Keywords

Summary



Keywords

1. Common commercial policy - Protection against dumping - Dumping margin - Determination of normal value - Exhaustive nature of the situations provided for in the opening wording of Article 2(3)(b) of the basic anti-dumping regulation, authorising the Community institutions to depart from the method of establishing the normal value on the basis of the actual price - Recourse to the constructed value method where a product enjoys patent protection in the exporter's domestic market - Creation of a situation not provided for by Article 2(3) of the regulation - Excluded

(Council Regulation No 2423/88, Art. 2(3)(a) and (b))

2. Common commercial policy - Protection against dumping - Regulation imposing a definitive anti-dumping duty - Unlawfulness, on account of an infringement of the rights of the defence, of the regulation imposing a provisional anti-dumping duty - Effect on the lawfulness of the regulation imposing a definitive duty - Conditions

(Council Regulation No 2423/88, Art. 7(4))

Summary

1. Article 2(3) of the basic anti-dumping regulation, Regulation No 2423/88, prescribes three separate methods for establishing the normal value. The first method, laid down in Article 2(3)(a), consists of determining the normal value on the basis of the actual price, that is to say, the comparable price actually paid or payable in the ordinary course of trade for the like product intended for consumption in the exporting country or country of origin. According to the second method, provided for in Article 2(3)(b)(i), the normal value is to be established on the basis of the comparable price of the like product when exported to any third country. Lastly, under the third method, prescribed in Article 2(3)(b)(ii), the normal value is to be calculated on the basis of a constructed value. The opening words of Article 2(3)(b) of the regulation state that the Community institutions are required to have recourse to the latter two methods when there are no sales of the like product in the ordinary course of trade on the domestic market of the exporting country or country of origin, or when such sales do not permit a proper comparison.

According to the wording and scheme of Article 2(3)(a), in order to establish the normal value regard must be had primarily to the price actually paid or payable in the ordinary course of trade. It is apparent from Article 2(3)(b) that that principle can be derogated from only when there are no sales of the like product in the ordinary course of trade or when such sales do not permit a proper comparison. The ordinary course of trade is a concept which relates to the nature of the sales themselves. It is designed to exclude, for the determination of the normal value, situations in which sales on the domestic market are not made under conditions corresponding to the ordinary course of trade, in particular where a product is sold at a price below production costs or where transactions take place between parties which are associated or have a compensatory arrangement with each other. Lastly, the requirement that sales on the exporter's domestic market must permit a proper comparison is concerned with the question whether those sales are sufficiently representative to serve as a basis for the determination of the normal value. Transactions on the domestic market must reflect normal behaviour on the part of purchasers and result from normal patterns of price formation.

It follows that the argument that recourse must also be had to the calculation method based on a constructed normal value where, on account of the product being protected by a patent on the exporter's domestic market, the price of the product on that market is not comparable with the export price adds to the two situations exhaustively set out in the opening words of Article 2(3)(b) of the regulation a further situation which that provision does not envisage, and must therefore be rejected.

( see paras 33-43 )

2. The legality of a definitive regulation providing for the collection of the provisional anti-dumping duty may be affected by any illegality of the provisional regulation only in so far as that illegality is reflected in the definitive regulation.

The fact that the exporter has not been informed in due time of the imposition of the provisional duty cannot affect the definitive collection of that duty, since it had the opportunity of making known its arguments before the definitive regulation was adopted.

It follows that the Court of First Instance rightly held that even if the principle of the right to a fair hearing requires exporters to be informed of the essential facts and considerations on the basis of which it is intended to impose provisional duties, a failure to respect that right cannot in itself have the effect of vitiating the regulation imposing definitive duties where, in the course of the procedure for the adoption of the latter regulation, the defect vitiating the procedure for the adoption of the corresponding regulation imposing provisional duties was remedied.

( see paras 65-67 )