Keywords

Summary



Keywords

1 Common commercial policy - Protection against dumping - Europe agreement between the European Communities and their Member States, on the one hand, and Romania, on the other - Procedural rules - Commission under an obligation to inform the Association Council of the opening of an anti-dumping proceeding - Whether the Commission is obliged to give notification a second time before adopting a provisional regulation - No such obligation

(Europe Agreement between the European Communities and their Member States and Romania, Art. 34(3)(b); Council Regulation No 384/96)

2 Common commercial policy - Protection against dumping - Dumping margin - Determination of the normal value - Whether sales below unit production cost are to be regarded as made in substantial quantities - Criteria of assessment - Alternative criteria - Provisions of the basic anti-dumping regulation compatible with the GATT anti-dumping code

(Council Regulation No 384/96, Art. 2(4), third para.; Agreement on the Implementation of Article VI of the General Agreement on Tariffs and Trade (`the 1994 Anti-dumping Code'), Article 2.2.1 and Explanatory Note 5)

3 Common commercial policy - Protection against dumping - Dumping margin - Determination of the normal value - Choice of calculation method - Discretion of the institutions - Observance of the principle of proportionality - Judicial review - Limits

(Council Regulation No 384/96)

4 Common commercial policy - Protection against dumping - Dumping margin - Comparison between the normal value and the export price - Basic anti-dumping regulation to be interpreted in the light of the GATT anti-dumping code - Limits - Whether the institutions are under an obligation to explain why their chosen method reflects the real extent of the dumping better than the symmetrical methods - No such obligation

(Council Regulation No 384/96, Art. 2(11); Agreement on the Implementation of Article VI of the General Agreement on Tariffs and Trade (`the 1994 Anti-dumping Code'), Article 2.4.2)

5 Acts of the institutions - Statement of reasons - Obligation - Scope - Regulations imposing anti-dumping duties

(EC Treaty, Art. 190 (now Art. 253 EC))

6 Common commercial policy - Protection against dumping - Assessment by the institutions of the situation of the Community industry - Judicial review - Limits

7 Common commercial policy - Protection against dumping - Anti-dumping proceeding - Rights of the exporters to be heard - Right to be informed, through the final disclosure, of the considerations relating to the Community interest - Whether incompatible with a provision of the basic anti-dumping regulation - No incompatibility

(Council Regulation No 384/96, Art. 20(2))

Summary

1 Although, in order to comply with Article 34(3)(b) of the Europe Agreement between the European Communities and their Member States, on the one hand, and Romania, on the other, the Community must disclose to the Association Council in good time all the relevant information to enable it to seek a solution acceptable to both parties, that provision does not require the Commission to refer a matter to the Association Council a second time before adopting a provisional anti-dumping regulation.

Under the system provided for by the basic anti-dumping regulation, Regulation No 384/96, which gives the Council sole power to adopt definitive measures, it is sufficient if such disclosure occurs no later than 30 days before adoption of a final regulation imposing anti-dumping duties.

2 For the purposes of determining the normal value of a product, the third subparagraph of Article 2(4) of the basic anti-dumping regulation, Regulation No 384/96, must be construed as laying down two alternative criteria for determining whether sales below unit production cost are to be regarded as made in substantial quantities. It is sufficient if one of those criteria is fulfilled for such sales to be regarded as being made in substantial quantities.

That interpretation, which is based on the express terms of that provision, is not incompatible with Article 2.2.1 of the 1994 GATT Anti-dumping Code, read in conjunction with explanatory note 5 thereto.

3 The choice between the different methods of calculation indicated in the basic anti-dumping regulation, Regulation No 384/96, requires an appraisal of complex economic situations, which means that review by the Community judicature of the observance of the principle of proportionality is limited, in that sphere, to determining whether the method chosen is manifestly inappropriate having regard to the objective pursued.

4 Although the provisions of the basic anti-dumping regulation, Regulation No 384/96, must be interpreted in the light of the 1994 Anti-dumping Code, the rules governing anti-dumping measures are contained in that Regulation alone.

As regards the method chosen for determining the dumping margin, since Article 2.4.2 of the GATT Anti-dumping Code cannot, as such, be regarded as constituting a rule which is to be applied, and since Article 2(11) of the basic anti-dumping Regulation does not mention any specific obligation to explain why a comparison of the weighted average normal value with the prices of individual exports reflects the real extent of the dumping better than the symmetrical methods, the Community institutions cannot be criticised for failing to give such an explanation.

5 The statement of reasons required by Article 190 of the EC Treaty (now Article 253 EC) must show clearly and unequivocally the reasoning of the Community authority which adopted the contested measure, so as to inform the persons concerned of the justification for the measure adopted and thus enable them to defend their rights and the Community judicature to exercise its powers of review. The extent of the obligation to state reasons must be assessed in the light of the context and the procedure in which the contested regulation was adopted and the body of legal rules governing the field concerned.

The statement of reasons for a regulation imposing definitive anti-dumping duties must be appraised having regard, in particular, to the information disclosed to the exporters by the Community institutions and to their observations during the administrative procedure.

Moreover, the Council is not required to give specific reasons explaining why it did not take account of the various arguments put forward by the parties in the course of the administrative procedure. It is sufficient for the regulation to contain a clear explanation of the main factors considered in the analysis of the situation of the Community industry, provided that that explanation is capable of clarifying the reasons for which the Council rejected the arguments on that point put forward by the parties in the administrative procedure.

6 An analysis of the situation of the Community industry, undertaken in the course of an anti-dumping proceeding, requires the institutions to appraise complex economic situations, and accordingly judicial review must be limited to verifying whether the rules of procedure have been complied with, whether the facts have been accurately stated and whether there has been a manifest error of appraisal or a misuse of powers.

7 Article 20(2) of the basic anti-dumping regulation, Regulation No 384/96, concerning the disclosure of information to the parties, must be construed - in the light of the general scheme of the basic regulation and the general principles of Community law - to the effect that the exporters, who are among the parties who may request final disclosure, have a right to be informed, at least in brief, of the considerations relating to the Community interest.

The right to be heard, to which that provision gives expression, constitutes one of the fundamental rights recognised by Community law and includes the right to be informed of the main facts and considerations on the basis of which it is intended to recommend the imposition of definitive anti-dumping duties. However, those facts and considerations relate not only to determination of the existence of dumping and of injury but also to appraisal of the Community interest.

That interpretation of Article 20 of the basic Regulation is not incompatible with Article 21 thereof, relating to Community interest. The fact that Article 21(3), (4) and (6) grants the parties mentioned therein (complainants, importers and their representative associations, and the representative associations of users and consumers) a specific right to be heard in relation to the Community interest does not mean that that provision has the effect of depriving other interested parties, in particular exporters, of the right to be heard on that point in the context of Article 20(1) or (2).