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( 1 ) OJ NO L 114 , 5 . 5 . 1977 , P . 6 .

( 2 ) OJ NO L 352 , 31 . 12 . 1977 , P . 13 .

COMMISSION RECOMMENDATION NO 158/79/ECSC

OF 29 JANUARY 1979

AMENDING RECOMMENDATIONS 77/329/ECSC ON PROTECTION AGAINST DUMPING OR THE GRANTING OF BOUNTIES OR SUBSIDIES BY COUNTRIES WHICH ARE NOT MEMBERS OF THE EUROPEAN COAL AND STEEL COMMUNITY

THE COMMISSION OF THE EUROPEAN

COMMUNITIES ,

HAVING REGARD TO THE TREATY ESTABLISHING THE EUROPEAN COAL AND STEEL COMMUNITY , AND IN PARTICULAR ARTICLES 74 AND 86 THEREOF ,

WHEREAS THE COMMUNITY HAS ADOPTED COMMON RULES ON PROTECTION AGAINST DUMPING OR THE GRANTING OF BOUNTIES OR SUBSIDIES BY COUNTRIES WHICH ARE NOT MEMBERS OF THE COMMUNITY AND WHEREAS , FOR PRODUCTS TO WHICH THE TREATY ESTABLISHING THE EUROPEAN COAL AND STEEL COMMUNITY RELATES , THESE RULES ARE CONTAINED IN COMMISSION RECOMMENDATION 77/329/ECSC ( 1 ) AS AMENDED BY RECOMMENDATION NO 3004/77/ECSC ( 2 );

WHEREAS THESE COMMUNITY RULES ARE , IN LARGE MEASURE , TRANSPOSED FROM THE AGREEMENT ON IMPLEMENTATION OF ARTICLE VI OF THE GENERAL AGREEMENT ON TARIFFS AND TRADE , KNOWN AS THE ANTI-DUMPING CODE ;

WHEREAS THE EXPERIENCE ACQUIRED IN THE APPLICATION OF CERTAIN OF THESE RULES DEMONSTRATES THAT IT IS EXPEDIENT TO CLARIFY CERTAIN CONCEPTS WHICH ARE CONTAINED IN THE SAID RULES , TAKING ACCOUNT INTER ALIA OF THE ESTABLISHED PRACTICE OF THE COMMUNITY ' S MAJOR TRADING PARTNERS ;

WHEREAS , IN PARTICULAR , IT IS NECESSARY TO DEFINE MORE PRECISELY THE METHOD OF CALCULATION OF CONSTRUCTED VALUE TO BE USED IN SITUATIONS WHEN , BECAUSE OF THE PARTICULAR MARKET SITUATION , THE PRICE OF THE LIKE PRODUCT ON THE DOMESTIC MARKET DOES NOT PERMIT A PROPER COMPARISON ;

WHEREAS IT IS NECESSARY TO CLARIFY THAT , IN THE CASE OF IMPORTS FROM STATE-TRADING COUNTRIES , NORMAL VALUE IS DETERMINED ON THE BASIS OF PRICES OR COSTS OF A LIKE PRODUCT IN A MARKET ECONOMY COUNTRY OR , IF NECESSARY , FROM SUCH PRICES OR COSTS IN THE COMMUNITY ;

WHEREAS , WITH REGARD TO INJURY , IT IS NECESSARY TO CLARIFY THE RULES REGARDING THE DETERMINATION OF INJURY AND IN PARTICULAR TO ENSURE THAT INJURIES CAUSED BY OTHER FACTORS MAY NOT BE ATTRIBUTED TO DUMPING BUT MUST BE ISOLATED THEREFROM ;

WHEREAS IT IS NECESSARY FOR PRACTICAL REASONS TO MODIFY CERTAIN OF THE RULES GOVERNING THE EXTENSION OF PROVISIONAL ANTI-DUMPING MEASURES ,

FORMULATES THE FOLLOWING RECOMMENDATION :

ARTICLE 1

RECOMMENDATION 77/329/ECSC IS AMENDED AS FOLLOWS :

1 . THE SECOND INDENT OF ARTICLE 3 ( 2 ) SHALL READ AS FOLLOWS :

' - THE CONSTRUCTED VALUE , THAT IS TO SAY THE COST OF PRODUCTION IN THE COUNTRY OF ORIGIN PLUS A REASONABLE AMOUNT FOR GENERAL EXPENSES AND FOR PROFITS ; AS A GENERAL RULE THE ADDITION FOR PROFIT SHALL NOT EXCEED THE PROFIT NORMALLY REALIZED ON SALES OF PRODUCTS OF THE SAME GENERAL CATEGORY IN THE DOMESTIC MARKET OF THE COUNTRY OF ORIGIN . IF NO SUCH PROFIT IS REALIZED THE COMMISSION SHALL DETERMINE THE ADDITION ON ANY REASONABLE BASIS USING THE BEST EVIDENCE AVAILABLE . '

2 . ARTICLE 3 ( 6 ) SHALL READ AS FOLLOWS :

' 6 . IN THE CASE OF IMPORTS FROM COUNTRIES WHERE TRADE IS ON A BASIS OF NEAR OR TOTAL MONOPOLY AND WHERE DOMESTIC PRICES ARE FIXED BY THE STATE , ACCOUNT MAY BE TAKEN OF THE FACT THAT AN EXACT COMPARISON BETWEEN THE EXPORT PRICE OF A PRODUCT TO THE COMMUNITY AND THE DOMESTIC PRICE IN THAT COUNTRY IS NOT NORMALLY APPROPRIATE . IN SUCH CASES NORMAL VALUE SHALL BE DETERMINED ON THE BASIS OF EITHER :

( A ) THE PRICES AT WHICH A LIKE PRODUCT OF A MARKET-ECONOMY COUNTRY OR COUNTRIES IS SOLD EITHER ( I ) FOR CONSUMPTION IN THE DOMESTIC MARKET OF THAT COUNTRY OR COUNTRIES OR ( II ) TO OTHER COUNTRIES , INCLUDING THE COMMUNITY ; OR

( B ) THE CONSTRUCTED VALUE OF A LIKE PRODUCT IN A MARKET-ECONOMY COUNTRY OR COUNTRIES .

IF NEITHER PRICES NOR CONSTRUCTED VALUE AS ESTABLISHED UNDER ( A ) OR ( B ) ABOVE PROVIDE AN ADEQUATE BASIS FOR DETERMINATION OF NORMAL VALUE , THEN THE PRICES OR CONSTRUCTED VALUE AS DETERMINED FROM THE SALES OR PRODUCTION COSTS IN THE COMMUNITY SHALL BE USED . '

3 . PARAGRAPHS 1 , 2 AND 3 OF ARTICLE 4 SHALL READ AS FOLLOWS :

' 1 . THE EVALUATION OF THE EFFECTS OF THE DUMPED IMPORTS ON THE INDUSTRY IN QUESTION SHALL BE BASED ON EXAMINATION OF ALL FACTORS HAVING A BEARING ON THE STATE OF THE INDUSTRY IN QUESTION , SUCH AS DEVELOPMENTS AND PROSPECTS WITH REGARD TO TURNOVER , MARKET SHARE , PROFITS , PRICES ( INCLUDING THE EXTENT TO WHICH THE DELIVERED , DUTY-PAID PRICE IS LOWER OR HIGHER THAN THE MOST REPRESENTATIVE COMPARABLE PRICE OF THE LIKE PRODUCT PREVAILING IN THE ORDINARY COURSE OF TRADE WITHIN THE COMMUNITY ), EMPLOYMENT , VOLUME OF DUMPED AND OTHER IMPORTS , UTILIZATION OF CAPACITY OF COMMUNITY INDUSTRY , PRODUCTIVITY , AND RESTRICTIVE TRADE PRACTICES . NO ONE OR MORE OF THESE FACTORS CAN NECESSARILY GIVE DECISIVE GUIDANCE .

2 . IN ORDER TO ESTABLISH WHETHER DUMPED IMPORTS ARE CAUSING INJURY , ALL OTHER FACTORS WHICH INDIVIDUALLY OR IN COMBINATION MAY BE ADVERSELY AFFECTING THE COMMUNITY INDUSTRY SHALL BE EXAMINED . THE FACTORS TO BE CONSIDERED ARE , AMONG OTHERS , THE VOLUME AND PRICES OF UNDUMPED IMPORTS OF THE PRODUCT IN QUESTION , COMPETITION BETWEEN THE COMMUNITY PRODUCERS THEMSELVES , CONTRACTION IN DEMAND DUE TO SUBSTITUTION OF OTHER PRODUCTS OR TO CHANGES IN CONSUMER TASTES AND EXPORT PERFORMANCE .

3 . ( A ) NO INJURY CAN BE ATTRIBUTED TO DUMPING UNLESS THE DUMPED IMPORTS ARE DEMONSTRABLY THE PRINCIPAL CAUSE OF SUCH INJURY . FOR THE PURPOSE OF SUCH DEMONSTRATION THE CONSEQUENCES OF THE DUMPING POSITIVELY FOUND TO BE SUCH SHALL BE WEIGHED AGAINST EACH OF THE OTHER KNOWN FACTORS WHICH AT THE SAME TIME MAY BE INJURING THE INDUSTRY . THE INJURIES CAUSED BY SUCH OTHER FACTORS MUST NOT BE ATTRIBUTED TO THE DUMPED IMPORTS .

( B ) A DETERMINATION OF INJURY SHALL IN ALL CASES BE BASED ON POSITIVE FINDINGS AND NOT MERELY ON ALLEGATION , CONJECTURE OR REMOTE POSSIBILITY . IN THE CASE OF THREAT OF INJURY THE CHANGE IN CIRCUMSTANCES WHICH WOULD CREATE A SITUATION IN WHICH DUMPING WOULD CAUSE INJURY MUST BE CLEARLY FORESEEN AND IMMINENT . '

4 . ARTICLE 16 ( 1 ) SHALL READ AS FOLLOWS :

' 1 . WITHOUT PREJUDICE TO THE PROVISIONS OF ARTICLE 18 , PROVISIONAL MEASURES SHALL CONTINUE TO OPERATE FOR A PERIOD OF THREE MONTHS . BEFORE THIS PERIOD EXPIRES , THE COMMISSION SHALL EITHER DECIDE ON COMMUNITY INTERVENTION WITHIN THE MEANING OF ARTICLE 17 OR , IF EXPORTERS AND IMPORTERS REPRESENTING A SIGNIFICANT PROPORTION OF THE TRADE INVOLVED SO REQUEST OR DO NOT OBJECT AND IF THE EXAMINATION IS STILL NOT TERMINATED , DECIDE ON THE EXTENSION OF THE PROVISIONAL MEASURES FOR A MAXIMUM OF THREE MONTHS . '

ARTICLE 2

THIS RECOMMENDATION SHALL BE NOTIFIED TO THE MEMBER STATES AND PUBLISHED IN THE OFFICIAL JOURNAL OF THE EUROPEAN COMMUNITIES .

IT SHALL ENTER INTO FORCE ON 30 JANUARY 1979 .

DONE AT BRUSSELS , 29 JANUARY 1979 .

FOR THE COMMISSION

WILHELM HAFERKAMP

VICE-PRESIDENT