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

COMMISSION RECOMMENDATION NO 3004/77/ECSC

OF 28 DECEMBER 1977

MODIFYING RECOMMENDATION 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 RECENT TRENDS IN THE ECONOMY OF THE COMMUNITY AND IN THE CONDITIONS OF INTERNATIONAL TRADE HAVE RESULTED IN MORE FREQUENT RECOURSE TO COMMUNITY RULES ON DUMPING AND SUBSIDIZATION ;

WHEREAS , FROM THESE TRENDS IT APPEARS NECESSARY TO COMPLETE THE STATUTORY INSTRUMENTS AT THE COMMUNITY ' S DISPOSAL BY INTRODUCING INTO ITS RULES CERTAIN PROVISIONS CONTAINED IN THE AGREEMENT ON IMPLEMENTATION OF ARTICLE VI OF THE GENERAL AGREEMENT ON TARIFFS AND TRADE , KNOWN AS THE ANTI-DUMPING CODE , AND IN PARTICULAR THOSE PROVISIONS RELATING TO THE SIMULTANEOUS EXAMINATION OF DUMPING AND INJURY , SPORADIC DUMPING AND THE BASIC PRICE SYSTEM ;

WHEREAS , MOREOVER , THE EXPERIENCE ACQUIRED IN THE APPLICATION OF THE COMMUNITY RULES DEMONSTRATES THAT IT IS EXPEDIENT TO REVISE THEM IN CERTAIN RESPECTS IN ORDER TO STATE MORE PRECISELY OR TO SIMPLIFY DIFFERENT PROCEDURES , NOTABLY THOSE RELATING TO THE SUPPLY OF CERTAIN INFORMATION FOR THE MONITORING OF WRITTEN UNDERTAKINGS BY EXPORTERS AND TO THE REFUND OF DUTIES COLLECTED ,

MAKES THE FOLLOWING RECOMMENDATION :

ARTICLE 1

ARTICLE 11 ( 1 ) OF RECOMMENDATION 77/329/ECSC OF 15 APRIL 1977 ( 1 ) IS REPLACED BY THE FOLLOWING TEXT :

' WHERE THE INFORMATION RECEIVED BY THE COMMISSION SHOWS THAT PROTECTIVE MEASURES AGAINST DUMPING MAY BE NECESSARY THE COMMISSION , IN COOPERATION WITH THE MEMBER STATES , SHALL IMMEDIATELY COMMENCE EXAMINATION OF THE MATTER AT COMMUNITY LEVEL . SUCH EXAMINATION SHALL COVER BOTH DUMPING AND INJURY ; EXAMINATION OF THE LATTER SHALL START ON A DATE NOT LATER THAN THE EARLIEST DATE ON WHICH PROVISIONAL MEASURES MAY BE APPLIED . '

ARTICLE 2

THE TEXT OF ARTICLE 11 ( 4 ) OF THE ABOVEMENTIONED RECOMMENDATION IS REPLACED BY THE FOLLOWING TEXT :

' THE COMPLAINANT AND THE IMPORTERS AND EXPORTERS KNOWN TO BE CONCERNED , AS WELL AS THE REPRESENTATIVES OF THE EXPORTING COUNTRY , MAY SEE ALL INFORMATION THAT IS RELEVANT TO THE DEFENCE OF THEIR INTERESTS WHICH THE COMMISSION HAS USED IN THE INVESTIGATION AND WHICH IS NOT CONFIDENTIAL WITHIN THE MEANING OF ARTICLE 13 . TO THIS END , THEY SHALL ADDRESS A WRITTEN REQUEST TO THE COMMISSION , INDICATING THE INFORMATION REQUIRED . '

ARTICLE 3

THE TEXT OF ARTICLE 14 ( 2 ) ( D ) OF THE ABOVEMENTIONED RECOMMENDATION IS REPLACED BY THE FOLLOWING TEXT :

' IF THE COMMISSION CLOSES THE INVESTIGATION AFTER HAVING ACCEPTED THE UNDERTAKING OF EXPORTERS , THE LATTER SHALL AFTERWARDS FURNISH TO THE COMMISSION , FOR SUCH PERIOD OF TIME AND AT SUCH INTERVALS AS THE COMMISSION SHALL DETERMINE , THE FOLLOWING INFORMATION :

1 . PRICES , QUANTITIES AND THE CONDITIONS UNDER WHICH THE MERCHANDISE IS BEING SOLD TO THE COMMUNITY AND THE PRICES , QUANTITIES AND CONDITIONS UNDER WHICH THE MERCHANDISE IS BEING SOLD ON THE DOMESTIC MARKET OR , WHERE APPROPRIATE , THE FACTORS REFERRED TO IN THE FIRST AND SECOND INDENTS OF ARTICLE 3 ( 2 );

2 . INFORMATION REGARDING DISCOUNTS , COSTS OF CONSIGNMENT , PACKAGING COSTS AND OTHER CIRCUMSTANCES SURROUNDING SALES IN THE TWO MARKETS UNDER CONSIDERATION ;

3 . INFORMATION REGARDING DIFFERENCES BETWEEN MANUFACTURING COSTS WHERE A LIKE PRODUCT WITHIN THE MEANING OF ARTICLE 5 IS TAKEN FOR THE PURPOSES OF COMPARISON ;

4 . SUCH OTHER INFORMATION AS THE COMMISSION DEEMS APPROPRIATE .

THE COMMISSION , IN COOPERATION WITH THE MEMBER STATES , SHALL MONITOR THE OBSERVANCE OF THE UNDERTAKING . THE PROVISIONS OF ARTICLE 11 ( 3 ) AND ( 7 ) SHALL APPLY MUTATIS MUTANDIS . WHERE THE COMMISSION FINDS THAT THE UNDERTAKING IS BEING EVADED OR NO LONGER OBSERVED OR HAS BEEN WITHDRAWN IT SHALL IMMEDIATELY TAKE SUCH MEASURES AS MAY BE NECESSARY . '

ARTICLE 4

THE TEXT OF ARTICLE 19 ( 2 ) ( B ) OF THE ABOVEMENTIONED RECOMMENDATION SHALL BE SUPPLEMENTED BY THE FOLLOWING PROVISIONS :

' HOWEVER , WHEN THE COMMISSION DETERMINES :

( I ) EITHER THAT THERE IS A HISTORY OF DUMPING WHICH CAUSED MATERIAL INJURY OR THAT THE IMPORTER WAS , OR SHOULD HAVE BEEN , AWARE THAT THE EXPORTER PRACTICES DUMPING AND THAT SUCH DUMPING WOULD CAUSE MATERIAL INJURY , AND

( II ) THAT THE MATERIAL INJURY IS CAUSED BY SPORADIC DUMPING ( MASSIVE DUMPED IMPORTS OF A PRODUCT IN A RELATIVELY SHORT PERIOD ) TO SUCH AN EXTENT THAT , IN ORDER TO PRECLUDE IT RECURRING , IT APPEARS NECESSARY TO ASSESS AN ANTI-DUMPING DUTY RETROACTIVELY ON THOSE IMPORTS ,

THE DUTY MAY BE ASSESSED ON PRODUCTS WHICH WERE ENTERED FOR CONSUMPTION NOT MORE THAN 90 DAYS PRIOR TO THE DATE OF APPLICATION OF PROVISIONAL MEASURES . '

ARTICLE 5

ARTICLE 19 ( 3 ) OF THE ABOVEMENTIONED RECOMMENDATION IS REPLACED BY THE FOLLOWING PROVISIONS :

' 3 . ( A ) THE AMOUNT OF AN ANTI-DUMPING DUTY , WHETHER DEFINITIVE OR PROVISIONAL , SHALL NOT EXCEED THE MARGIN OF DUMPING ESTABLISHED OR , IN THE CASE OF PROVISIONAL DUTY , THE MARGIN OF DUMPING PROVISIONALLY DETERMINED ; IT SHOULD BE LESS THAN THE MARGIN IF SUCH LESSER DUTY WOULD BE ADEQUATE TO REMOVE THE INJURY .

( B ) IF SEVERAL IMPORTERS FROM ONE OR MORE COUNTRIES ARE INVOLVED , ANTI-DUMPING DUTIES MAY BE IMPOSED ON IMPORTS OF THE PRODUCT IN QUESTION FOUND TO HAVE BEEN DUMPED AND TO BE CAUSING INJURY FROM THE COUNTRY OR COUNTRIES CONCERNED , THE DUTY BEING EQUIVALENT TO THE AMOUNT BY WHICH THE EXPORT PRICE IS LESS THAN THE BASIC PRICE ESTABLISHED FOR THIS PURPOSE , NOT EXCEEDING THE LOWEST NORMAL PRICE OR COSTS IN THE SUPPLYING COUNTRY OR COUNTRIES WHERE NORMAL CONDITIONS OF COMPETITION ARE PREVAILING . '

ARTICLE 6

THE TEXT OF ARTICLE 19 ( 4 ) ( B ) OF THE ABOVEMENTIONED RECOMMENDATION IS REPLACED BY THE FOLLOWING TEXT :

' ( B ) FOR THIS PURPOSE , THE IMPORTER MAY WITHIN THREE MONTHS OF THE DATE ON WHICH THE PRODUCTS WERE ENTERED FOR CONSUMPTION , SUBMIT AN APPLICATION TO THE MEMBER STATE IN WHOSE TERRITORY THEY WERE SO ENTERED . THAT MEMBER STATE SHALL FORWARD THE APPLICATION TO THE COMMISSION , WHO SHALL EXAMINE ITS MERITS AND , AFTER CONSULTATION WITHIN THE COMMITTEE , DECIDE WHETHER AND TO WHAT EXTENT THE APPLICATION SHOULD BE GRANTED . '

ARTICLE 7

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

IT SHALL ENTER INTO FORCE IN RESPECT OF EACH MEMBER STATE WITH EFFECT FROM THE DATE OF ITS PUBLICATION IN THE OFFICIAL JOURNAL OF THE EUROPEAN COMMUNITIES .

DONE AT BRUSSELS , 28 DECEMBER 1977 .

FOR THE COMMISSION

ETIENNE DAVIGNON

MEMBER OF THE COMMISSION