Keywords

Summary



Keywords

1 Common commercial policy - Protection against dumping - Discretion of the institutions - Judicial review - Limits - Determination of the dumped product - Product used for two different applications - Obligation to grant individual treatment - None - Manifest error of assessment - None

(Council Regulation No 2423/88)

2 Common commercial policy - Protection against dumping - Injury - Product used for two different applications - Community production intended essentially for only one of those applications - Anti-dumping duty imposed on all imports irrespective of the product's end-use - Disproportionate nature - None

(Council Regulation No 2423/88, Art. 2(1))

3 Common commercial policy - Protection against dumping - Injury - Causal link - Burden of proof where the Community industry faces difficulties not attributable to dumping - Factors to be taken into consideration when assessing injury - Several - Discretion of the institutions - Decline in dumped imports - Not decisive

(Council Regulation No 2423/88, Art. 4(1))

4 Common commercial policy - Protection against dumping - Undertakings, relating to the volume of exports, proposed by an economic operator established in a non-member country - Where the dumping exporter has breached previous undertakings - Rejection of the proposal - Obligation to state reasons - Discretion of the institutions

(EC Treaty, Art. 190; Council Regulation No 2423/88, Art. 10)

Summary

5 In the field of measures to protect trade, the Community institutions enjoy a wide discretion. Judicial review must be restricted to verifying whether or not they have committed manifest errors of assessment or misused their powers.

So far as concerns the imposition of an anti-dumping duty on a product with two different applications, the institutions do not exceed their wide discretion in concluding that there are not two separate markets - one for each application - since the product may at any stage be directed to either of the two applications and a company supplying the product to customers who use it for one of the two applications is also a potential supplier to buyers using the same product for the other application. Furthermore, none of the provisions of the basic anti-dumping regulation (No 2423/88) requires the institution to treat the same product differently according to its various applications.

6 The only condition which Article 2(1) of the basic anti-dumping regulation (No 2423/88) lays down for the imposition of anti-dumping duties is that the product should have caused injury. So far as concerns the injury caused by imports of a product used for two different applications, when almost the entire Community production of the same product is intended for only one of those applications, the imposition of anti-dumping duties on all imports of the product from a given country is contrary neither to Article 2(1), cited above, nor to the principle of proportionality, since the two different applications do not correspond to two separate markets.

In the absence of any obstacles to the use of the product equally for one or other of its two applications and where there is actual or potential competition from the point of view of both demand and supply, the imposition of anti-dumping duties solely on imports of the product intended for the application for which almost all of the Community production is intended is not such as to ensure the removal of the injury.

Moreover, the Community industry can correctly claim the right not to be actually or potentially excluded from a certain market by dumping practices.

7 The imposition of anti-dumping duties cannot be contested on the ground that they leave intact the problems which competition from products imported from non-member countries but not dumped pose for the Community industry. The fact that a Community producer is experiencing difficulties attributable in part to causes other than dumping is not a reason for depriving that producer of all protection against the injury caused by dumping.

Accordingly, the conditions laid down by Article 4(1) of the basic regulation (No 2423/88) for finding that there has been injury are fulfilled where, first, it has been found that there was dumping of imports from a given country as well as injury caused by those imports and, second, the applicant, the dumping importer, has not shown that the injury should to be attributed to other factors, in particular to imports from other non-member States.

Moreover, according to Article 4(2) of the same regulation, examination of the injury suffered must encompass a series of factors, no one of which can in itself constitute a decisive ground for a determination. That is why a reduction in the market share of the dumped imports does not preclude the finding that significant injury has been caused by them, provided that that finding is based on various factors which the abovementioned provision requires to be taken into consideration.

8 No provision of the basic anti-dumping regulation (No 2423/88) requires the institutions to accept undertakings offered by economic operators who are the subject of an investigation prior to the imposition of anti-dumping duties. On the contrary, it is clear from Article 10 of that regulation that it is for the institutions, in the exercise of their discretion, to decide whether such undertakings are acceptable. It is not open to the Court to find fault with a rejection of offers of undertakings, which was issued after individual examination and was accompanied by a statement of reasons which satisfies the requirements of Article 190 of the Treaty, where the grounds on which that rejection is based do not exceed the margin of discretion conferred on the institutions.

In this connection, the rejection of a proposal which does not relate to an undertaking to export at a certain minimum price but rather to limit the volume of exports may be criticised only if accepting it would have meant granting an economic operator individual treatment without removing the injury.

Furthermore, breach of a previous undertaking constitutes a factor which the Community institutions may validly take into consideration in conjunction with the facts of the case under consideration when deciding whether to accept or reject a proposed undertaking. The fact that, in previous cases, they have sometimes accepted undertakings given by exporters which had previously breached their undertakings is not such as to restrict the wide discretion which they enjoy in this matter.