Keywords

Summary



Keywords

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1 . Common commercial policy - Defence against dumping - Anti-dumping duty - Variable duty equal to the difference between a predetermined threshold price and the price to the first purchaser in the Community - Calculation - Conversion into the currency of the Member State of importation of the threshold price expressed in a foreign currency - Necessity for the value of the two elements used to determine the duty to be converted using the exchange rate applicable on a single date - The rate of exchange applicable at the material date for the valuation of the goods for customs purposes is required to be used in order to determine the price to the first purchaser in the Community as a result of a reference made to the customs legislation

( Council Regulations Nos 1224/80, Art . 1(1 ) and Art . 9, and 551/83, Arts 1 and 2 )

2 . Common commercial policy - Defence against dumping - Fixing of anti-dumping duties - Discretionary power of the Community institutions - Imposition of a variable duty which is fixed by reference to a threshold price, being the normal value of the goods in the State of exportation, and varies depending on the price paid by the importer - Legality

( Council Regulations Nos 3017/79, Art . 13, and 551/83, Art . 2 )

3 . Common commercial policy - Defence against dumping - Anti-dumping duty - Variable duty - Method of calculation involving a threshold price - Threshold price fixed in a foreign currency rather than in ecus - Legality

( Council Regulations Nos 2779/78, 3017/79, 3308/80 and 551/83, Art . 2 )

4 . Common commercial policy - Defence against dumping - Regulation imposing an anti-dumping duty - Subsequent currency movements rendering the duty unjustified - Validity of the regulation not affected - Existence of procedures allowing economic operators to have new economic data taken into account

Summary

1 . Where a regulation lays down a variable anti-dumping duty corresponding to the difference between, on the one hand, a threshold price - in this case the normal value of the goods in question on the domestic market of the country of exportation, brought up to a cif Community frontier basis - which it expresses in the currency of that non-member country, and, on the other hand, the free-at-frontier Community price, duty unpaid, per tonne net to the first purchaser in the customs territory of the Community, but does not contain any specific provision relating to the rate of exchange to be used to convert that threshold price into the currency of the State of importation, whilst providing that the provisions in force for the application of customs duties are to apply, the rate of exchange to be used for that conversion is the rate which would be used to determine the customs value of the imported goods and not the rate applicable on the date on which the regulation entered into force . That rate is to be used because it is the rate laid down by the regulation on the valuation of goods for customs purposes for determining, by conversion, the other element used to fix the duty, and because the value of the two elements, the difference between which determines the duty, must be calculated using the exchange rates applicable on a single date .

That solution is consonant with the need, when imposing anti-dumping duty on the occasion of a particular import operation, to take account of the situation existing on the date of importation .

2 . The method of fixing anti-dumping duties is governed by Article 13 of Regulation No 3017/79, which provides in particular that anti-dumping duties are to be imposed by regulation and that "such regulation shall indicate in particular the amount and the type of duty imposed ".

Those provisions leave the Community institutions with a wide discretionary power to determine, in each case, the "type of duty" which is such as to afford the most effective defence against dumped imports .

In so far as the Council imposed an anti-dumping duty which was fixed by reference to a threshold price, being the normal value of the goods in the State of exportation, brought up to a cif Community frontier basis, and varied depending on the price paid when the goods were imported into the Community, it did not exceed that discretionary power . A duty of that kind may be the most appropriate means of offsetting the dumping margin and of ensuring fair treatment of imports at different prices .

3 . No provision of Community law, and in particular neither Regulation No 2779/78 on the procedure for applying the European unit of account to legal acts adopted in the customs sphere nor Regulation No 3308/80 on the replacement of the European unit of account by the ecu in Community legal instruments, requires the ecu to be employed to express the value of the threshold price used to calculate a variable anti-dumping duty .

The mere fact that the amount of the duty to be paid by importers depends on a parameter expressed in a currency which is subject to fluctuations outside the control of the Community institutions cannot justify a declaration that the regulation imposing that duty is invalid .

First, any anti-dumping duty, whatever its type and irrespective of the currency in which it is expressed or to which it refers, may be affected by exchange-rate movements . Secondly, in the present state of Community law, the Community institutions can no more control fluctuations in the value of the ecu than they can fluctuations in any other currency .

4 . The validity of a regulation imposing an anti-dumping duty cannot be called into question because after it entered into force exchange-rate fluctuations had the effect of changing the value in the national currencies of the importing Member States of one reference element, expressed in the currency of a non-member country, which is used to determine the amount of duty to be paid, in circumstances such that at a particular time the existence or the amount of the anti-dumping duty was no longer justified . The basic rules governing anti-dumping duties provide economic operators with means of challenging duties which have become wholly or partly unjustified .