Keywords

Summary



Keywords

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1 . Common commercial policy - Protection against dumping practices - Dumping margin - Determination of the normal value - Constructed value - Taking account of a reasonable profit margin

( Council Regulation No 2176/84, Art . 2 ( 3 ) ( b ) ( ii ) )

2 . Common commercial policy - Protection against dumping practices - Dumping margin - Determination of the normal value - Constructed value - Cost of production - Selling, administrative and other general expenses

( Council Regulation No 2176/84, Art . 2 ( 3 ) ( b ) ( ii ) )

3 . Common commercial policy - Protection against dumping practices - Dumping margin - Determination of the normal value and the export price and their comparison - Distinct rules

( Council Regulation No 2176/84, Art . 2 )

4 . Common commercial policy - Protection against dumping practices - Dumping margin - Miscalculation - Effect on validity of the anti-dumping duty - No effect on account of the fixing of the rate of duty at a level of injury which is below the real dumping margin

( Council Regulation No 2176/84, Art . 13 )

5 . Common commercial policy - Protection against dumping practices - Injury - Determination on the basis of a comparison between import prices and the prices of Community products calculated irrespective of fall in the latter as a result of dumping - Legality - Condition

( Council Regulation No 2176/84, Art . 4 )

Summary

1 . Where the Community institutions are obliged, under the procedure for calculating anti-dumping duties, to take the constructed value as a basis for establishing the normal value, they are entitled to adopt as a reasonable profit margin the profit margin obtained on the domestic market of the country of manufacture for similar products by competitors of the manufacturer practising the dumping, and it is no defence to argue that the information in question is not known to the manufacturer concerned who cannot verify its accuracy on account of the confidential treatment accorded to information gathered in the course of the investigation and constituting business secrets .

Where it is impossible to take real prices as a basis, references to factors not known to the manufacturer concerned are often necessary under the system laid down by Regulation No 2176/84 and the degree of unforeseeability resulting therefrom has to be accepted .

2 . Where the Community institutions are obliged, under the procedure for calculating anti-dumping duties, to take the constructed value as a basis for establishing the normal value, they are entitled, for the purpose of determining the amount of reasonable selling, administrative and other general expenses included in the cost of production, to refer, in the exercise of their discretionary power and in the absence of evidence that that method is incorrect, to the expenditure incurred by a company related to the manufacturer concerned which sells products other than those being dumped, provided that the manufacturer in question markets his products on the domestic market through that company, which he controls financially and to which he entrusts tasks that are normally the responsibility of an internal sales department .

The division of production and sales activities within a group made up of legally distinct companies can in no way alter the fact that the group is a single economic entity which carries on in that way activities that, in other cases, are carried on by what is in legal terms as well a single entity . Moreover, that method alone makes it possible, by taking account of the first sale to an independent purchaser, to establish the normal value at the "ex-factory" level where there are production and sales arrangements of that kind .

It is of little importance that the exclusive distributor does not sell the dumped products, since the normal value of those products must be constructed as if they had been sold on the domestic market .

3 . Under the procedure for calculating anti-dumping duties, there are, for the purpose of establishing the dumping margin, three sets of distinct rules, each of which must be complied with separately for the respective purposes of determining the normal value, establishing the export price and making the comparison between the two .

4 . A manufacturer upon whom anti-dumping duties have been imposed cannot contest them on the ground that they were calculated taking into account an exaggerated dumping margin provided the rate of duty has been fixed at a level of injury which is below both the dumping margin incorrectly adopted and the real dumping margin .

5 . Under the procedure for calculating anti-dumping duties, the Community institutions are entitled to determine the injury suffered by Community manufacturers on the basis of a comparison between the prices of imported products, on the one hand, and the prices of similar Community products not at their real level but at the level which they would have reached if there had been no dumping, on the other, where at the time of comparison the prices of the Community products have already been subject over a long period to downward pressure leading to their decline precisely on account of the dumping .