Keywords

Summary



Keywords

1. Common commercial policy – Protection against dumping – Anti-dumping proceeding – Rights of the defence – Communication of the final disclosure documents by the Commission to the undertakings – Submission to the Council of the Commission’s proposal for definitive measures less than ten days after that disclosure – Irregularity

(Council Regulation No 384/96, Art. 20(4) and (5))

2. Common commercial policy – Protection against dumping – Anti-dumping proceeding – Rights of the defence – Commission decision refusing to grant market economy treatment before the expiry of the period prescribed in Article 20(5) of Basic Anti-dumping Regulation No 384/96 – Whether it is possible to have that decision annulled simply by demonstrating that, had there been no such procedural error, the decision might have been different

(Council Regulation No 384/96, Art. 20(5))

3. Common commercial policy – Protection against dumping – Dumping margin – Determination of the normal value – Investigation

(Council Regulation No 384/96, Art. 2(7)(c))

Summary

1. In order to comply with Article 20(4) and (5) of Basic Anti-dumping Regulation No 384/96, the Commission is required, when it intends to increase the anti‑dumping duty by comparison with that envisaged in the initial final disclosure document, to inform the undertakings concerned by sending a new final disclosure document to them and to wait for the expiry of the period prescribed in Article 20(5) of that provision before sending its proposal for definitive measures to the Council, in order to give those undertakings the opportunity to make representations.

That interpretation follows not only from the regulative context of which that provision forms part but is also necessary in order to ensure that account is taken, in a manner that is effective and without prejudice, of any representations made by the interested parties. The very fact that a proposal for definitive measures has already been put to the Council is, in itself, capable of influencing the consequences that may be drawn from those representations. Finally, it cannot be that difficulties encountered by the institutions in complying with the periods prescribed in Basic Anti-dumping Regulation No 384/96 should result in an infringement of the periods prescribed for the protection of the rights of defence of the undertakings concerned. On the contrary, the onus is on the institutions, in particular the Commission, to take account of the time constraints imposed by the regulation while at the same time respecting the rights of defence of the undertakings concerned.

However, failure to comply with the 10-day period prescribed in Article 20(5) of Basic Anti-dumping Regulation No 384/96 can result in annulment of the contested regulation only where there is a possibility that, due to that irregularity, the administrative procedure could have resulted in a different outcome and thus in fact adversely affected the applicant’s rights of defence.

(see paras 74, 76, 78-79, 81)

2. Respect for the rights of the defence is, in all proceedings initiated against a person which are liable to culminate in a measure adversely affecting that person, a fundamental principle of Community law which must be guaranteed even in the absence of any rules governing the proceedings in question. That principle requires that the addressees of decisions which significantly affect their interests should be placed in a position in which they may effectively make known their views.

Respect for that principle is of crucial importance in anti-dumping proceedings. In order to secure the annulment of a Commission decision not to grant it market economy treatment, adopted before the expiry of the period prescribed in Article 20(5) of Basic Anti-dumping Regulation No 384/96, the undertaking concerned is not required to show that that decision would have been different in content but simply that such a possibility cannot be totally ruled out, since it would have been better able to defend itself had there been no procedural error.

(see paras 83-85, 89, 91, 93-94)

3. If the Commission realises in the course of the anti-dumping proceeding that, contrary to its original assessment, an undertaking meets the criteria laid down in the first subparagraph of Article 2(7)(c) of Basic Anti-dumping Regulation No 384/96 for the undertaking to be granted market economy treatment, it must take appropriate action, while at the same time ensuring that the procedural safeguards provided for in that regulation are observed.

It follows that the Commission can still alter its position when it realises that the substantive criteria laid down in that provision were originally met. In the light of the principles of compliance with the law and sound administration, the last sentence of Article 2(7)(c) of the Basic Anti‑dumping Regulation cannot be interpreted in such a manner as to oblige the Commission to propose to the Council definitive measures which would perpetuate an error made in the original assessment of those substantive criteria to the detriment of the undertaking concerned.

(see paras 111-112)