Keywords

Summary



Keywords

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Common commercial policy - Protection against dumping - Application for refund of anti-dumping duties based on Article 16 of Regulation No 2176/84 - Calculation of the actual dumping margins - Determination of the export price - Constructed export price - Allowances made for costs incurred between importation and resale - Deduction of anti-dumping duties - Legality - Difference in treatment between association importers and independent importers justified by the difference in their respective situations with respect to the dumping - Incompatibility with Article 2(5) of the GATT anti-dumping code - None

(Council Regulation No 2176/84, Article 2(8)(b), and 16(1); Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade (the 1979 Anti-dumping Code), Art. 2(5))

Summary

Article 16 of the basic anti-dumping regulation, Regulation No 2176/84, provides that, where an importer can show that the anti-dumping duty collected exceeds the actual dumping margin, that is to say the difference between the normal value and the export price, the excess amount is to be reimbursed. Consequently, in order to consider the merits of an application for a refund it is necessary to calculate the actual dumping margin. Where, because the exporter and importer are associated, the calculation is based on a constructed export price, the latter is to be calculated, by virtue of Article 2(8)(b) of the regulation, after making allowance, as costs incurred between importation and resale, for anti-dumping duties applicable on importation.

The resultant difference of treatment in relation to the refund of duties between independent importers and importers associated with the exporter, whereby in order to qualify for a refund the associated importer must, where he resells the goods after payment of the duties, increase his resale price to the first independent buyer by an amount which is twice the dumping margin previously established, whereas the increase in price required of an independent importer is equal to the margin, is justified by the difference in their respective situations in relation to the dumping. It does not therefore constitute prohibited discrimination.

Whereas independent importers are not involved in the dumping, importers who are associated with the exporter are placed on the same side of the dumping fence in the sense that they participate in the practices which constitute dumping and are in a position to have full knowledge of the circumstances underlying it.

The consequence of that difference in their situation is that independent importers may be expected to pass on the anti-dumping duties to their customers, since otherwise they would incur a loss of interest on the amounts paid as anti-dumping duty and would suffer the effects of any currency devaluation; moreover, since they have no knowledge of the facts on the basis of which the dumping margin was established, they would run the risk of not being granted the refund despite the increase in the export price, in particular if the normal value of the products concerned had in the meantime significantly increased. That is not so in the case of associated importers, who may refrain from passing on the anti-dumping duties since they are aware of the commercial practices underlying the dumping and consequently are not in any doubt and run no risks with respect to the possibility of obtaining a refund.

Nor is it possible to argue that the provisions of the basic anti-dumping regulation are contrary to the GATT anti-dumping code drawn up in 1979 to ensure the implementation of Article VI of the GATT. The only difference between the two texts with respect to the construction of the export price is that, whereas the code merely lays down the principle that allowance should be made for costs incurred between importation and resale, "including duties and taxes", the Community regulation specifies, in Article 2(8)(b), certain duties and other costs, including anti-dumping duties for which allowance must be made.