Keywords

Summary



Keywords

1. Common commercial policy – Protection against subsidisation by non-member countries – Subsidy for the acquisition of fixed assets

(Council Regulation No 2026/97, Art. 7(3))

2. Common commercial policy – Protection against subsidisation by non-member countries – Subsidy for the acquisition of fixed assets

(Council Regulation No 2026/97, Art. 7(3))

3. Common commercial policy – Protection against subsidisation by non-member countries – Assessment of the subsidy and injury

(Council Regulation No 2026/97, Art. 11(1))

4. Common commercial policy – Protection against subsidisation by non-member countries – Determination of the depreciation period

(Council Regulation No 2026/97)

5. Common commercial policy – Protection against subsidisation by non-member countries – Investigation

(Council Regulation No 2026/97, Art. 30(1) and (2))

6. Common commercial policy – Protection against subsidisation by non-member countries – Injury

(Council Regulation No 2026/97)

7. Common commercial policy – Protection against subsidisation by non-member countries – Injury

(Council Regulation No 2026/97)

8. Common commercial policy – Protection against subsidisation by non-member countries – Injury

(Council Regulation No 2026/97)

9. Common commercial policy – Protection against subsidisation by non-member countries – Injury

(Council Regulation No 2026/97)

10. Common commercial policy – Protection against subsidisation by non-member countries – Injury

(Council Regulation No 2026/97, Art. 8(7))

Summary

1. In the sphere of measures to protect trade, review by the Community judicature of assessments made by the institutions must be limited to establishing whether the relevant procedural rules have been complied with, whether the facts on which the contested choice is based have been accurately stated and whether there has been a manifest error of assessment of the facts or a misuse of power.

The same is true with regard to the assessment of the depreciation period under Article 7(3) of Regulation No 2026/97 on protection against subsidised imports from countries not members of the European Community, which provides that the subsidy relating to the acquisition of fixed assets is to be spread ‘across a period which reflects the normal depreciation of such assets in the industry concerned’. It is apparent from the wording and the scheme of that provision, which requires in particular an assessment of normal practice in the industry concerned, that the determination of the period in question is part of the wide discretion enjoyed by the Community institutions in the analysis of complex economic situations.

(see paras 28-29)

2. Article 7(3) of Regulation No 2026/97 on protection against subsidised imports from countries not members of the European Community does not contain any specific rules on the factors to be taken into account in determining the normal depreciation period in the industry concerned the purpose of which is to calculate the amount of the advantage obtained by the exporter on the purchase of fixed assets attributable to the investigation period. The Community institutions therefore enjoy a wide discretion, which the relevant guidelines adopted by the Commission have not restricted, with regard to the factors which may be considered to be relevant.

To the extent that depreciation is regulated in the third country concerned, the method of depreciation provided for under national law may be relevant in that regard. The fact that the Community institutions did not use the method in question in other anti-subsidy investigations does not lead, in itself, to infringement of that provision.

Likewise, when the applicable legislation leaves the institutions a certain discretion, the fact that they exercise that discretion without explaining in detail and in advance the criteria which they intend to apply in every situation does not infringe the principle of legal certainty, even where the institutions create new policy options.

(see paras 40-46, 67, 88, 104)

3. Article 11(1) of Regulation No 2026/97 on protection against subsidised imports from countries not members of the European Community provides, inter alia, that information relating to a period subsequent to the investigation period is not, normally, to be taken into account to determine subsidisation and injury. Consequently, the relevant information for the purposes of the analysis conducted by the Community institutions is normally that relating to a period ending with the investigation period. Nevertheless that provision does not preclude taking into account forecasts of future events in the analysis of that information, in so far as those forecasts are relevant and based on objective evidence obtained during the investigation.

(see para. 92)

4. An investigation in the sphere of measures to protect trade is an ongoing process during which many findings are constantly revised. It cannot therefore be ruled out that the definitive findings made by the Community institutions, such as those relating to the depreciation period, will differ from the findings made at any other stage of the investigation.

(see para. 114)

5. Under Article 30(1) and (2) of Regulation No 2026/97 on protection against subsidised imports from countries not members of the European Community, the exporters concerned may request final disclosure of the essential facts and considerations on the basis of which it is intended to recommend the imposition of definitive measures. That obligation of final disclosure is to ensure respect for the rights of the defence of the undertakings concerned.

Furthermore, the undertakings affected by an investigation preceding the adoption of definitive measures must be placed in a position during the administrative procedure in which they can effectively make known their views on the correctness and relevance of the facts and circumstances alleged.

In that respect, the fact that final disclosure is incomplete renders the regulation imposing definitive duties unlawful only if, as a result of the omission, the parties were not in a position to defend their interests effectively.

(see paras 125-127)

6. The Community institutions have wide discretion in determining what period is to be considered for the purpose of determining injury in proceedings against subsidisation by non-member countries.

They may determine injury over a period longer than that covered by the investigation. That possibility is justified by the fact that the study of economic trends must be carried out over a sufficiently long period.

(see paras 161-162)

7. In proceedings against subsidisation by non-member countries, the existence of injury must be assessed as a whole and it is not necessary to define separately the effect of the imports carried out by each of the companies responsible. The Community institutions do not commit a manifest error in that assessment where they base their findings on the information reasonably available to them.

(see para. 168)

8. In proceedings against subsidisation by non-member countries, in order to carry out a study of economic trends the Community institutions may lawfully take into account developments observed in respect of the Community industry during the whole period considered, including the years in which imports were still below significant levels.

(see para. 176)

9. In proceedings against subsidisation by non-member countries, the injury investigation must relate a set of factors, any one of which cannot alone be the basis for a conclusive decision. The positive development of a factor does not preclude a finding of significant injury, provided that that finding is based on various factors which Regulation No 2026/97 requires to be taken into consideration.

In a dispute concerning the overall assessment of injury, an applicant cannot merely propose its interpretation of the different economic factors but must state the reasons for which the Community institutions should have reached a different conclusion on injury on the basis of those factors.

(see paras 213, 216)

10. Article 8(7) of Regulation No 2026/97 on protection against subsidised imports from countries not members of the European Community provides for the obligation to examine known factors which are injuring the Community industry at the same time as the subsidised imports. That examination must enable the possibility that the injury caused by those other factors is attributable to the imports in question to be ruled out. Those factors include, inter alia, the volume and prices of non-subsidised imports. They may also include anti-competitive behaviour involving Community producers.

Accordingly, if the Community industry concerned was faced, in the period concerned, with other factors such as, for example, dumped imports coming from non-member countries, the Community institutions are required, in determining the injury caused by the imports, to examine whether the effect of those other factors was such as to break the causal link between the subsidised imports and the injury caused to the Community industry.

That examination does not necessarily entail a determination of the precise effects of the factor at issue. It suffices for the Community institutions to find that, despite such an external factor, the injury caused by the imports in question was material.

Accordingly, the mere fact that those other factors may have contributed to the injury caused to the Community industry during a part of the period considered cannot mean that the possibility that the subsidised imports also caused material injury in the same period is ruled out.

It is possible to attribute to the imports considered responsibility for injury even if their effects are merely part of more extensive injury attributable to other factors. The possibility that injury may be caused simultaneously by several factors, each of which taken in isolation amounts to the cause of material injury, cannot therefore be excluded from the outset.

Accordingly, the presence of a significant external factor does not automatically break the causal link between the imports in dispute and the injury caused to the Community industry.

(see paras 230-232, 236-238, 260, 269)