Keywords

Summary



Keywords

1. Common commercial policy — Protection against dumping — Expiry review procedure — Retention of a measure — Conditions — Existence of a Community interest — (Council Regulation No 384/96, Arts 9(4), 11(2), (5) and (9), and 21)

2. Common commercial policy — Protection against dumping — Assessment of the Community interest — Scope of the duty to state reasons — Judicial review — Limits — (Council Regulation No 384/96, Art. 21)

3. Common commercial policy — Protection against dumping — Expiry review procedure — Assessment of the Community interest — Taking account of evidence from sources other than those referred to in Article 21(2) of the basic regulation on anti-dumping — Whether permitted — (Council Regulation No 384/96, Art. 21(2))

4. Common commercial policy — Protection against dumping — Expiry review procedure — Assessment of the Community interest — Need to reassess the various interests involved — (Council Regulation No 384/96, Art. 21)

5. Common commercial policy — Protection against dumping — Expiry review procedure — Commission ' s discretion — Assessment of the Community interest — Taking account of data relating to the period prior to the introduction of the anti-dumping measures — Whether permitted — (Council Regulation No 384/96, Art. 21)

6. Common commercial policy — Protection against dumping — Expiry review procedure — Assessment of the Community interest — Sending questionnaires — Taking account of replies sent after the expiry of the deadline — Whether permitted — (Council Regulation No 384/96, Art. 21(2) to (5))

7. Common commercial policy — Protection against dumping — Adoption of measures or expiry review procedure — Assessment of the Community interest — Criteria for assessing whether the information provided by users is representative — (Council Regulation No 384/96, Art. 21(5))

8. Procedure — Measures of inquiry — Request for production of a document — Commission ' s internal documents — Disclosure excluded except in exceptional circumstances — Burden of proof falling on the applicant — Application to the report sent by the Commission to the Advisory Committee under Article 21(5) of Regulation No 384/96 — (Rules of Procedure of the Court of First Instance, Art. 65(b); Council Regulation No 384/96, Art. 21(5))

9. Common commercial policy — Protection against dumping — Expiry review procedure — Assessment of the Community interest — Taking account of the opinions of users even where uncorroborated — Whether permitted — (Council Regulation No 384/96, Art. 21(7))

10. Common commercial policy — Protection against dumping — Expiry review procedure — Assessment of the Community interest — Duty to hold a meeting for an exchange of views between the parties — No duty — (Council Regulation No 384/96, Arts 6(6), and 21(3), (4) and (6))

11. Common commercial policy — Protection against dumping — Expiry review procedure — Assessment of the Community interest — Requirement to take account of the cumulative effect of anti-dumping measures — (Council Regulation No 384/96, Art. 21)

Summary

1. The Community interest requirement, provided for in Article 9(4) and Article 21 of the basic anti-dumping Regulation No 384/96, must also be taken into consideration during a review when deciding whether to retain measures that are due to expire.

Whilst it is true that Article 11(2) of the basic regulation does not refer expressly to the Community interest as one of the conditions for retaining a measure that is due to expire, it may be inferred from paragraphs 5 and 9 of that article that the conditions for retaining a measure that is due to expire are mutatis mutandis the same as those for the imposition of new measures.

It follows that the basic regulation does not confer on a complainant Community industry the right to have protective measures imposed, even where the existence of dumping and injury have been established. Nor does that Community industry have the right to retain a measure that is due to expire even where the likelihood of dumping and injury continuing and recurring has been established. Such measures may only be imposed or retained where it has also been established, in accordance with Article 9(4) and Article 21 of the basic regulation, that they are justified in the Community interest.

see paras 38-42, 44

2. Examination of the Community interest in accordance with Article 21 of the basic anti-dumping Regulation No 384/96 requires an evaluation of the likely consequences both of applying and of not applying the measures proposed both for the interest of the Community industry and for the other interests at stake, in particular those of the various parties referred to in that article. That evaluation involves a forecast based on hypotheses regarding future developments, which includes an appraisal of complex economic situations.

An assessment of the Community interest also requires the interests of the various parties concerned to be balanced against the public interest and is therefore based on choices of economic policy. In that regard, the last sentence of Article 21(1), which provides that the authorities may cease to apply measures where they " can clearly conclude that it is not in the Community interest" to apply them, requires the Commission in particular to balance the interests in a transparent manner and to justify its findings, setting out the facts justifying the decision and the legal considerations on the basis of which it adopted that decision. The Commission is therefore required to state the reasons for its assessment in sufficiently precise and detailed a manner so as to enable the Court of First Instance effectively to conduct a judicial review of that determination.

In those circumstances, it is for the Community judicature, when hearing an action for annulment against a Commission decision terminating an anti-dumping proceeding on grounds of Community interest, to verify whether the procedural rules have been complied with, whether the facts on which the contested choice is based have been accurately stated, and whether there has been any error of law or manifest error of assessment of those facts or a misuse of powers. However, it is not for the Community judicature to substitute its assessment for that of the institutions which are responsible for making that choice.

see paras 47-50

3. The purpose of Article 21(2) of the basic anti-dumping Regulation No 384/96 is in particular to lay down the circumstances in which the Commission is required to take into consideration the information provided by the interested parties referred to in that paragraph. However, those provisions are not intended to prevent the Commission from taking into account other information which might be relevant for the purposes of assessing the Community interest and which has not been brought to its attention according to the procedure laid down in Article 21 of the basic regulation. It is for the Commission to determine in as objective a manner as possible whether a protective measure is in the Community interest. In that regard, the Commission has not only the right but also the obligation to carry out an overall assessment of the situation on the market concerned by the measures and on other markets which those measures will affect. This means that the Commission can take into consideration any information that may be relevant for its assessment, irrespective of its source, provided it is representative and reliable.

see paras 53-54

4. A further balancing of the relevant interests in an assessment of the Community interest in order to determine whether anti-dumping measures should be retained beyond the period of five years for which they were adopted is not only necessary where the effects of the measures are particularly adverse for the users or where the trends on the market concerned during the application of the measures differ from those envisaged when the measures were imposed. Even where the effects of the measures are totally in accordance with those forecast by the institutions, the fact remains that the various interests at stake were originally balanced with a view to the measures being of limited duration. That initial balancing is therefore no longer directly relevant, by definition, when it comes to deciding whether to retain the measures beyond the period originally envisaged.

see para. 58

5. In reviewing expiring anti-dumping measures, the Commission ' s wide discretion in assessing the Community interest also covers the information which it takes into consideration in order to assess the effects of the measures for the Community industry and for other groups whose interests are relevant as regards assessing the Community interest. In that regard, the Commission ' s view that it was relevant, for the purposes of its analysis, to compare the situation during the time the measures that were due to expire were in force with the previous situation cannot be regarded as manifestly incorrect. Indeed, a full analysis of past data, including data relating to the period before the measures were imposed, only serves to reinforce the validity of the long-term assessment of the Community interest which the Commission is required to carry out as part of the review.

see paras 67-68

6. The provisions of Article 21(2) to (5) of the basic anti-dumping Regulation No 384/96 require the Commission to take into consideration the information provided by the interested parties under the conditions laid down therein, but they are not intended to prevent the Commission from taking into account other relevant information, even where it has not been brought to its attention according to the procedure laid down.

It is therefore not unlawful for the Commission to send questionnaires to users and users ' associations even though Article 21 does not expressly empower it to do so. The practice of sending out such questionnaires is in accordance with the principles of sound administration and the purpose of Article 21(2) of the basic regulation. In the absence of provisions expressly governing the sending out of such questionnaires, the Commission has discretion as to whether it is appropriate to do so, and regarding the choice of recipients and the relevant procedure. That discretion also permits it to select the appropriate time to send out the questionnaires and whether or not to take account of replies made after the expiry of the deadline which it fixed.

see paras 78-81

7. In protecting against dumping, in assessing the Community interest, whether the submissions of the users which provided information to the Commission are representative or not does not depend on the number and market shares held. In order to determine whether information provided by a small number of undertakings is representative of the sector concerned it is more important to know whether those undertakings constitute a typical sample of the various categories of operator in that sector.

see para. 90

8. The confidential or internal nature of a document such as that sent by the Commission to the Advisory Committee in accordance with Article 21(5) of the basic anti-dumping Regulation No 384/96 does not constitute an absolute obstacle preventing the Court from ordering its production by way of a measure of inquiry. However, during proceedings before the Community Courts internal documents of the institutions are not revealed to the applicant parties unless the exceptional circumstances of the case concerned so require, on the basis of solid evidence which it is up to them to provide.

see para. 94

9. Article 21(7) of the basic anti-dumping Regulation No 384/96 cannot therefore be interpreted as meaning that the Commission should not take the users ' views into consideration nor that in order for those views to be taken into account there must be evidence to corroborate them.

That provision lays down the conditions under which interested parties may assert their right to ensure that the information they have supplied is taken into consideration, but it is not designed to limit the information which the institutions may take into account in order to assess the Community interest.

see paras 104-105

10. Article 6(6) of the basic anti-dumping Regulation No 384/96, which provides for the holding of a meeting for an exchange of views between the parties, is not therefore applicable in the context of the examination of the Community interest under Article 21(6) of that regulation. Article 21(3), (4) and (6) grant the parties mentioned therein a specific right to be heard regarding the Community interest and therefore constitute special provisions which fully guarantee the right of the parties to be heard, alongside which there is no need to apply the provisions of Article 6(6) of the basic regulation.

see paras 117-118, 121

11. In the context of an anti-dumping expiry review, it is not only justified but necessary to take into consideration the cumulative effect of the measures in order to assess the Community interest. The reduction in the profits of the user industry caused by more expensive raw materials has repercussions on the value of the shares of those companies and on the conditions under which they can find the capital they need in order to invest. Those parameters are influenced by the profitability prospects of the user industry in the medium and long term, and it is clear that anti-dumping measures may have a cumulative effect in that regard.

see para. 173