In particular, the very use of the expression ‘significant … interference’ is evidence of the Community legislature’s intention to allow a certain degree of State influence over an undertaking’s activities or of State involvement in its decision-making process if it has no effect on the manner in which its decisions concerning prices, costs and inputs are made.

Furthermore, in view of the wording, purpose and context of that provision, the concept of ‘significant State interference’ cannot be assimilated to just any influence on the activities of an undertaking or to just any involvement in its decision-making process, but must be understood as meaning action by the State which is such as to render the undertaking’s decisions incompatible with market economy conditions.

Consequently, conduct by the State which is not such as to influence the relevant decisions cannot constitute ‘significant State interference’ within the meaning of the first indent of Article 2(7)(c) of basic antidumping Regulation No 384/96.

It is clear from the wording of the first indent of Article 2(7)(c) of basic antidumping Regulation No 384/96 that the question of whether or not there is significant State interference must be assessed in the light of the way that ‘decisions of firms regarding prices, costs and inputs’ are made. It requires the exporting producer concerned to show that its decisions are made both ‘in response to market signals’ and ‘without significant State interference’. In addition, the use of the words ‘in this regard’ further accentuates the connection between the relevant decisions and the State interference.

For the purposes of interpreting and applying the first indent of Article 2(7)(c) of basic antidumping Regulation No 384/96, account must be taken of the fact that the States referred to in Article 2(7)(b) are not regarded as States with market economies, and that is so despite the reforms which have been achieved there. That is an assessment by the Community legislature of the economic, legal and political situation in those non-member countries, which is expressly recognised in Article 2(7) of that regulation and which justifies the specific treatment reserved for imports from those States as regards the determination of the normal value. It must be presumed, therefore, that the conditions in which undertakings operate in those countries are not, unless there is evidence to the contrary, comparable to those in market economy countries.

Thus, the fact that a company established in a non-market economy country is State-controlled may raise doubts as regards the question of whether the State exceeds the role of a normal shareholder which respects the rules of the market and whether the company’s management is sufficiently independent of the State to be able to make decisions concerning prices, costs and inputs autonomously and in response to market signals reflecting supply and demand.

In addition, it is clear from the first indent of Article 2(7)(c) of basic antidumping Regulation No 384/96, in the words of which decisions of firms are ‘made’, that the Community legislature specifically required that the concerned undertaking’s decision-making process be free from any significant State interference.

However, the taking of independent decisions on commercial grounds is, generally, a characteristic of the private sector. Consequently, it is legitimate for the Community institutions, in the exercise of the wide discretion they enjoy in that domain, but subject to review by the Community courts which must satisfy themselves that all the relevant circumstances put forward were taken into account and appraised with all due care, to take account, in their examination of the evidence produced by the exporter concerned, of the fact that the undertaking concerned is State-controlled.

However, State control is not, as such, incompatible with the taking of commercial decisions by the undertaking concerned in keeping with market economy conditions and, in particular, does not mean that its decisions on prices, costs and inputs are based on considerations unrelated to an undertaking operating under such conditions.

Assimilating State control to ‘significant State interference’, within the meaning of the first indent of Article 2(7)(c) of basic antidumping regulation No 384/96, leads to the exclusion, in principle, of State-controlled companies from entitlement to the status of undertakings operating under market-economy conditions, irrespective of the real factual, legal and economic context in which they operate, and, more particularly, of whether they submitted evidence sufficient to show that the State did not exceed the role of a normal shareholder in a market economy country, that the undertaking’s decisions were made freely and independently of considerations peculiar to the State and that those decisions were therefore based exclusively on purely commercial considerations, appropriate to an undertaking operating under market economy conditions. Such an approach is incompatible with Article 2(7)(b) and (c).

Consequently, whilst State control over an undertaking is a matter which may possibly be taken into account, it is not sufficient, by itself, to demonstrate the existence of ‘significant State interference’ and cannot therefore lead to the conclusion that the evidence provided by the exporter concerned is, for the purposes of the first indent of Article 2(7)(c) of basic antidumping Regulation No 384/96, irrelevant.

(see paras 89-92, 97-101, 106)