Keywords

Summary



Keywords

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1 . ACTION FOR ANNULMENT - NATURAL OR LEGAL PERSONS - MEASURES OF DIRECT AND INDIVIDUAL CONCERN TO THEM - REGULATION IMPOSING ANTI-DUMPING DUTIES - PRODUCERS AND EXPORTERS FROM NON-MEMBER COUNTRIES

( EEC TREATY, ART . 173, SECOND PARAGRAPH; COUNCIL REGULATION NO 3017/79 )

2 . COMMON COMMERCIAL POLICY - PROTECTION AGAINST DUMPING - DUMPING MARGIN - DETERMINATION OF THE NORMAL VALUE AND THE EXPORT PRICE - CHOICE OF METHOD OF CALCULATION - DISCRETION OF THE COMMISSION - REVIEW BY THE COURT - LIMITS - CHANGE IN THE METHOD OF CALCULATION - IMPOSSIBLE TO RELY ON THE PRINCIPLE THAT LEGITIMATE EXPECTATIONS MUST BE PROTECTED

( COUNCIL REGULATION NO 3017/79, ART . 2 )

3 . COMMON COMMERCIAL POLICY - PROTECTION AGAINST DUMPING - DUMPING MARGIN - DETERMINATION OF THE NORMAL VALUE AND THE EXPORT PRICE - ALLOWANCES INTENDED TO ENABLE A FAIR COMPARISON TO BE MADE - CONDITIONS OF APPLICATION

( COUNCIL REGULATION NO 3017/79, ART . 2*(8 ), ( 9 ) AND ( 10 )*)

4 . COMMON COMMERCIAL POLICY - PROTECTION AGAINST DUMPING - OFFER OF PRICE UNDERTAKINGS - ACCEPTANCE - DISCRETION OF THE INSTITUTIONS

( COUNCIL REGULATION NO 3017/79, ART . 10 )

5 . COMMON COMMERCIAL POLICY - PROTECTION AGAINST DUMPING - COURSE OF THE INVESTIGATION - PRICE INCREASES MADE SPONTANEOUSLY BUT AFTER THE END OF THE PERIOD COVERED BY THE INVESTIGATION - NO INFLUENCE ON THE FIXING OF DEFINITIVE ANTI-DUMPING DUTIES - GROUND FOR REVIEW OR FOR REFUND OF THE DUTY COLLECTED

( COUNCIL REGULATION NO 3017/79, ARTS 14 AND 15 )

Summary

1 . MEASURES IMPOSING ANTI-DUMPING DUTIES PURSUANT TO REGULATION NO 3017/79 ARE LIABLE TO BE OF DIRECT AND INDIVIDUAL CONCERN WITHIN THE MEANING OF THE SECOND PARAGRAPH OF ARTICLE 173 OF THE TREATY TO THOSE PRODUCERS AND EXPORTERS WHO ARE ABLE TO ESTABLISH THAT THEY WERE IDENTIFIED IN THE MEASURES ADOPTED BY THE COMMISSION OR COUNCIL OR WERE CONCERNED BY THE PRELIMINARY INVESTIGATIONS .

HOWEVER, WHERE THE CONTESTED REGULATION IMPOSES DIFFERENT ANTI-DUMPING DUTIES ON A SERIES OF NAMED MANUFACTURERS OR EXPORTERS ESTABLISHED IN NON-MEMBER COUNTRIES, AND ALSO ON OTHER UNDERTAKINGS WHICH ARE NOT NAMED BUT WHICH PURSUE THE SAME ACTIVITIES IN THOSE COUNTRIES, AN UNDERTAKING IS INDIVIDUALLY CONCERNED ONLY BY THOSE PROVISIONS WHICH IMPOSE ON IT A SPECIFIC ANTI-DUMPING DUTY AND DETERMINE THE AMOUNT THEREOF, AND NOT BY THOSE PROVISIONS WHICH IMPOSE ANTI-DUMPING DUTIES ON OTHER UNDERTAKINGS .

2 . ARTICLE 2 OF REGULATION NO 3017/79 DOES NOT REQUIRE THAT IN THE FRAMEWORK OF THE PROCEDURE FOR ESTABLISHING ANTI-DUMPING DUTIES THE SAME METHOD SHOULD BE USED TO CALCULATE THE NORMAL VALUE AND THE EXPORT PRICE, A COMPARISON OF WHICH ENABLES THE DUMPING MARGIN TO BE DETERMINED .

THE CHOICE BETWEEN THE VARIOUS CALCULATION METHODS SPECIFIED IN ARTICLE 2*(13)*(B ) OF REGULATION NO 3017/79 REQUIRES AN APPRAISAL OF COMPLEX ECONOMIC SITUATIONS, IN RESPECT OF WHICH THE COURT MUST LIMIT ITS REVIEW TO VERIFYING WHETHER THE RELEVANT PROCEDURAL RULES HAVE BEEN COMPLIED WITH, WHETHER THE FACTS TAKEN INTO ACCOUNT ARE ACCURATE AND WHETHER THERE HAS BEEN A MANIFEST ERROR OF APPRAISAL OR A MISUSE OF POWERS .

UNLIKE THE WEIGHTED AVERAGE METHOD OF CALCULATING THE EXPORT PRICE, THE TRANSACTION-BY-TRANSACTION METHOD MAKES IT POSSIBLE TO PREVENT CERTAIN MANOEUVRES IN WHICH DUMPING IS DISGUISED BY CHARGING DIFFERENT PRICES, SOME ABOVE THE NORMAL VALUE AND SOME BELOW IT . THE APPLICATION OF THE TRANSACTION-BY-TRANSACTION METHOD IN SUCH A SITUATION CANNOT, IN THE LIGHT OF THE PURPOSE OF THE IMPOSITION OF ANTI-DUMPING DUTIES, CONSTITUTE A MANIFEST ERROR IN THE APPRAISAL OF THE FACTS .

WHERE THE INSTITUTIONS ENJOY A MARGIN OF DISCRETION IN THE CHOICE OF THE MEANS NEEDED TO ACHIEVE THEIR POLICIES, TRADERS CANNOT CLAIM TO HAVE A LEGITIMATE EXPECTATION THAT THE MEANS ORIGINALLY CHOSEN WILL BE MAINTAINED, SINCE THESE MAY BE ALTERED BY THE INSTITUTIONS IN THE EXERCISE OF THEIR POWERS; THUS IT WAS NOT NECESSARY TO GIVE ADVANCE NOTICE THAT THE ABOVEMENTIONED METHOD WAS TO REPLACE THE METHOD PREVIOUSLY ADOPTED SO THAT THE TRADERS CONCERNED MIGHT REORGANIZE THEIR COMMERCIAL PRACTICES .

3 . THE ALLOWANCES MADE UNDER ARTICLE 2*(10)*(C ) OF REGULATION NO 3017/79 ARE DIFFERENT AS REGARDS BOTH THEIR PURPOSE AND THE CONDITIONS IN WHICH THEY ARE APPLIED FROM THE ALLOWANCES MADE IN THE CONSTRUCTION OF THE EXPORT PRICE UNDER ARTICLE 2*(8)*(B ). ACCORDING TO ARTICLE 2*(8)*(B ), THE EXPORT PRICE IS TO BE CONSTRUCTED WHERE, BECAUSE THE EXPORTER AND THE IMPORTER ARE ASSOCIATED, THE PRICE AGREED FOR EXPORT IS UNRELIABLE; IN THAT CASE, THE EXPORT PRICE MUST BE CONSTRUCTED ON THE BASIS OF THE PRICE AT WHICH THE IMPORTED PRODUCT IS FIRST RESOLD TO AN INDEPENDENT BUYER . THE ADJUSTMENTS MADE UNDER ARTICLE 2*(10)*(C ) ARE INTENDED TO RECTIFY THE EXPORT PRICE OR THE NORMAL VALUE CALCULATED PURSUANT TO ARTICLE 2*(3 ) TO ( 8 ) BY REFERENCE TO OBJECTIVE FACTORS WHICH CORRESPOND TO THE PARTICULAR FEATURES OF EACH MARKET AND HAVE A VARYING IMPACT ON CONDITIONS AND TERMS OF SALE, THUS AFFECTING PRICE COMPARABILITY . UNLIKE THE ADJUSTMENTS PROVIDED FOR BY ARTICLE 2*(8 ), THE ADJUSTMENTS MADE UNDER ARTICLE 2*(10 ) ARE NOT MADE AUTOMATICALLY, AND A PARTY CLAIMING THEM MUST PROVE THAT THEY ARE NECESSARY TO ENSURE PRICE COMPARABILITY .

4 . NO PROVISION OF REGULATION NO 3017/79 COMPELS THE COMMUNITY INSTITUTIONS TO ACCEPT PRICE UNDERTAKINGS OFFERED BY TRADERS CONCERNED BY AN INVESTIGATION PRIOR TO THE IMPOSITION OF ANTI-DUMPING DUTIES . ON THE CONTRARY, IT IS CLEAR FROM ARTICLE 10 OF THE REGULATION THAT IT IS FOR THE INSTITUTIONS, IN THE EXERCISE OF THEIR DISCRETIONARY POWER, TO DETERMINE WHETHER SUCH UNDERTAKINGS ARE ACCEPTABLE .

THE REFUSAL TO ACCEPT UNDERTAKINGS CANNOT BE CRITICIZED BY THE COURT UNLESS THE REASONS ON WHICH IT IS BASED EXCEED THE MARGIN OF DISCRETION CONFERRED UPON THE INSTITUTIONS .

5 . IT IS IMPOSSIBLE TO ACCEPT THAT THE ANTI-DUMPING PROCEEDING MAY NOT BE CONCLUDED OR THAT A DECISION TO IMPOSE A DEFINITIVE ANTI-DUMPING DUTY MAY NOT BE ADOPTED MERELY BECAUSE THE COMPANIES WHICH ARE SUBJECT TO THE PROVISIONAL ANTI-DUMPING DUTY HAVE MADE VOLUNTARY PRICE INCREASES AFTER THE END OF THE SPECIFIC AND NECESSARILY LIMITED PERIOD COVERED BY THE INVESTIGATION .

SUCH INCREASES MAY, WHERE APPROPRIATE, JUSTIFY A REVIEW PURSUANT TO ARTICLE 14 OF REGULATION NO 3017/79 OR RESULT IN THE REFUNDING OF

THE DUTY COLLECTED, IN ACCORDANCE WITH ARTICLE 15 .