loading and ancillary costs;customs duties, any anti-dumping duties, and other taxes payable inthe importing country by reason of the importation or sale of thegoods; and a reasonable margin for selling, general and administrativecosts and profit.
C. COMPARISON
10. A fair comparisonshall be made betweenthe export price an d
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 sametime and with due account taken of other differences which affect pricecomparability. Where the normal value and the export price as estab-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 differ-
ences in factors which are claimed, and demonstrated, to affect pricesand price comparability. Any duplication when making adjustmentsshall be avoided, inparticular inrelationto discoun ts, rebates, quan ti-ties and level of trade. When the specified conditions are met, thefactors for which adjustment can be made are listed as follows:
(a)Physical characteristics
An adjustment shall be made for differences in the physical charac-
teristics of the product concerned. The amount of the adjustmentshall correspond to a reasonable estimate of the market value ofthe difference.
(b)Import charges and indirect taxes
An adjustment shall be made to normal value for an amount corre-
sponding to any import charges or indirect taxes borne by the like1996R0384 — EN — 20.03.2004 — 004.001 — 9
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product and by materials physically incorporated therein, when
intended for consumption in the exporting country and notcollected or refunded in respect of the product exported to the
Community.
(c)Discounts, rebates and quantities
An adjustment shall be made for differences in discounts and
rebates, including those given for differences in quantities, if these
are properly quantified and are directly linked to the sales under
consideration. An adjustment may also be made for deferreddiscounts and rebates if the claim is based on consistent practicein prior periods, including compliance with the conditions requiredto qualify for the discount or rebates.
(d)Level of trade
(i) An adjustment for differences in levels of trade, including any
differences which may arise in OEM (Original EquipmentManufacturer) sales, shall be made where, in relation to the
distributionchaininboth markets, it is shownthat the export
price, including a constructed export price, is at a differentlevel of trade from the normal value and the difference hasaffected price comparability which is demonstrated by consis-tent and distinct differences in functions and prices of theseller for the different levels of trade in the domestic market
of the exporting country. The amount of the adjustment shall
be based onthe market value of the differen ce.
(ii) However, in circumstances not envisaged under (i), when an
existing difference in level of trade cannot be quantifiedbecause of the absence of the relevant levels on the domesticmarket of the exporting countries, or where certain functionsare shownclearly to relate to levels of trade other thantheone which is to be used in the comparison, a special adjustment
may be granted.
(e)Transport, insurance, handling, loading and ancillary costs
An adjustment shall be made for differences in the directly related
costs incurred for conveying the product concerned from the
premises of 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.
(f)Packing
An adjustment shall be made for differences in the directly related
packing costs for the product concerned.
(g)Credit
An adjustment shall be made for differences in the cost of any
credit granted for the sales under consideration, provided that it is
a factor taken into account in the determination of the pricescharged.
(h)After-sales costs
An adjustment shall be made for differences in the direct costs of
providing warranties, guarantees, technical assistance and services,as provided for by law and/or in the sales contract.
(i)Commissions
An adjustment shall be made for differences in commissions paid
in respect of the sales under consideration. ►
M4The term
‘commissions’ shall be understood to include the mark-up receivedby a trader of the product or the like product if the functions ofsuch a trader are similar to those of an agent working on a commis-sionbasis. ◄
(j)Currency conversions
When the price comparison requires a conversion of currencies,
such conversion shall be made using the rate of exchange on thedate of sale, except that whena sale of foreigncurren cy onforward1996R0384 — EN — 20.03.2004 — 004.001 — 10
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markets is directly linked to the export sale involved, the rate of
exchange in the forward sale shall be used. Normally, the date ofsale shall be the date of invoice but the date of contract, purchase
order or order confirmation may be used if these more appropri-
ately establish the material terms of sale. Fluctuations in exchangerates shall be ignored and exporters shall be granted 60 days toreflect a sustained movement in exchange rates during the investi-gationperiod.
(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 demonstratedthat they affect price comparability as required under this para-graph, in particular that customers consistently pay different pricesonthe domestic market because of the differen ce insuch factors.
D. DUMPING MARGIN
11. Subject to the relevant provisions governing fair comparison, the
existence of margins of dumping during the investigation period shallnormally be established on the basis of a comparison of a weightedaverage normal value with a weighted average of prices of all exporttransactions to the Community, or by a comparison of individualnormal values and individual export prices to the Community on a
transaction-to-transaction basis. However, a normal value established
ona weighted average basis may be compared to prices of all in divi-dual export transactions to the Community, if there is a pattern ofexport prices which differs significantly among different purchasers,regions or time periods, and if the methods specified in the firstsentence of this paragraph would not reflect the full degree of dumping
being practised. This paragraph shall not preclude the use of sampling
inaccordan ce with Article 17.
12. The dumping margin shall be the amount by which the normal
value exceeds the export price. Where dumping margins vary, aweighted average dumping margin may be established.
Article 3
Determination ofinjury
1. Pursuant to this Regulation, the term ‘injury’ shall, unless other-
wise specified, be takento meanmaterial in jury to the Commun ity
industry, threat of material injury to the Community industry or mate-
rial retardation of the establishment of such an industry and shall beinterpreted 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 thedumped imports and the effect of the dumped imports on prices in theCommunity market for like products; and (b) the consequent impact ofthose imports on the Community industry.
3. With regard to the volume of the dumped imports, consideration
shall be given to whether there has been a significant increase in
dumped imports, either inabsolute terms or relative to productionor
consumption in the Community. With regard to the effect of thedumped imports onprices, con siderationshall be givento whetherthere has been significant price undercutting by the dumped importsas compared with the price of a like product of the Communityindustry, or whether the effect of such imports is otherwise to depress
prices to a significant degree or prevent price increases, which would
otherwise have occurred, to a significant degree. No one or more ofthese factors can necessarily give decisive guidance.
4. Where imports of a product from more than one country are
simultaneously subject to anti-dumping investigations, the effects ofsuch imports shall be cumulatively assessed only if it is determinedthat (a) the marginof dumpin g established inrelationto the importsfrom each country is more than de minimis as defined in Article 9 (3)1996R0384 — EN — 20.03.2004 — 004.001 — 11
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and that the volume of imports from each country is not negligible; and
(b) a cumulative assessment of the effects of the imports is appropriatein 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 imports on the
Community industry concerned shall include an evaluation of all rele-vant economic factors and indices having a bearing on the state of theindustry, 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 potentialdecline in sales, profits, output, market share, productivity, return oninvestments, utilization of capacity; factors affecting Communityprices; 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.
6. It must be demonstrated, from all the relevant evidence presented
in relation to paragraph 2, that the dumped imports are causing injurywithin the meaning of this Regulation. Specifically, this shall entail ademonstration that the volume and/or price levels identified pursuant
to paragraph 3 are responsible for an impact on the Community
industry as provided for in paragraph 5, and that this impact exists toa degree which enables it to be classified as material.
7. Known factors other than the dumped imports which at the same
time are injuring the Community industry shall also be examined toensure that injury caused by these other factors is not attributed to thedumped 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 ofconsumption, restrictive trade practices of, and competition between,third country and Community producers, developments in technologyand the export performance and productivity of the Communityindustry.
8. The effect of the dumped imports shall be assessed inrelationto
the production of the Community industry of the like product when
available data permit the separate identification of that production onthe basis of such criteria as the productionprocess, producers' salesand profits. If such separate identification of that production is notpossible, the effects of the dumped imports shall be assessed by exam-
ination of the production of the narrowest group or range of products,
which includes the like product, for which the necessary informationcanbe 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 whichthe dumping would cause injury must be clearly foreseen and immi-
nent.
In making a determination regarding the existence of a threat of mate-
rial injury, consideration should be given to such factors as:
(a) a significant rate of increase of dumped imports into the Commu-
nity market indicating the likelihood of substantially increasedimports;
(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 toabsorb any additional exports;
(c) whether imports are entering at prices that would, to a significant
degree, depress prices or prevent price increases which otherwisewould have occurred, and would probably increase demand forfurther imports; and
(d) inventories of the product being investigated.1996R0384 — EN — 20.03.2004 — 004.001 — 12
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No one of the factors listed above by itself can necessarily give deci-
sive guidance but the totality of the factors considered must lead to theconclusion that further dumped exports are imminent and that, unless
protective action is taken, material injury will occur.
Article 4
DefinitionofCommunityindustry
1. For the purposes of this Regulation, the term ‘Community
industry’ shall be interpreted as referring to the Community producers
as a whole of the like products or to those of them whose collectiveoutput of the products constitutes a major proportion, as defined inArticle 5 (4), of the total Community production of those products,except that:
(a) whenproducers are related to the exporters or importers or are
themselves importers of the allegedly dumped product, the term
‘Community industry’ may be interpreted as referring to the rest
of the producers;
(b) in exceptional circumstances the territory of the Community may,
for the production in question, be divided into two or more compe-
titive markets and the producers within each market may be
regarded as a separate industry if (i) the producers within such amarket sell all or almost all of their productionof the product inquestion in that market; and (ii) the demand in that market is notto any substantial degree supplied by producers of the product inquestionlocated elsewhere inthe Commun ity. Insuch circum-
stances, injury may be found to exist even where a major portion
of the total Community industry is not injured, provided there is aconcentration of dumped imports into such an isolated market andprovided further that the dumped imports are causing injury to theproducers of all or almost all of the productionwithinsuch 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 orindirectly controls the other; or (b) both of them are directly or indir-ectly controlled by a third person; or (c) together they directly orindirectly control a third person provided that there are grounds forbelieving or suspecting that the effect of the relationship is such as to
cause the producer concerned to behave differently from non-related
producers. For the purpose of this paragraph, one shall be deemed tocontrol another when the former is legally or operationally in a positionto exercise restraint or direction over the latter.
3. Where the Community industry has been interpreted as referring
to the producers ina certainregion , the exporters shall be givenanopportunity 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 interestof the region. If an adequate undertaking is not offered promptly or thesituations set out in Article 8 (9) and (10) apply, a provisional or defi-nitive duty may be imposed in respect of the Community as a whole.
Insuch 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.
Article 5
Initiationofproceedings
1. Except as provided for inparagraph 6, anin vestigationto deter-
mine the existence, degree and effect of any alleged dumping shall be
initiated upon a written complaint by any natural or legal person, orany association not having legal personality, acting on behalf of theCommunity industry.
The complaint may be submitted to the Commission, or to a Member
State, which shall forward it to the Commission. The Commission shallsend Member States a copy of any complaint it receives. The complaint1996R0384 — EN — 20.03.2004 — 004.001 — 13
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shall be deemed to have beenlodged onthe first workin g day
following its delivery to the Commission by registered mail or theissuing of an acknowledgement of receipt by the Commission.
Where, in the absence of any complaint, a Member State is in posses-
sion of sufficient evidence of dumping and of resultant injury to the
Community industry, it shall immediately communicate such evidenceto the Commission.
2. A complaint under paragraph 1 shall include evidence of
dumping, injury and a causal link between the allegedly dumpedimports and the alleged injury. The complaint shall contain such infor-
mation as is reasonably available to the complainant on the following:
(a) identity of the complainant and a description of the volume and
value of the Community production of the like product by thecomplainant. Where a written complaint is made on behalf of theCommunity industry, the complaint shall identify the industry onbehalf of which the complaint is made by a list of all knownCommunity producers of the like product (or associations of
Community producers of the like product) and, to the extent
possible, a description of the volume and value of Communityproductionof the like product accoun ted for by such producers;
(b) a complete descriptionof the allegedly dumped product, the n ames
of the country or countries of origin or export in question, the iden-
tity of each known exporter or foreign producer and a list of knownpersons importing the product in question;
(c) information on prices at which the product in question is sold when
destined for consumption in the domestic markets of the country or
countries of origin or export (or, where appropriate, information on
the prices at which the product is sold from the country or coun-tries of origin or export to a third country or countries or on theconstructed value of the product) and information on export pricesor, where appropriate, onthe prices at which the product is firstresold to an independent buyer in the Community;
(d) information on changes in the volume of the allegedly dumped
imports, the effect of those imports onprices of the like producton the Community market and the consequent impact of theimports on the Community industry, as demonstrated by relevant
factors and indices having a bearing on the state of the Community
industry, such as those listed in Article 3 (3) and (5).
3. The Commissionshall, as far as possible, examin e the accuracy
and adequacy of the evidence provided in the complaint to determinewhether there is sufficient evidence to justify the initiation of an inves-tigation.
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 oppositionto, the complain t expressed by
Community producers of the like product, that the complaint has beenmade by or on behalf of the Community industry. The complaint shallbe considered to have been made by or on behalf of the Communityindustry if it is supported by those Community producers whose collec-
tive output constitutes more than 50 % of the total production of the
like product produced by that portion of the Community industryexpressing either support for or opposition to the complaint. However,no investigation shall be initiated when Community producersexpressly supporting the complaint account for less than 25 % of totalproduction 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. However, after receipt of a properly docu-mented complaint and before proceeding to initiate an investigation,the government of the exporting country concerned shall be notified.
6. If in special circumstances, it is decided to initiate an investiga-
tion without having received a written complaint by or on behalf ofthe Community industry for the initiation of such investigation, this1996R0384 — EN — 20.03.2004 — 004.001 — 14
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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 investi-
gation. A complaint shall be rejected where there is insufficientevidence of either dumping or of injury to justify proceeding with thecase. Proceedings shall not be initiated against countries whose importsrepresent a market share of below 1 %, unless such countries collec-tively account for 3 % or more of Community consumption.
8. The complaint may be withdrawn prior to initiation, in which
case it shall be considered not to have been lodged.
9. Where, after consultation, it is apparent that there is sufficient
evidence to justify initiating a proceeding, the Commission shall do sowithin 45 days of the lodging of the complaint and shall publish anotice 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 announce the
initiation of an investigation, indicate the product and countriesconcerned, give a summary of the information received, and providethat all relevant information is to be communicated to the Commission;it shall state the periods withinwhich in terested parties may make
themselves known, present their views in writing and submit informa-
tion if such views and information are to be taken into account duringthe investigation; it shall also state the period within which interestedparties may apply to be heard by the Commissioninaccordan ce withArticle 6 (5).
11. The Commissionshall advise the exporters, importers an d repre-
sentative associations of importers or exporters known to it to be
concerned, as well as representatives of the exporting country and thecomplainants, of the initiation of the proceedings and, with due regardto the protection of confidential information, provide the full text of thewritten complaint received pursuant to paragraph 1 to the known
exporters and to the authorities of the exporting country, and make it
available upon request to other interested parties involved. Where thenumber of exporters involved is particularly high, the full text of thewritten complaint may instead be provided only to the authorities ofthe exporting country or to the relevant trade association.
12. An anti-dumping investigation shall not hinder the procedures of
customs clearance.
Article 6
Theinvestigation
1. Following the initiation of the proceeding, the Commission,
acting in cooperation with the Member States, shall commence an
investigation at Community level. Such investigation shall cover bothdumping and injury and these shall be investigated simultaneously.For the purpose of a representative finding, an investigation periodshall be selected which, in the case of dumping shall, normally, covera period of not less than six months immediately prior to the initiation
of the proceeding. Information relating to a period subsequent to the
investigation period shall, normally, not be taken into account.
2. Parties receiving questionnaires used in an anti-dumping investi-
gationshall be givenat least 30 days to reply. The time limit forexporters shall be counted from the date of receipt of the questionnaire,which for this purpose shall be deemed to have beenreceived on e
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 beingtaken of the time limits of the investigation, provided that the partyshows due cause for such extension, in terms of its particular circum-stances.1996R0384 — EN — 20.03.2004 — 004.001 — 15
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3. The Commissionmay request Member States to supply in forma-
tion, and Member States shall take whatever steps are necessary inorder to give effect to such requests. They shall send to the Commis-
sionthe in formationrequested together withinthe results of all
inspections, checks or investigations carried out. Where this informa-tion is of general interest or where its transmission has been requestedby a Member State, the Commissionshall forward it to the MemberStates, provided it is not confidential, in which case a non-confidential
summary shall be forwarded.
4. The Commissionmay 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 government of the country in question has been officiallynotified and raises no objection. Member States shall take whateversteps are necessary in order to give effect to such requests from theCommission. Officials of the Commission shall be authorized, if the
Commissionor a Member State so requests, to assist the officials of
Member States incarryin g 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 inthe n otice published inthe Official Journal of the
European Communities , made a written request for a hearing showing
that they are anin terested party likely to be affected by the result ofthe proceeding and that there are particular reasons why they shouldbe heard.
6. Opportunities shall, on request, be provided for the importers,
exporters, representatives of the government of the exporting countryand the complainants, which have made themselves known in accor-dance with Article 5 (10), to meet those parties with adverse interests,
so that opposing views may be presented and rebuttal arguments
offered. Provision of such opportunities must take account of the needto preserve confidentiality and of the convenience to the parties. Thereshall be no obligation on any party to attend a meeting, and failure todo so shall not be prejudicial 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 representa-
tive associations, users and consumer organizations, 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 investigation,as distinct from internal documents prepared by the authorities of theCommunity or its Member States, which is relevant to the presentation
of their cases and not confidential within the meaning of Article 19,
and that it is used in the investigation. Such parties may respond tosuch information and their comments shall be taken into consideration,wherever they are sufficiently substantiated in the response.
8. Except in the circumstances provided for in Article 18, the infor-
mation which is supplied by interested parties and upon which findingsare based shall be examined for accuracy as far as possible.
9. For proceedings initiated pursuant to Article 5 (9), an investiga-
tion shall, whenever possible, be concluded within one year. In anyevent, such investigations shall in all cases be concluded within 15months of initiation, in accordance with the findings made pursuant toArticle 8 for undertakings or the findings made pursuant to Article 9for definitive 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 tothat effect and interested parties have been given adequate opportu-nities to submit information and make comments in accordance with1996R0384 — EN — 20.03.2004 — 004.001 — 16
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Article 5 (10), if a provisional affirmative determination has been made
of dumping and consequent injury to the Community industry, and ifthe Community interest calls for intervention to prevent such injury.
The provisional duties shall be imposed no earlier than 60 days from
the initiation of the proceedings but not later than nine months fromthe initiation of the proceedings.
2. The amount of the provisional anti-dumping duty shall not exceed
the marginof dumpin g as provision ally established, but it should beless thanthe marginif such lesser duty would be adequate to remove
the injury to the Community industry.
3. Provisional duties shall be secured by a guarantee, and the release
of the products concerned for free circulation in the Community shallbe conditional upon the provision of such guarantee.
4. The Commission shall take provisional action after consultation
or, in cases of extreme urgency, after informing 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 intervention by the
Commission and where the conditions in paragraph 1 are met, theCommissionshall withina maximum of five workin g days of receiptof 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 paragraphs 1 to 5. TheCouncil, acting by a qualified majority, may decide differently.
7. Provisional duties may be imposed for six months and extended
for a further three months or they may be imposed for nine months.However, they may only be extended, or imposed for a nine-month
period, where exporters representing a significant percentage of the
trade involved so request or do not object upon notification by theCommission.
Article 8
Undertakings
1. Upon condition that a provisional affirmative determination of
dumping and injury has been made, the Commission may accept satis-factory voluntary undertaking offers submitted by any exporter to
revise its prices or to cease exports at dumped prices, if, after specific
consultation of the Advisory Committee, it is satisfied that the injuriouseffect of the dumping is thereby eliminated. In such a case and as longas such undertakings are in force, the provisional duties imposed by theCommission in accordance with Article 7(1) or the definitive dutiesimposed by the Council in accordance with Article 9(4) as the case
may be shall not apply to the relevant imports of the product concerned
manufactured by the companies referred to in the Commission decisionaccepting undertakings, as subsequently amended. Price increasesunder such undertakings shall not be higher than necessary to eliminatethe margin of dumping 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 undertaking. The factthat exporters do not offer such undertakings, or do not accept an invi-
tation to do so, shall in no way prejudice consideration of the case.
However, it may be determined that a threat of injury is more likelyto be realized if the dumped imports continue. Undertakings shall notbe sought or accepted from exporters unless a provisional affirmativedetermination of dumping and injury caused by such dumping hasbeen made. Save in exceptional circumstances, undertakings may not1996R0384 — EN — 20.03.2004 — 004.001 — 17
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be offered later than the end of the period during which representations
may be made pursuant to Article 20 (5).
3. Undertakings offered need not be accepted if their acceptance is
considered impractical, if such as where the number of actual or poten-
tial exporters is too great, or for other reasons, including reasons ofgeneral policy. The exporter concerned may be provided with thereasons for which it is proposed to reject the offer of an undertakingand may be given an opportunity to make comments thereon. The
reasons for rejection shall be set out in the definitive decision.
4. Parties which offer an undertaking shall be required to provide a
non-confidential version of such undertaking, so that it may be madeavailable 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 inves-tigationshall be termin ated. Inall other cases, the Commissionshall
submit to the Council forthwith a report on the results of the consulta-
tion, together with a proposal that the investigation be terminated. Theinvestigation shall be deemed terminated if, within one month, theCouncil, 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 deter-
mination of dumping or injury is made, the undertaking shall
automatically lapse, except incases where such a determin ationis duein large part to the existence of an undertaking. In such cases it may berequired that an undertaking be maintained for a reasonable period. Inthe event that an affirmative determination of dumping and injury is
made, the undertaking shall continue consistent with its terms and the
provisions of this Regulation.
7. The Commission shall require any exporter from which an under-
taking has been accepted to provide, periodically, information relevantto the fulfilment of such undertaking, and to permit verification ofpertinent data. Non-compliance with such requirements shall be
construed as a breach of the undertaking.
8. Where undertakings are accepted from certain exporters during
the course of an investigation, they shall, for the purpose of Article11, be deemed to take effect from the date onwhich the in vestigationis concluded for the exporting country.
9. In case of breach or withdrawal of undertakings by any party to
the undertaking, or in case of withdrawal of acceptance of the under-taking by the Commission, the acceptance of the undertaking shall,after consultation, be withdrawn by Commission Decision or Commis-sion Regulation, as appropriate, and the provisional duty which hasbeenimposed by the Commissioninaccordan ce with Article 7 or the
definitive duty which has been imposed by the Council in accordance
with Article 9(4) shall automatically apply, provided that the exporterconcerned has, except where he himself has withdrawn the undertaking,been given an opportunity to comment.
Any interested party or Member State may submit information showing
prima facie evidence of a breach of an undertaking. The subsequent
assessment of whether or not a breach of an undertaking has occurred
shall normally be concluded within six months, but in no case laterthan nine months following a duly substantiated request. The Commis-sion may request the assistance of the competent authorities of theMember States in the monitoring of undertakings.
10. A provisional duty may, after consultation, be imposed in accor-
dance 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 inves-tigation which led to the undertaking has not been concluded.1996R0384 — EN — 20.03.2004 — 004.001 — 18
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Article 9
Terminationwithoutmeasures;impositionofdefinitive duties
1. Where the complaint is withdrawn, the proceeding may be termi-
nated unless such termination would not be in the Community interest.
2. Where, after consultation, protective measures are unnecessary
and there is no objection raised within the Advisory Committee, the
investigation or proceeding shall be terminated. In all other cases, theCommissionshall submit to the Coun cil forthwith a report ontheresults of the consultation, together with a proposal that the proceedingbe terminated. The proceeding shall be deemed terminated if, withinone month, the Council, acting by a qualified majority, 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 repre-sent less than the volumes set out in Article 5 (7). For the sameproceeding, there shall be immediate termination where it is deter-mined that the margin of dumping is less than 2 %, expressed as a
percentage of the export price, provided that it is only the investigation
that shall be terminated where the margin is below 2 % for individualexporters and they shall remain subject to the proceeding and may bereinvestigated in any subsequent review carried out for the countryconcerned pursuant to Article 11.
4. Where the facts as finally established show that there is dumping
and injury caused thereby, and the Community interest calls for inter-vention in accordance with Article 21, a definitive anti-dumping dutyshall be imposed by the Council, acting on a proposal submitted bythe Commissionafter con sultationof the Advisory Committee. Theproposal shall be adopted by the Council unless it decides by a simple
majority to reject the proposal, within a period of one month after its
submission by the Commission. Where provisional duties are in force,a proposal for definitive action shall be submitted not later than onemonth before the expiry of such duties. The amount of the anti-dumping duty shall not exceed the margin of dumping established butit should be less thanthe marginif such lesser duty would be adequate
to remove the injury to the Community industry.
5. An anti-dumping duty shall be imposed in the appropriate
amounts in each case, on a non-discriminatory basis on imports of aproduct from all sources found to be dumped and causing injury,except as to imports from those sources from which undertakings under
the terms of this Regulationhave beenaccepted. The Regulation
imposing the duty shall specify the duty for each supplier or, if that isimpracticable, and in general where Article 2(7)(a) applies, thesupplying country concerned.
Where Article 2(7)(a) applies, anin dividual duty shall, however, be
specified for the exporters which candemon strate, onthe basis of prop-
erly substantiated claims that:
(a) in the case of wholly or partly foreign owned firms or joint
ventures, exporters are free to repatriate capital and profits;
(b) export prices and quantities, and conditions and terms of sale are
freely determined;
(c) the majority of the shares belong to private persons. State officials
appearing on the board of Directors or holding key managementpositions shall either be in minority or it must be demonstratedthat the company is nonetheless sufficiently independent from Stateinterference;
(d) exchange rate conversions are carried out at the market rate; and
(e) State interference is not such as to permit circumvention of
measures if individual exporters are given different rates of duty.1996R0384 — EN — 20.03.2004 — 004.001 — 19
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6. When the Commission has limited its examination in accordance
with Article 17, any anti-dumping duty applied to imports from expor-ters 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 marginof dumpin g established for theparties inthe sample. For the purpose of this paragraph, the Commis-sion shall disregard any zero and de minimis margins, and margins
established in the circumstances referred to in Article 18. Individual
duties shall be applied to imports from any exporter or producer which
is granted individual treatment, as provided for in Article 17.
Article 10
Retroactivity
1. Provisional measures and definitive anti-dumping duties shall
only be applied to products which enter free circulation after the time
whenthe decisiontakenpursuan t to Articles 7 (1) or 9 (4), as the case
may be, enters into force, subject to the exceptions set out in this Regu-lation.
2. 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 proportion of the provisional duty is to be definitivelycollected. For this purpose, ‘injury’ shall not include material retarda-tion of the establishment of a Community industry, nor threat ofmaterial injury, except where it is found that this would, in the absenceof 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 imposedfrom the date that a final determination of threat or material retardationis 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 thanthe provision al duty, the duty shall be recalculated. Wherea final determination is negative, the provisional duty shall not beconfirmed.
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 ofthe investigation, provided that imports have been registered in accor-dance with Article 14 (5), the Commission has allowed the importersconcerned 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 theinjury alleged or found; and
(b) in addition to the level of imports which caused injury during the
investigation period, there is a further substantial rise in importswhich, in the light of its timing and volume and other circum-stances, is likely to seriously undermine the remedial effect of thedefinitive anti-dumping duty to be applied.
5. In cases of breach or withdrawal of undertakings, definitive duties
may be levied on goods entered for free circulation not more than 90days before the applicationof provision al measures, provided thatimports have been registered in accordance with Article 14 (5), andthat any such retroactive assessment shall not apply to imports enteredbefore the breach or withdrawal of the undertaking.1996R0384 — EN — 20.03.2004 — 004.001 — 20
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Article 11
Duration,reviewsandrefunds
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 whichis causing injury.
2. A definitive anti-dumping measure shall expire five years from its
impositionor five years from the date of the con clusionof the most
recent review which has covered both dumping and injury, unless it is
determined in a review that the expiry would be likely to lead to acontinuation or recurrence of dumping and injury. Such an expiryreview shall be initiated on the initiative of the Commission, or uponrequest made by or on behalf of Community producers, and the
measure shall remain in force pending the outcome of such review.
An expiry review shall be initiated where the request contains suffi-
cient evidence that the expiry of the measures would be likely to
result in a continuation or recurrence of dumping and injury. Such alikelihood may, for example, be indicated by evidence of continueddumping and injury or evidence that the removal of injury is partly orsolely due to the existence of measures or evidence that the circum-
stances 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 exporters,
importers, the representatives of the exporting country and the Commu-nity producers shall be provided with the opportunity to amplify, rebutor comment on the matters set out in the review request, and conclu-sions 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 leadto 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 anappropriate time inthe fin al year of
the period of applicationof the measures as defin ed inthis 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 announ-cing the actual expiry of measures pursuant to this paragraph shall alsobe published.
3. The need for the continued imposition of measures may also be
reviewed, where warranted, on the initiative of the Commission or atthe 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 defini-
tive measure, upona request by an y exporter or importer or by theCommunity producers which contains sufficient evidence substantiatingthe need for such an interim review.
An interim review shall be initiated where the request contains suffi-
cient evidence that the continued imposition of the measure is nolonger 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 coun-teract the dumping which is causing injury.
In carrying out investigations pursuant to this paragraph, the Commis-
sionmay, inter alia , consider whether the circumstances with regard to
dumping and injury have changed significantly, or whether existingmeasures are achieving the intended results in removing the injury
previously established under Article 3. In these respects, account shall
be taken in the final determination of all relevant and duly documentedevidence.
4. A review shall also be carried out for the purpose of determining
individual margins of dumping for new exporters in the exportingcountry in question which have not exported the product during theperiod of investigation on which the measures were based.1996R0384 — EN — 20.03.2004 — 004.001 — 21
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The review shall be initiated where a new exporter or producer can
show that it is not related to any of the exporters or producers in theexporting 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 candemonstrate that it has entered into an irrevocable contractual obliga-tion 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 Advisory Committee andafter Community producers have been given an opportunity tocomment. 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 makingimports subject to registrationinaccordan ce with Article 14 (5) inorder to ensure that, should the review result in a determination ofdumping in respect of such an exporter, anti-dumping duties can be
levied retroactively to the date of the initiation of the review.
The provisions of this paragraph shall not apply where duties have
beenimposed un der Article 9 (6).
5. The relevant provisions of this Regulation with regard to proce-
dures and the conduct of investigations, excluding those relating totime limits, shall apply to any review carried out pursuant to para-
graphs 2, 3 and 4 of this Article. Reviews carried out pursuant to
paragraphs 2 and 3 shall be carried out expeditiously and shallnormally be concluded within 12 months of the date of initiation ofthe review. In any event, reviews pursuant to paragraphs 2 and 3 shallin all cases be concluded within 15 months of initiation. Reviewspursuant to paragraph 4 shall in all cases be concluded within nine
months of the date of initiation. If a review carried out pursuant to
paragraph 2 is initiated while a review under paragraph 3 is ongoingin the same proceeding, the review pursuant to paragraph 3 shall beconcluded at the same time as foreseen above for the review pursuantto paragraph 2.
The Commission shall submit a proposal for action to the Council not
later than one month before the expiry of the above deadlines.
If the investigation is not completed within the above deadlines, the
measures shall:
— expire in investigations pursuant to paragraph 2 of this Article,
— expire in the case of investigations carried out pursuant to para-
graphs 2 and 3 of this Article in parallel, where either theinvestigation pursuant to paragraph 2 was initiated while a reviewunder paragraph 3 was ongoing in the same proceeding or wheresuch reviews were initiated at the same time, or
— remain unchanged in investigations pursuant to paragraphs 3 and 4
of this Article.
A notice announcing the actual expiry or maintenance of the measures
pursuant to this paragraph shall then be published in the Official
Journal of the European Union .
6. Reviews pursuant to this Article shall be initiated by the Commis-
sion after consultation of the Advisory Committee. Where warranted byreviews, measures shall be repealed or maintained pursuant to para-graph 2, or repealed, maintained or amended pursuant to paragraphs 3and 4, by the Community institution responsible for their introduction.
Where measures are repealed for individual exporters, but not for the
country as a whole, such exporters shall remain subject to theproceeding and may, automatically, be reinvestigated in any subsequentreview 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 definedinparagraph 2, such review shall also cover the circumstan ces set outinparagraph 2.1996R0384 — EN — 20.03.2004 — 004.001 — 22
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8. Notwithstanding paragraph 2, an importer may request reimburse-
ment of duties collected where it is shown that the dumping margin, onthe basis of which duties were paid, has beenelimin ated, or reduced to
a level which is below the level of the duty inforce.
In requesting a refund of anti-dumping duties, the importer shall submit
anapplicationto the Commission . The applicationshall be submittedvia the Member State of the territory inwhich the products werereleased for free circulation, within six months of the date on whichthe amount of the definitive duties to be levied was duly determinedby 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 Commissionforthwith.
An application for refund shall only be considered to be duly supported
by evidence where it contains precise information on the amount ofrefund of anti-dumping duties claimed and all customs documentationrelating to the calculation and payment of such amount. It shall alsoinclude evidence, for a representative period, of normal values and
export prices to the Community for the exporter or producer to which
the duty applies. Incases where the importer is n ot associate with theexporter or producer concerned and such information is not immedi-ately available, or where the exporter or producer is unwilling torelease 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 relevantsupporting evidence will be provided to the Commission. Where suchevidence is not forthcoming from the exporter or producer within areasonable period of time the application shall be rejected.
The Commissionshall, after con sultationof the Advisory Committee,
decide whether and to what extent the application should be granted,or it may decide at any time to initiate an interim review, whereupon
the information and findings from such review carried out in accor-
dance with the provisions applicable for such reviews, shall be used todetermine whether and to what extent a refund is justified. Refunds ofduties shall normally take place within 12 months, and in no circum-stances more than 18 months after the date on which a request for a
refund, duly supported by evidence, has been made by an importer of
the product subject to the anti-dumping duty. The payment of anyrefund authorized should normally be made by Member States within90 day of the abovementioned decision.
9. In all review or refund investigations carried out pursuant to this
Article, the Commission shall, provided that circumstances have notchanged, apply the same methodology as in the investigation whichled to the duty, with due account being taken of Article 2, and in parti-
cular paragraphs 11 and 12 thereof, and of Article 17.
10. In any investigation carried our pursuant to this Article, the
Commission shall examine the reliability of export prices in accordance
with Article 2. However, where it is decided to construct the exportprice in accordance with Article 2 (9), it shall calculate it with nodeduction for the amount of anti-dumping duties paid when conclusiveevidence 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 or any other interested party
submit, normally within two years from the entry into force of themeasures, sufficient information showing that, after the original inves-
tigation period and prior to or following the imposition of measures,
export prices have decreased or that there has been no movement, orinsufficient movement in the resale prices or subsequent selling pricesof the imported product in the Community, the investigation may, afterconsultation, be reopened to examine whether the measure has hadeffects on the abovementioned prices.1996R0384 — EN — 20.03.2004 — 004.001 — 23
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The investigation may also be reopened, under the conditions set out
above, at the initiative of the Commission or at the request of aMember State.
2. During a reinvestigation pursuant to this Article, exporters, impor-
ters and Community producers shall be provided with an opportunity toclarify the situation with regard to resale prices and subsequent sellingprices: if it is concluded that the measure should have led to move-ments in such prices, then, in order to remove the injury previouslyestablished inaccordan ce with Article 3, export prices shall be reas-
sessed in accordance with Article 2 and dumping margins shall be
recalculated to take account of the reassessed export prices.►
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met due to a fall inexport prices which has occurred after the origin alinvestigation period and prior to or following the imposition ofmeasures, 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 may, after consultation, be amendedby the Council, acting on a proposal from the Commission in accor-dance with the new findings on export prices. The proposal shall beadopted by the Council unless it decides by a simple majority to reject
the proposal, within a period of one month after its submission by the
Commission. The amount of the anti-dumping duty imposed pursuantto this Article shall not exceed twice the amount of the duty imposedinitially by the Council.
4. The relevant provisions of Article 5 and 6 shall apply to any rein-
vestigationcarried out pursuan t to this Article, except that suchreinvestigation shall be carried out expeditiously and shall normally
be concluded within six months of the date of initiation of the reinves-
tigation. In any event, such reinvestigations shall in all cases beconcluded within nine months of initiation of the reinvestigation.
The Commission shall submit a proposal for action to the Council not
later than one month before the expiry of the above deadline.
If the reinvestigation is not completed within the above deadlines,
measures shall remain unchanged. A notice announcing the mainte-nance of the measures pursuant to this paragraph shall be published in
theOfficial Journal of the European Union .
5. Alleged changes in normal value shall only be taken into account
under this Article where complete information on revised normalvalues, duly substantiated by evidence, is made available to theCommission within the time limits set out in the notice of initiation ofan investigation. Where an investigation involves a re-examination ofnormal values, imports may be made subject to registration in accor-
dance with Article 14 (5) pending the outcome of the reinvestigation.
Article 13
Circumvention
1. Anti-dumping duties imposed pursuant to this Regulation may be
extended to imports from third countries, of the like product, whether
slightly modified or not; or to imports of the slightly modified like
product from the country subject to measures; or parts thereof, whencircumvention of the measures in force is taking place. Anti-dumpingduties not exceeding the residual anti-dumping duty imposed in accor-dance with Article 9(5) of this Regulation may be extended to imports
from companies benefiting from individual duties in the countries
subject to measures whencircumven tionof the measures inforce istaking place. Circumvention shall be defined as a change in the patternof trade between third countries and the Community or between indivi-dual companies in the country subject to measures and the Community,which stems from a practice, process or work for which there is insuf-1996R0384 — EN — 20.03.2004 — 004.001 — 24
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ficient due cause or economic justification other than the imposition of
the duty, and where there is evidence of injury or that the remedialeffects of the duty are being undermined in terms of the prices and/or
quantities of the like product, and where there is evidence of dumping
inrelationto the n ormal values previously established for the likeproduct, if necessary in accordance with the provisions of Article 2.
The practice, process or work referred to inparagraph 1 in cludes, inter
alia, the slight modification of the product concerned to make it fall
under customs codes which are normally not subject to the measures,provided that the modification does not alter its essential characteris-
tics; the consignment of the product subject to measures via third
countries; the reorganisation by exporters or producers of their patternsand channels of sales in the country subject to measures in order toeventually have their products exported to the Community throughproducers benefiting from an individual duty rate lower than thatapplicable to the products of the manufacturers; and, in the circum-
stances indicated below under Article 13(2), the assembly of parts by
an assembly operation in the Community or a third country.
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 investigation and the partsconcerned 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 taking place where the value added to the parts
brought in, during the assembly or completion operation, is greaterthan 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 assembled like product and there
is evidence of dumping in relation to the normal values previously
established for the like or similar products.
3. Investigations shall be initiated pursuant to this Article on the
initiative of the Commission or at the request of a Member State orany interested party on the basis of sufficient evidence regarding thefactors set out in paragraph 1. Initiations shall be made, after consulta-tionof the Advisory Committee, by CommissionRegulationwhichmay also instruct the customs authorities to make imports subject to
registration in accordance with Article 14(5) or to request guarantees.
Investigations shall be carried out by the Commission, which may beassisted by customs authorities and shall be concluded within ninemonths. When the facts as finally ascertained justify the extension ofmeasures, this shall be done by the Council, acting on a proposal
submitted by the Commission, after consultation of the Advisory
Committee. The proposal shall be adopted by the Council unless itdecides by a simple majority to reject the proposal, withina period ofone month after its submission by the Commission. The extension shalltake effect from the date onwhich registrationwas imposed pursuan t toArticle 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 this Article.
4. Imports shall not be subject to registration pursuant to Article
14(5) or measures where they are traded by companies which benefitfrom exemptions. Requests for exemptions duly supported by evidenceshall be submitted withinthe time limits established inthe CommissionRegulation initiating the investigation. Where the circumventing prac-
tice, process or work takes place outside the Community, exemptions
may be granted to producers of the product concerned that can showthat they are not related to any producer subject to the measures andthat are found not to be engaged in circumvention practices as definedin Article 13(1) and 13(2). Where the circumventing practice, processor work takes place inside the Community, exemptions may be granted1996R0384 — EN — 20.03.2004 — 004.001 — 25
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to importers that canshow that they are n ot related to producers subject
to the measures.
These exemptions are granted by decision of the Commission after
consultation of the Advisory Committee or decision of the Council
imposing measures and shall remain valid for the period and under
the conditions set down therein.
Provided that the conditions set in Article 11(4) are met, exemptions
may also be granted after the conclusion of the investigation leadingto the extension of the measures.
Provided that at least one year has lapsed from the extension of the
measures, and in case the number of parties requesting or potentiallyrequesting an exemption is significant, the Commission may decide to
initiate a review of the extension of the measures. Any such review
shall be conducted in accordance with the provisions of Article 11(5)as applicable to reviews pursuant to Article 11(3).
5. Nothing in this Article shall preclude the normal application of
the provisions in force concerning customs duties.
Article 14
General provisions
1. Provisional or definitive anti-dumping duties shall be imposed by
Regulation, and collected by Member States in the form, at the ratespecified and according to the other criteria laid down in the Regula-tionimposin g such duties. Such duties shall also be collectedindependently of the customs duties, taxes and other charges normally
imposed on imports. No product shall be subject to both anti-dumping
and countervailing duties for the purpose of dealing with one and thesame situation arising from dumping or from export subsidization.
2. Regulations imposing provisional or definitive anti-dumping
duties, and Regulations or Decisions accepting undertakings or termi-nating 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 ofconfidential information, the names of the exporters, if possible, or ofthe countries involved, a description of the product and a summary ofthe material facts and considerations relevant to the dumping and injurydeterminations. In each case, a copy of the Regulation or Decision
shall be sent to known interested parties. The provisions of this para-
graph shall apply mutatis mutandis to reviews.
3. Special provisions, in particular with regard to the common defi-
nition of the concept of origin, as contained in Council Regulation(EEC) No 2913/92 (
1), may be adopted pursuant to this Regulation.
4. In the Community interest, measures imposed pursuant to this
Regulationmay, after con sultationof the Advisory Committee, besuspended by a decision of the Commission 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 on a proposalfrom the Commission. The proposal shall be adopted by the Councilunless it decides by a simple majority to reject the proposal, within aperiod of one month after its submission by the Commission. Measures
may only be suspended where market conditions have temporarily
changed to an extent that injury would be unlikely to resume as a resultof the suspension, and provided that the Community industry has beengiven an opportunity to comment and these comments have been takeninto account. Measures may, at any time and after consultation, be rein-stated if the reason for suspension is no longer applicable.1996R0384 — EN — 20.03.2004 — 004.001 — 26
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5. The Commissionmay, after con sultationof the Advisory
Committee, direct the customs authorities to take the appropriate stepsto register imports, so that measures may subsequently be applied
against those imports from the date of such registration. Imports may
be made subject to registrationfollowin g a request from the Commu-nity industry which contains sufficient evidence to justify such action.Registrationshall be in troduced by Regulationwhich shall specify thepurpose of the action and, if appropriate, the estimated amount of
possible future liability. Imports shall not be made subject to registra-
tion for a period longer than nine months.
6. Member States shall report to the Commissionevery mon th, on
the import trade in products subject to investigation and to measures,
and on the amount of duties collected pursuant to this Regulation.
7. Without prejudice to paragraph 6, the Commissionmay request
Member States, ona case by case basis, to supply in formationn eces-sary to monitor efficiently the application of measures. In this respect,
the provisions of Articles 6(3) and 6(4) shall apply. Any data submitted
by Member States pursuant to this Article shall be covered by theprovisions of Article 19(6).
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 aschairman. Consultations shall be held immediately at the request of aMember State or on the initiative of the Commission and in any eventwithina period of time which allows the time limits set by this Regu-lationto be adhered to.
2. The Committee shall meet when convened by its chairman. He
shall provide the Member States, as promptly as possible, but no laterthan 10 working days before the meeting, 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 specifya period within which they shall be entitled to express their opinions orto request an oral consultation which the chairman shall arrange,provided that such oral consultation can be held within a period oftime which allows the time limits set by this Regulationto be adhered
to.
4. Consultation shall cover, in particular:
(a) the existence of dumping and the methods of establishing the
dumping margin;
(b) the existence and extent of injury;
(c) the causal link between the dumped imports and injury;
(d) the measures which, inthe circumstan ces, are appropriate to
prevent or remedy the injury caused by dumping and the waysand means of putting such measures into effect.
Article 16
Verification visits
1. The Commissionshall, where it con siders it appropriate, carry out
visits to examine the records of importers, exporters, traders, agents,producers, trade associations and organizations and to verify informa-
tion provided on dumping and injury. In the absence of a proper and
timely reply, a verificationvisit may n ot be carried out.
2. The Commission may carry out investigations in third countries
as required, provided that it obtains the agreement of the firms1996R0384 — EN — 20.03.2004 — 004.001 — 27
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concerned, that it notifies the representatives of the government of the
country in question and that the latter does not object to the investiga-tion. As soon as the agreement of the firms concerned has been
obtained the Commission should notify the authorities of the exporting
country of the names and addresses of the firms to be visited and thedates agreed.
3. The firms concerned shall be advised of the nature of the infor-
mation to be verified during verification visits and of any furtherinformation which needs to be provided during such visits, though thisshould not preclude requests made during the verification for furtherdetails to be provided in the light of information obtained.
4. In investigations carried out pursuant to paragraphs 1, 2 and 3,
the Commissionshall be assisted by officials of those Member Stateswho so request.
Article 17
Sampling
1. In cases where the number of complainants, exporters or impor-
ters, types of product or transactions is large, the investigation may be
limited to a reasonable number of parties, products or transactions byusing samples which are statistically valid on the basis of informationavailable at the time of the selection, or to the largest representativevolume of production, sales or exports which can reasonably be inves-tigated withinthe 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 avail-able, within three weeks of initiation of the investigation, to enable arepresentative sample to be chosen.
3. In cases where the examination has been limited in accordance
with this Article, an individual margin of dumping shall, nevertheless,be calculated for any exporter or producer not initially selected whosubmits the necessary information within the time limits provided forin this Regulation, except where the number of exporters or producersis 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-coop-
erationby some or all of the parties selected which is likely tomaterially affect the outcome of the investigation, a new sample may
be selected. However, if a material degree of non-cooperation persists
or there is insufficient 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 other-
wise does not provide, necessary information within the time limits
provided in this Regulation, or significantly impedes the investigation,
provisional or final findings, affirmative or negative, may be made onthe basis of the facts available. Where it is found that any interestedparty has supplied false or misleading information, the informationshall 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 showsthat presenting the response as requested would result in an unreason-
able 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, providedthat any deficiencies are not such as to cause undue difficulty in1996R0384 — EN — 20.03.2004 — 004.001 — 28
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arriving at a reasonably accurate finding and that the information is
appropriately submitted in good time and is verifiable, and that theparty has acted to the best of its ability.
4. If evidence or information is not accepted, the supplying party
shall be informed forthwith of the reasons therefor and shall be grantedan opportunity to provide further explanations within the time limitspecified. If the explanations are considered unsatisfactory, the reasonsfor rejection of such evidence or information shall be disclosed andgiven in published findings.
5. If determinations, including those regarding normal value, are
based on the provisions of paragraph 1, including the information
supplied in the complaint, it shall, where practicable and with dueregard to the time limits of the investigation, be checked by referenceto 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 interested parties during
the investigation. ►
M4Such information may include relevant data
pertaining to the world market or other representative markets, whereappropriate. ◄
6. If an interested party does not cooperate, or cooperates only
partially, so that relevant information is thereby withheld, the resultmay be less favourable to the party thanif it had cooperated.
Article 19
Confidentiality
1. Any information which is by nature confidential, (for example,
because its disclosure would be of significant competitive advantage
to a competitor or would have a significantly adverse effect upon aperson supplying the information or upon a person from whom he hasacquired the information) or which is provided on a confidential basisby parties to an investigation shall, if good cause is shown, be treatedas such by the authorities.
2. Interested parties providing confidential information shall be
required to furnish non-confidential summaries thereof. Those summa-ries shall be in sufficient detail to permit a reasonable understanding ofthe substance of the information submitted in confidence. In excep-tional circumstances, such parties may indicate that such informationis not susceptible of summary. In such exceptional circumstances, a
statement of the reasons why summarization is not possible must be
provided.
3. If it is considered that a request for confidentiality is not
warranted and if the supplier of the information is either unwilling tomake the information available or to authorize its disclosure in general-ized or summary form, such information may be disregarded unless it
canbe satisfactorily demon strated from appropriate sources that the
information is correct. Requests for confidentiality shall not be arbitra-rily rejected.
4. This Article shall not preclude the disclosure of general informa-
tion by the Community authorities and in particular of the reasons onwhich decisions taken pursuant to this Regulation are based, or disclo-sure 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 interests of the partiesconcerned 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 information received pursuant tothis Regulation for which confidential treatment has been requested by
its supplier, without specific permissionfrom the supplier. Exchan ges
of information between the Commission and Member States, or anyinformation relating to consultations made pursuant to Article 15, orany internal documents prepared by the authorities of the Communityor its Member States, shall not be divulged except as specificallyprovided for inthis Regulation .1996R0384 — EN — 20.03.2004 — 004.001 — 29
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6. Information received pursuant to this Regulation shall be used
only for the purpose for which it was requested. This provision shallnot preclude the use of information received in the context of one
investigation for the purpose of initiating other investigations within
the same proceeding in relation to the product concerned.
Article 20
Disclosure
1. The complainants, importers and exporters and their representa-
tive associations, and representatives of the exporting country, mayrequest disclosure of the details underlying the essential facts andconsiderations on the basis of which provisional measures have been
imposed. Requests for such disclosure shall be made inwritin g imme-
diately following the imposition of provisional measures, and thedisclosure shall be made inwritin g as soonas possible thereafter.
2. The parties mentioned in paragraph 1 may request final disclosure
of the essential facts and considerations on the basis of which it isintended to recommend the imposition of definitive measures, or the
termination of an investigation or proceedings without the imposition
of measures, particular attention being paid to the disclosure of anyfacts or considerations which are different from those used for anyprovisional 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 applied, not later than one monthafter publicationof the impositionof that duty. Where a provision alduty has not been applied, parties shall be provided with an opportunityto request final disclosure within time limits set by the Commission.
4. Final disclosure shall be given in writing. It shall be made, due
regard being had to the protection of confidential information, as soonas possible and, normally, not later than one month prior to a definitivedecision or the submission by the Commission of any proposal for finalaction pursuant to Article 9. Where the Commission is not in a positionto disclose certain facts or considerations at that time, these shall be
disclosed as soonas possible thereafter. Disclosure shall n ot prejudice
any subsequent decision which may be taken by the Commission or theCouncil but where such decision is based on any different facts andconsiderations, 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
Commissionineach case, which shall be at least 10 days, due con sid-eration being given to the urgency of the matter.
Article 21
Communityinterest
1. A determination as to whether the Community interest calls for
intervention shall be based on an appreciation of all the various inter-
ests taken as a whole, including the interests of the domestic industryand users and consumers; and a determination pursuant to this Articleshall only be made where all parties have been given the opportunity tomake their views known pursuant to paragraph 2. In such an examina-
tion, the need to eliminate the trade distorting effects of injurious
dumping and to restore effective competition shall be given specialconsideration. Measures, as determined on the basis of the dumpingand injury found, may not be applied where the authorities, on thebasis of all the information submitted, can clearly conclude that it isnot in the Community interest to apply such measures.
2. Inorder to provide a soun d basis onwhich the authorities can
take account of all views and information in the decision as to whetheror not the imposition of measures is in the Community interest, thecomplainants, importers and their representative associations, represen-tative users and representative consumer organizations may, within the1996R0384 — EN — 20.03.2004 — 004.001 — 30
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time limits specified in the notice of initiation of the anti-dumping
investigation, make themselves known and provide information to theCommission. Such information, or appropriate summaries thereof, shall
be made available to the other parties specified inthis Article, an d they
shall be entitled to respond to such information.
3. The parties which have acted incon formity with paragraph 2 may
request a hearing. Such requests shall be granted when they aresubmitted withinthe time limits set inparagraph 2, an d whenthey setout the reasons, in terms of the Community interest, why the parties
should be heard.
4. The parties which have acted incon formity with paragraph 2 may
provide comments on the application of any provisional dutiesimposed. Such comments shall be received within one month of theapplication of such measures if they are to be taken into account andthey, or appropriate summaries thereof, shall be made available to otherparties who shall be entitled to respond to such comments.
5. The Commission shall examine the information which is properly
submitted and the extent to which it is representative and the results of
such analysis, together with an opinion on its merits, shall be trans-mitted to the Advisory Committee. The balance of views expressed inthe Committee shall be taken into account by the Commission in anyproposal made pursuant to Article 9.
6. The parties which have acted incon formity with paragraph 2 may
request the facts and considerations on which final decisions are likely
to be takento be made available to them. Such in formationshall be
made available to the extent possible and without prejudice to anysubsequent 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
Finalprovisions
This Regulationshall n ot preclude the applicationof:
(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)a nd
(EEC) No 2783/75 (3); this Regulationshall operate by way of
complement to those Regulations and in derogation from anyprovisions thereof which preclude the application of anti-dumpingduties;
(c) special measures, provided that such action does not run counter to
obligations pursuant to the GATT.
Article 23
Repealofexistinglegislationandtransitionalmeasures
Regulation(EC) No 3283/94 is hereby repealed, with the exceptionof
the first paragraph of Article 23 thereof.
However, the repeal of Regulation(EC) No 3283/94 shall n ot prejudice
the validity of proceedings initiated thereunder.
References to Regulation (EEC) No 2423/88 and to Regulation (EC)
No 3283/94 shall be construed as references to this Regulation, whereappropriate.1996R0384 — EN — 20.03.2004 — 004.001 — 31
(1) OJ No L 318, 20. 12. 1993, p. 18.
(2) OJ No L 281, 1. 11. 1975, p. 20. Regulationas amen ded 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. Regulationas last amen ded by Regulation
(EEC) No 3290/94 (OJ No L 349, 31. 12. 1994, p. 105).
▼B
Article 24
Entryintoforce
This Regulation shall enter into force on the day of its publication in
theOfficial Journal of the European Communities .
However, the time limits provided for inArticles 5 (9), 6 (9) an d 7 (1)
shall apply to complaints lodged under Article 5 (9) as from 1
September 1995 and investigations initiated pursuant to suchcomplaints.
This Regulation shall be binding in its entirety and directly applicable
inall Member States.1996R0384 — EN — 20.03.2004 — 004.001 — 32