Keywords

Summary



Keywords

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1 . COMMON COMMERCIAL POLICY - PROTECTION AGAINST DUMPING - DUMPING MARGIN - DETERMINATION OF THE NORMAL VALUE AND THE EXPORT PRICE - CHOICE OF METHOD OF CALCULATION - DISCRETION OF THE COMMISSION - REVIEW BY THE COURT - LIMITS - CHANGE IN THE METHOD OF CALCULATION - IMPOSSIBLE TO RELY ON THE PRINCIPLE THAT LEGITIMATE EXPECTATIONS MUST BE PROTECTED

( COUNCIL REGULATION NO 3017/79, ART . 2 )

2 . COMMON COMMERCIAL POLICY - PROTECTION AGAINST DUMPING - DUMPING MARGIN - DETERMINATION OF THE NORMAL VALUE AND THE EXPORT PRICE - ALLOWANCES INTENDED TO ENABLE A FAIR COMPARISON TO BE MADE - CONDITIONS OF APPLICATION

( COUNCIL REGULATION NO 3017/79, ART . 2*(8 ), ( 9 ) AND ( 10 )*)

3 . COMMON COMMERCIAL POLICY - PROTECTION AGAINST DUMPING - OFFER OF PRICE UNDERTAKINGS - ACCEPTANCE - DISCRETION OF THE INSTITUTIONS

( COUNCIL REGULATION NO 3017/79, ART . 10 )

Summary

1 . ARTICLE 2 OF REGULATION NO 3017/79 DOES NOT REQUIRE THAT IN THE FRAMEWORK OF THE PROCEDURE FOR ESTABLISHING ANTI-DUMPING DUTIES THE SAME METHOD SHOULD BE USED TO CALCULATE THE NORMAL VALUE AND THE EXPORT PRICE, A COMPARISON OF WHICH ENABLES THE DUMPING MARGIN TO BE DETERMINED .

THE CHOICE BETWEEN THE VARIOUS CALCULATION METHODS SPECIFIED IN ARTICLE 2*(13)*(B ) OF REGULATION NO 3017/79 REQUIRES AN APPRAISAL OF COMPLEX ECONOMIC SITUATIONS, IN RESPECT OF WHICH THE COURT MUST LIMIT ITS REVIEW TO VERIFYING WHETHER THE RELEVANT PROCEDURAL RULES HAVE BEEN COMPLIED WITH, WHETHER THE FACTS TAKEN INTO ACCOUNT ARE ACCURATE AND WHETHER THERE HAS BEEN A MANIFEST ERROR OF APPRAISAL OR A MISUSE OF POWERS .

UNLIKE THE WEIGHTED AVERAGE METHOD OF CALCULATING THE EXPORT PRICE, THE TRANSACTION-BY-TRANSACTION METHOD MAKES IT POSSIBLE TO PREVENT CERTAIN MANOEUVRES IN WHICH DUMPING IS DISGUISED BY CHARGING DIFFERENT PRICES, SOME ABOVE THE NORMAL VALUE AND SOME BELOW IT . THE APPLICATION OF THE TRANSACTION-BY-TRANSACTION METHOD IN SUCH A SITUATION CANNOT, IN THE LIGHT OF THE PURPOSE OF THE IMPOSITION OF ANTI-DUMPING DUTIES, CONSTITUTE A MANIFEST ERROR IN THE APPRAISAL OF THE FACTS .

WHERE THE INSTITUTIONS ENJOY A MARGIN OF DISCRETION IN THE CHOICE OF THE MEANS NEEDED TO ACHIEVE THEIR POLICIES, TRADERS CANNOT CLAIM TO HAVE A LEGITIMATE EXPECTATION THAT THE MEANS ORIGINALLY CHOSEN WILL BE MAINTAINED, SINCE THESE MAY BE ALTERED BY THE INSTITUTIONS IN THE EXERCISE OF THEIR POWERS; THUS IT WAS NOT NECESSARY TO GIVE ADVANCE NOTICE THAT THE ABOVEMENTIONED METHOD WAS TO REPLACE THE METHOD PREVIOUSLY ADOPTED SO THAT THE TRADERS CONCERNED MIGHT RE-ORGANIZE THEIR COMMERCIAL PRACTICES .

2 . THE ALLOWANCES MADE UNDER ARTICLE 2*(10)*(C ) OF REGULATION NO 3017/79 ARE DIFFERENT AS REGARDS BOTH THEIR PURPOSE AND THE CONDITIONS IN WHICH THEY ARE APPLIED FROM THE ALLOWANCES MADE IN THE CONSTRUCTION OF THE EXPORT PRICE UNDER ARTICLE 2*(8)*(B ). ACCORDING TO ARTICLE 2*(8)*(B ), THE EXPORT PRICE IS TO BE CONSTRUCTED WHERE, BECAUSE THE EXPORTER AND THE IMPORTER ARE ASSOCIATED, THE PRICE AGREED FOR EXPORT IS UNRELIABLE; IN THAT CASE, THE EXPORT PRICE MUST BE CONSTRUCTED ON THE BASIS OF THE PRICE AT WHICH THE IMPORTED PRODUCT IS FIRST RESOLD TO AN INDEPENDENT BUYER . THE ADJUSTMENTS MADE UNDER ARTICLE 2*(10)*(C ) ARE INTENDED TO RECTIFY THE EXPORT PRICE OR THE NORMAL VALUE CALCULATED PURSUANT TO ARTICLE 2*(3 ) TO ( 8 ) BY REFERENCE TO OBJECTIVE FACTORS WHICH CORRESPOND TO THE PARTICULAR FEATURES OF EACH MARKET AND HAVE A VARYING IMPACT ON CONDITIONS AND TERMS OF SALE, THUS AFFECTING PRICE COMPARABILITY . UNLIKE THE ADJUSTMENTS PROVIDED FOR BY ARTICLE 2*(8 ), THE ADJUSTMENTS MADE UNDER ARTICLE 2*(10 ) ARE NOT MADE AUTOMATICALLY, AND A PARTY CLAIMING THEM MUST PROVE THAT THEY ARE NECESSARY TO ENSURE PRICE COMPARABILITY .

4 . NO PROVISION OF REGULATION NO 3017/79 COMPELS THE COMMUNITY INSTITUTIONS TO ACCEPT PRICE UNDERTAKINGS OFFERED BY TRADERS CONCERNED BY AN INVESTIGATION PRIOR TO THE IMPOSITION OF ANTI-DUMPING DUTIES . ON THE CONTRARY, IT IS CLEAR FROM ARTICLE 10 OF THE REGULATION THAT IT IS FOR THE INSTITUTIONS, IN THE EXERCISE OF THEIR DISCRETIONARY POWER, TO DETERMINE WHETHER SUCH UNDERTAKINGS ARE ACCEPTABLE .

THE REFUSAL TO ACCEPT UNDERTAKINGS CANNOT BE CRITICIZED BY THE COURT UNLESS THE REASONS ON WHICH IT IS BASED EXCEED THE MARGIN OF DISCRETION CONFERRED UPON THE INSTITUTIONS .