Keywords

Summary



Keywords

1. Common commercial policy — Protection against dumping — Discretion of the institutions — Judicial review — Limits

2. Common commercial policy — Protection against dumping — Dumping margin — Determination of normal value — Use of constructed value — Taking into account of production costs — Calculation of costs on the basis of records — Costs affected by a distortion of the market — Adjustment — Lawfulness — Criteria

(Council Regulations No 384/96, Art. 2(3) and (5), and No 1225/2009, Art. 2(3) and (5))

3. Common commercial policy — Protection against dumping — Dumping margin — Rules relating to the calculation of the dumping margin, contained in the 1994 GATT Anti-Dumping Agreement — Transposition into EU law by the basic anti-dumping regulation — Interpretation of Article 2(5) of that regulation in the light of the anti-dumping agreement in question

(Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade, ‘the 1994 Anti-Dumping Agreement’, Art. 2.2.1.1; Council Regulations No 384/96, Art. 2(5), and No 1225/2009, Art. 2(5))

4. Common commercial policy — Protection against dumping — Decision on the determination of normal value — Statement of reasons — Taking into account the information disclosed to the undertakings concerned during the administrative procedure

(Art. 296 TFEU; Council Regulations No 384/96, Art. 2, and No 1225/2009, Art. 2)

5. Common commercial policy — Protection against dumping — Dumping margin — Asymmetry between the normal value and the export price affecting their comparability — Adjustments — Taking into account the commissions paid in respect of the sales

(Council Regulations No 384/96, Art. 2(10)(i), and No 1225/2009, Art. 2(10)(i))

Summary

1. See the text of the decision.

(see paras 31, 32)

2. The first sentence of Article 2(3) of basic anti-dumping Regulation No 384/96 (now the first subparagraph of Article 2(3) of Regulation No 1225/2009) lays down the method for calculating constructed normal value when there are no or insufficient sales of the like product in the ordinary course of trade, or where because of the particular market situation such sales do not permit a proper comparison. The first sentence of Article 2(5) of that regulation (now the first subparagraph of Article 2(5) of Regulation No 1225/2009), provides that constructed normal value is normally calculated on the basis of the cost of production. In such a case, costs are normally calculated on the basis of the records of the party under investigation. However, under that provision, records are not a basis for calculating normal value if the costs associated with the production of the product under investigation are not reasonably reflected in those records.

That is the case if the cost of producing the product concerned is affected by a distortion of the domestic market, as when the price of the product is regulated in the exporting country and is not the result of market forces. In that case, the cost resulting from the records cannot be regarded as reasonable and the institutions may adjust it by having recourse to other sources from markets which the institutions regarded as more representative. Article 2(5) of the regulation in question allows the institutions, under certain conditions, to take into account information from markets other than that of the exporting country or the market of origin.

(see paras 45, 51, 53, 58, 60-62)

3. In view of their nature and structure, the World Trade Organisation (WTO) agreements are not in principle among the rules in the light of which the Courts of the European Union are to review the legality of measures of the EU institutions under the first paragraph of Article 230 EC. However, where the European Union intended to implement a particular obligation assumed in the context of the WTO, or where the EU measure refers expressly to precise provisions of the WTO agreements, it is for the Courts of the European Union to review the legality of the EU measure in question in the light of the WTO rules.

In that regard, it is apparent from recital 5 to basic anti-dumping Regulation No 384/96 that the purpose of that regulation is, inter alia, to transpose into EU law as far as possible the new and detailed rules contained in the 1994 Anti-Dumping Agreement, which include, in particular, those relating to the calculation of the dumping margin. The European Union therefore intended, by means of Article 2(5) of that regulation (now Article 2(5) of Regulation No 1225/2009), to implement the particular obligations laid down by Article 2.2.1.1 of the 1994 Anti-Dumping Agreement. It follows that Article 2(5) of the basic anti-dumping regulation must, so far as possible, be interpreted in the light of Article 2.2.1.1 of that agreement.

In addition, it is apparent that the wording of Article 2.2.1.1 of the 1994 Anti-Dumping Agreement does not differ significantly from the text of the first sentence of the first subparagraph of Article 2(5) of the basic anti-dumping regulation (now the first subparagraph of Article 2(5) of Regulation No 1225/2009) which seeks to ensure that records are kept in accordance with the generally accepted accounting principles of the exporting country and reasonably reflect the costs associated with the production and sale of the product under consideration.

By contrast, the provision mentioned in the second sentence of the first subparagraph of Article 2(5) of the basic anti-dumping regulation (now the second subparagraph of Article 2(5) Regulation No 1225/2009) is not mentioned in the 1994 Anti-Dumping Agreement and cannot therefore be interpreted in the light of that agreement.

(see paras 74-78, 81, 82)

4. See the text of the decision.

(see para. 112)

5. It is apparent from both the wording and the scheme of Article 2(10) of basic anti-dumping Regulation No 384/96 (now Article 2(10) of Regulation No 1225/2009) that an adjustment to the export price or the normal value may only be made to take account of differences in factors which affect the prices and therefore their comparability. In other words, the purpose of an adjustment is to re-establish the symmetry between normal value and export price.

In particular, as regards the taking into consideration of commissions paid in respect of sales, as provided for in Article 2(10)(i) of the basic anti-dumping regulation (now Article 2(10)(i) of Regulation No 1225/2009), that provision lays down that those commissions also include the mark-up received by a trader of the product or the like product if the functions of such a trader are similar to those of an agent working on a commission basis. Therefore, Article 2(10)(i) of the basic anti-dumping regulation allows an adjustment to be made not only for differences in commissions paid in respect of the sales under consideration, but also for the mark-up received by traders of the product if they carry out functions which are similar to those of an agent working on a commission basis.

(see paras 124, 125, 127)