Keywords

Summary



Keywords

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1. Common commercial policy - Protection against dumping practices - Dumping margin - Determination of the normal value - Factor to which regard must primarily be had - Price charged in the ordinary course of trade - Distribution companies controlled by the manufacturer - Recourse to selling prices applied by those companies - Whether legal

(Council Regulation No 2176/84, Art. 2(3)(a) and (b))

2. Common commercial policy - Protection against dumping practices - Dumping margin - Determination of the normal value - Price charged in the ordinary course of trade - Price actually paid or payable - Trade-in discount - Inclusion

(Council Regulation No 2176/84, Art. 2(3)(a))

3. Common commercial policy - Protection against dumping practices - Dumping margin - Determination of the normal value - Constructed value - Purpose of construction - Selling, administrative and other general expenses to be taken into consideration

(Council Regulation No 2176/84, Art. 2(3)(b)(ii))

4. Common commercial policy - Protection against dumping practices - Comparison between the normal value and the export price - Allowances - Compatibility of the provisions of the basic anti-dumping regulation with the GATT Anti-Dumping Code - Differences in the levels of trade - Burden of proof

(Council Regulation No 2176/84, Art. 2(9) and (10)(c); Agreement on the implementation of Article VI of the General Agreement on Tariffs and Trade, 1979 Anti-Dumping Code, Art. 2(6))

5. Common commercial policy - Protection against dumping practices - Injury - Community industry involved - Production of the like product - Discretion of the institutions - No clear delimitation of the classification segments within the range of products considered - No error of assessment

(Council Regulation No 2176/84, Arts 2(12) and 4(4))

6. Common commercial policy - Protection against dumping practices - Injury - Community industry involved - Exclusion of certain manufacturers on account of their relationship with firms engaged in dumping - Discretion of the institutions - Conditions governing its exercise

(Council Regulation No 2176/84, Art. 4(5))

7. Common commercial policy - Protection against dumping practices - Injury - Impact of imports being dumped - Evaluation in relation to production of the like product in the Community - Criteria

(Council Regulation No 2176/84, Art. 4(4))

8. Common commercial policy - Protection against dumping practices - Appraisal of Community interests by the institutions - Judicial review - Limits

(Council Regulation No 2176/84, Art. 12(1))

Summary

1. When, in connection with sales on the domestic market, it is established that a manufacturer entrusts tasks which are normally the responsibility of an internal sales department to distribution companies for its products which it controls financially and with which it makes up a single economic entity, the fact that the institutions took the prices paid by the first buyer who was independent of the related sales companies is justified, given that those prices may quite properly be regarded as the prices actually paid or payable in the ordinary course of trade within the meaning of Article 2(3)(a) of the basic anti-dumping regulation, Regulation No 2176/84, and that regard must primarily be had to those prices, the other methods indicated in Article 2(3)(b)(i) and (ii) being merely subsidiary.

Moreover, the finding that there is a single economic entity is not affected by the fact that a number of sales functions are carried out by the manufacturer itself, in particular when those functions are merely complementary to those performed by the related sales companies.

2. Trade-in discounts granted to buyers of new models when old models are traded in, corresponding to the value attributed by the manufacturer to the withdrawal of used machines from the market, must be regarded as part of the price actually paid or payable by the purchaser and must thus be taken into account for the purposes of determining the normal value in accordance with Article 2(3) of the basic anti-dumping regulation, Regulation No 2176/84.

3. The purpose of constructing the normal value is to determine the selling price of a product as it would be if that product were sold in its country of origin or in the exporting country. Consequently it is the expenses relating to sales on the domestic market which must be taken into account when establishing the constructed value.

Accordingly the Community institutions were right to refuse to use data relating to a market other than the domestic market of the country of origin or exporting country.

4. Article 2(10)(c) of the basic anti-dumping regulation, Regulation No 2176/84 cannot be interpreted as entitling the institutions to refuse to make allowances to take account of differences in the level of trade as required by Article 2(6) of the 1979 GATT Anti-Dumping Code. However, a manufacturer which does not prove that the sales on the basis of which the normal value and the export price were determined concerned different categories of purchasers and were consequently at different levels of trade cannot justify a claim for allowances on the ground of different levels of trade within the meaning of Article 2(9) and (10) of the basic anti-dumping regulation, Regulation No 2176/84.

5. The Community institutions did not commit an error of assessment when they considered, for the purposes of assessing the injury suffered by the Community industry, that "Community production of the like product" within the meaning of Article 4(4) of the basic anti-dumping regulation, Regulation No 2176/84, was production of all photocopiers in all segments merged together, excluding machines for which there was no Community production, since, according to the market surveys which the institutions took as their basis, there is no clear delimitation of photocopier classification segments inasmuch as, on the one hand, certain photocopiers can be classified in several different segments in view of their features and technical characteristics and, on the other hand, there is competition both between photocopiers in adjoining segments and between those classified in non-adjoining segments.

6. Article 4(5) of the basic anti-dumping regulation, Regulation No 2176/84, shows that it is for the institutions, in the exercise of their discretion, to determine whether they should, for the purpose of determining whether there is injury, exclude from the "Community industry" producers which are related to exporters or importers or are themselves importers of the dumped product. The discretion must be exercised on a case-by-case basis, subject to review by the Court, by reference to all the relevant facts.

7. In determining the existence of injury, the Community institutions are not obliged to take into consideration the profits or losses made by Community producers on their activities in the sector concerned as a whole. In accordance with Article 4(4) of the basic anti-dumping regulation, Regulation No 2176/84, the effect of the dumped imports must be assessed in relation to the Community production of the like product.

8. The question whether, in the event of the existence of injury resulting from dumping practices, the interests of the Community call for Community intervention involves appraisal of complex economic situations. Judicial review of such an appraisal must be limited to verifying whether the relevant procedural rules have been complied with, whether the facts on which the choice is based have been accurately stated and whether there has been a manifest error of appraisal or a misuse of powers.