Keywords

Summary



Keywords

1. Common commercial policy – Protection against dumping – Discretion of the institutions

2. Common commercial policy – Protection against dumping – Dumping margin

(Council Regulation No 384/96, Arts 2(3), 6(8) and 18)

3. Common commercial policy – Protection against dumping – Injury

(Council Regulation No 384/96, Arts 6(2) and (8), 16 and 18)

4. Common commercial policy – Protection against dumping – Investigation – Observance of the rights of the defence

(Council Regulation No 384/96, Art. 20)

5. Common commercial policy – Protection against dumping – Investigation – Discretion of the Commission

(Council Regulation No 384/96, Art. 6(2))

Summary

1. In the sphere of measures to protect trade the Community institutions enjoy a wide discretion by reason of the complexity of the economic, political and legal situations which they have to examine.

Review by the Community Courts of the institutions’ assessments must therefore be limited to verifying whether the relevant procedural rules have been complied with, whether the facts on which the disputed choice is based have been accurately stated and whether there has been a manifest error of appraisal or a misuse of powers.

(see paras 61-62)

2. Where the Community institutions have a wide power of appraisal, respect for the rights guaranteed by the Community legal order in administrative procedures is of even more fundamental importance. Those guarantees include, in particular, the duty of the competent institution to examine carefully and impartially all the relevant aspects of the individual case, the right of the person concerned to make his views known and to have an adequately reasoned decision.

Whilst in the area of commercial defence measures, and anti-dumping measures in particular, the Community Courts cannot intervene in the assessment reserved for the Community authorities, it is nevertheless for them to satisfy themselves that the institutions took account of all the relevant circumstances and appraised the facts of the matter with all due care, so that normal value may be regarded as having been determined in a reasonable manner. In that respect, it follows clearly from the wording of Article 2(3) of the basic anti-dumping Regulation No 384/96 that each of the methods of calculating the constructed normal value there listed must be applied in such a way as to keep the calculation reasonable, an idea which is also expressly mentioned in that paragraph 3.

It follows from those obligations of diligence and to examine all the relevant circumstances with care and impartiality that, save where there is a lack of cooperation within the meaning of Article 18 of the Basic regulation, the institutions must, where they cannot reasonably consider themselves sufficiently enlightened on a question which is directly relevant to determining the normal value, point that out clearly to the operator concerned. That obligation echoes the obligation, under Article 6(8) of the Basic regulation, to verify, as far as possible, the accuracy of the information supplied by the parties concerned and on which the conclusions of the institutions are based.

It follows that the Commission and the Council will have failed in their obligation to make a diligent investigation and to determine the normal value in a reasonable manner in circumstances where, first, in the initial stage of the anti-dumping proceeding the Commission clearly misinterpreted a reply from the undertaking concerned by holding that the production costs of the by-products of the products concerned were not to be deducted from the costs of producing the latter because they had been directly allocated to those by‑products, secondly, the Commission did not draw attention to the contradiction between the figures supplied by the undertaking and the treatment which it intended to apply to the costs of the by-products, and, thirdly, the Commission and the Council maintained that same treatment of those costs in the proposal for a definitive regulation and in the definitive regulation itself, refusing to make a careful reexamination of that question in dispute.

(see paras 63-64, 77-78, 85, 94, 96, 101, 108, 128, 130)

3. Although, in the context of the basic anti-dumping Regulation No 384/96, it is for the Commission, as the investigating authority, to determine whether the product involved in the anti-dumping procedure has been dumped and causes injury when put into free circulation in the Community, and it may not therefore offload part of the burden of proof which it bears in that regard, the fact remains that the Basic regulation does not give the Commission any power of investigation allowing it to compel the producers or exporters complained of to participate in the investigation or to produce information. In those circumstances, the Council and the Commission depend on the voluntary cooperation of the parties in supplying the necessary information within the time-limits set. In that context, the replies of those parties to the questionnaire referred to in Article 6(2) of the Basic regulation, and the subsequent on-the-spot verification which the Commission may carry out under Article 16 of that regulation, are essential to the operation of the anti-dumping procedure. The risk that, where the undertakings concerned in the investigation do not cooperate, the institutions may take into account information other than that supplied in reply to the questionnaire is inherent in the anti-dumping procedure and is designed to encourage the honest and diligent cooperation of those undertakings.

Therefore, whilst the Commission is required to verify, as far as possible, the accuracy of the information provided by the parties concerned and on which its conclusions are based, that obligation presupposes that the parties cooperate with the Commission within the meaning of Article 18 of the Basic regulation. Thus, according to that latter provision, where an interested party refuses access to, or otherwise does not provide, necessary information within the time‑limits laid down by the Basic regulation, or significantly impedes the investigation, provisional or final findings, affirmative or negative, may be made on the basis of the facts available. The same applies where it is found that any interested party has supplied false or misleading information.

(see paras 65, 87)

4. In interpreting the provisions of the basic anti-dumping Regulation No 384/96 concerning information of the parties concerned, account must be taken, in particular, of requirements flowing from the need to comply with the rights of the defence. Those requirements must be observed not only in the course of proceedings which may result in the imposition of penalties, but also in investigative proceedings prior to the adoption of anti-dumping regulations which, despite their general scope, may directly and individually affect the undertakings concerned and entail adverse consequences for them.

(see para. 66)

5. Whilst, in an anti-dumping procedure, it is justified to set time-limits for the undertakings concerned to send answers and information to the institutions, so as to ensure the smooth running of the procedure within the time-limits laid down in basic anti-dumping Regulation No 384/96, the institutions have a very wide discretion as to whether it is appropriate to take account of answers and information which have been sent to them out of time. In so far as taking them into account is not liable to infringe the procedural rights of the other parties and does not have the effect of unduly prolonging the procedure, it cannot be regarded as improper.

(see para. 67)