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

( 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

( EEC TREATY, ART . 190; COUNCIL REGULATION NO 3017/79, ART . 10 )

5 . COMMON COMMERCIAL POLICY - PROTECTION AGAINST DUMPING - IMPOSITION OF ANTI-DUMPING DUTIES - CONDITIONS - INJURY - TO BE ASSESSED AS A WHOLE - DUMPING MARGIN - DEFINED INDIVIDUALLY

( COUNCIL REGULATION NO 3017/79, ART . 4 )

6 . COMMON COMMERCIAL POLICY - PROTECTION AGAINST DUMPING - DUMPING MARGIN - COMPARISON BETWEEN THE NORMAL VALUE AND THE EXPORT PRICE EXPRESSED IN DIFFERENT CURRENCIES - USE OF OFFICIAL EXCHANGE RATES

( COUNCIL REGULATION NO 3017/79 )

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 .

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 WHICH HAVE BEEN GIVEN INDIVIDUAL CONSIDERATION CANNOT, IF IT IS ACCOMPANIED BY A STATEMENT OF REASONS SATISFYING THE REQUIREMENTS OF ARTICLE 190 OF THE TREATY, 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 CLEAR FROM ARTICLE 4 OF REGULATION NO 3017/79 THAT THE INJURY CAUSED TO A COMMUNITY INDUSTRY BY DUMPED IMPORTS MUST BE ASSESSED AS A WHOLE, AND IT IS NOT NECESSARY ( OR, INDEED, POSSIBLE ) TO DEFINE SEPARATELY THE SHARE IN SUCH INJURY WHICH IS ATTRIBUTABLE TO EACH OF THE COMPANIES RESPONSIBLE . CONSEQUENTLY, A COMPANY SEEKING TO CHALLENGE THE AMOUNT OF THE ANTI-DUMPING DUTY IMPOSED ON ITS PRODUCTS CANNOT CLAIM THAT THAT AMOUNT DOES NOT CORRESPOND TO THE INJURY WHICH CAN BE ATTRIBUTED TO IT ON THE BASIS OF ITS SMALL MARKET SHARES WHEN THE RATE OF THE DUTY IMPOSED ON ITS PRODUCTS CORRESPONDS TO THE DUMPING MARGIN APPLICABLE TO ITS EXPORTS .

6 . THE PURPOSE OF DEFINING A DUMPING MARGIN IS TO CORRECT THE EFFECT WHICH IMPORTS OF PRODUCTS FROM NON-MEMBER COUNTRIES AT DUMPED PRICES ACTUALLY HAD ON THE CORRESPONDING COMMUNITY INDUSTRY . THAT EFFECT CAN ONLY BE ASSESSED IN THE LIGHT OF THE OFFICIAL EXCHANGE RATES ON THE BASIS OF WHICH INTERNATIONAL TRADE TRANSACTIONS TAKE PLACE . CONSEQUENTLY, THESE RATES MUST BE USED IN ORDER TO COMPARE THE NORMAL VALUE AND THE EXPORT PRICE AND TO DEFINE THE DUMPING MARGIN .