Keywords

Summary



Keywords

1. Common commercial policy - Protection against dumping - Dumping margin - Determination of the export price - Recourse to a constructed export price - Conditions - Discretion of the institutions - Judicial review - Limits

(Council Regulation No 2423/88, Art. 2(8)(b))

2. Common commercial policy - Protection against dumping - Price undertaking - Breach by operator - Withdrawal by the Commission

(Council Regulation No 2423/88))

3. Common commercial policy - Protection against dumping - Dumping margin - Determination of the export price - Sampling - Permissibility - Conditions - Representative nature of the sample

(Council Regulation No 2423/88)

4. Common commercial policy - Protection against dumping - Injury - Discretion of the institutions - Judicial review - Limits

(Council Regulation No 2423/88)

5. Common commercial policy - Protection against dumping - Review procedure - Initiation of a fresh investigation - Conditions - Sufficient evidence of dumping or of consequent injury - Injury - Concept

(Council Regulation No 2423/88, Arts 4(1) and (2) and 14)

Summary

1. According to Article 2(8)(b) of the basic regulation, Regulation No 2423/88, the export price should be constructed where there is no export price or where it appears that there is an association or a compensatory arrangement between the exporter and the importer or a third party, or that for other reasons the price actually paid or payable for the product sold for export to the Community is unreliable.

As is apparent from that list of criteria, and in particular from the use of the words where it appears and for other reasons, the institutions have a certain latitude in deciding whether to apply Article 2(8)(b) of the basic regulation, and recourse may be had to the constructed export price not only where the institutions obtain actual evidence of the existence of a compensatory arrangement but also where such an arrangement appears to exist or the export price reported appears to be unreliable.

Moreover, consideration of the question whether or not the export prices reported by the exporter are reliable necessarily entails complex economic assessments in respect of which the institutions enjoy a wide discretion, so that the Court's power of review is restricted.

( (see paras 40, 42 )

2. Where, in the context of an anti-dumping procedure, the Commission has accepted a price undertaking given by an operator, a finding that that undertaking has been violated, even if it concerns only a relatively small percentage of the turnover of the operator in question, is sufficient to lead to its withdrawal by the Commission.

( see para. 52 )

3. The determination of a value or the reaching of a finding based on sample data is normal practice and is not per se open to criticism, especially in the context of the anti-dumping rules, provided that the sample in question is sufficiently representative.

( see para. 52 )

4. The question whether the Community industry has suffered injury and, if so, whether that injury is attributable to dumped imports and the question whether imports from other countries contributed to the injury suffered by the Community industry involve the assessment of complex economic matters in respect of which the Community institutions enjoy a wide discretion. Consequently, judicial review of such an assessment must be limited to verifying 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 a manifest error of appraisal of those facts or a misuse of powers.

( see para. 94 )

5. In the context of a review initiated under Article 14 of the basic regulation, Regulation No 2423/88, no specific provisions are laid down with regard to the determination of injury; consequently, where a regulation modifies existing anti-dumping duties upon the conclusion of such a procedure, the existence of injury within the meaning of Article 4(1) of the basic regulation must be established.

In that context, the mere fact that the Community producer of the product in question has increased its sales and its market share does not mean that it has ceased to suffer injury. Similarly, a reduction in the market share of the dumped imports does not preclude a finding that significant injury has been caused by them, provided that that finding is based on various factors which Article 4(2) of the basic regulation requires to be taken into consideration.

( see paras 97, 103, 105 )