Keywords

Summary



Keywords

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1. Actions for annulment of measures ° Natural or legal persons ° Measures of direct and individual concern to them ° Regulation imposing anti-dumping duties ° Importers associated with the exporter, whose resale prices formed the basis of the constructed export price

(EC Treaty, Art. 173, fourth para.)

2. Common commercial policy ° Protection against dumping ° Dumping margin ° Determination of normal value ° Imports from non-market economy countries ° Discretion of the institutions ° Obligation to state reasons ° Judicial review ° Limits

(EC Treaty, Art. 190; Council Regulation No 2423/88, Art. 2(5))

3. Common commercial policy ° Protection against dumping ° Injury ° Relevant Community industry ° Exclusion of certain producers importing the dumped product ° Effects of imports from other non-member countries ° Discretion of the institutions ° Obligation to state reasons

(EC Treaty, Art. 190; Council Regulation No 2423/88, Art. 4)

4. Common commercial policy ° Protection against dumping ° Fixing of anti-dumping duties ° Discretion of the institutions ° Imposition of a variable duty equal to the difference between a minimum price and the net free-at-frontier price ° Lawfulness

(Council Regulation No 2423/88, Art. 13(2))

5. Common commercial policy ° Protection against dumping ° Initiation of the investigation ° Commission' s obligation to inform the representatives of the exporting country ° Obligation to repeat the notification to succeeding States ° None

(Council Regulation No 2423/88, Art. 7(1)(b), (4) and (5))

6. Common commercial policy ° Protection against dumping ° Conduct of the procedure ° Period in excess of one year ° Permissibility ° Criterion ° Reasonable period

(Council Regulation No 2423/88, Art. 7(9)(a))

7. Common commercial policy ° Protection against dumping ° Conduct of the investigation ° Period covered by the investigation ° Discretion of the institutions ° Choice of a period other than the six months prior to the opening of the proceeding ° Lawfulness ° Obligation to state reasons ° Limits

(EC Treaty, Art. 190; Council Regulation No 2423/88, Art. 7(1)(c))

Summary

1. Regulations imposing an anti-dumping duty, although by their nature and scope of a legislative character, are of direct and individual concern inter alia to importers who are associated with the exporter and whose resale prices for the products in question form the basis of the constructed export price.

2. It is apparent from the scheme and wording of Article 2(5) of the basic anti-dumping regulation, Regulation No 2423/88, which provides that "In the case of imports from non-market economy countries ..., normal value shall be determined in an appropriate and not unreasonable manner ...", and in particular the use of the phrase "not unreasonable", that the determination of normal value falls within the wide discretion enjoyed by the institutions in analysing complex economic situations.

The Community judicature cannot intervene in assessments which are thus for the Community authorities to make, but must restrict its review to verifying whether the procedural rules have been complied with, whether the facts on which the contested choice is based are substantially accurate or whether there has been a manifest error of appraisal of those facts or a misuse of powers, and must therefore merely satisfy itself that the institutions took account of all the relevant circumstances and that they appraised the facts of the matter with all due care, so that normal value may be regarded as having been determined in an appropriate and not unreasonable manner.

Thus, the Community judicature is not entitled to review the choice of reference country, nor the exclusive use of data supplied by a producer associated with the Community producers, nor the combined use (not announced when the investigation was opened) of the methods of determining normal value provided for in Article 2(5)(a)(i) and (ii) respectively, if that method of proceeding, which was clearly explained during the administrative procedure to the undertakings suspected of being engaged in dumping, without any objection on their part, and which is set out ° albeit not in detail, in view of the lack of any objection from the interested parties ° in the regulation imposing the anti-dumping duty, may be regarded, in the light of the difficulties encountered and the explanations provided, as appropriate and not unreasonable.

3. When examining the extent to which dumping causes injury to the Community industry, the institutions enjoy a wide discretion, for the purposes both of determining whether they should exclude from the Community industry producers who are themselves importers of the dumped product and of assessing the extent to which imports other than those forming the subject-matter of the anti-dumping proceeding concerned contributed to the injury suffered by the Community industry.

Whilst they are certainly obliged to include, in the regulation imposing an anti-dumping duty which is adopted following the closure of the administrative procedure, a statement of reasons specifying the relevant issues of law and fact, the regulation in question does not have to set out the full details of their reasoning where no objection to that reasoning has been raised by the interested undertakings during the proceeding.

4. It is apparent from the very wording of Article 13(2) of the basic anti-dumping regulation, Regulation No 2423/88, that the institutions are free to choose, within the limits of their discretion, between the different types of duty. In particular, they may legitimately decide to impose a variable duty equal to the difference between a minimum price fixed by them and the net free-at-frontier price before customs clearance.

5. Although Article 7(1)(b) of the basic anti-dumping regulation, Regulation No 2423/88, requires the Commission to inform the representatives of the exporting country of the opening of an anti-dumping proceeding, there is nothing in the basic regulation, nor any general principle, which obliges the Commission to repeat that notification to States which may succeed it. In assuming the rights and obligations of the State which they succeed, those States must take the anti-dumping proceeding as they find it, and they have the right, in particular, to inspect the information made available to the Commission and the right to be heard pursuant to Article 7(4) and (5) of the basic regulation.

6. The one-year period laid down for the completion of proceedings by Article 7(9)(a) of the basic anti-dumping regulation, Regulation No 2423/88, is a guide rather than a mandatory period. It follows from that provision, however, that the anti-dumping proceeding should not be extended beyond a reasonable period, which falls to be assessed according to the particular circumstances of each case. In that connection, a period of nearly two years does not appear to be excessive where the Commission has encountered difficulties in finding undertakings in the reference country which are willing to cooperate in the proceeding.

7. It follows from the very wording of Article 7(1)(c) of the basic anti-dumping regulation, Regulation No 2423/88, that that provision does not preclude the Commission from choosing an investigation period other than the six months immediately prior to the opening of the proceeding.

Consequently, the Commission may, in the exercise of its discretion, legitimately opt for a slight displacement of that period, without being required, in the absence of any objection by the interested undertakings, to provide reasons for that choice in the regulation imposing an anti-dumping duty which is adopted following the closure of the administrative procedure.