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 company controlled by the manufacturer - Recourse to selling prices applied by that company - 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 and the export price - Selling, administrative and other general expenses of sales subsidiaries - Different systems - Possible application of allowances for which provision is made for the purposes of the comparison between the normal value and the export price

(Council Regulation No 2176/84, Art. 2(3)(b)(ii), (8)(b), (9) and (10)(c))

3. Common commercial policy - Protection against dumping practices - Dumping margin - Determination of the export price - Construction on the basis of the price paid by the first independent purchaser - Allowances to take account of costs associated with the activities prior to importation of a subsidiary of the exporting manufacturer - Whether legal

(Council Regulation No 2176/84, Art. 2(8)(b))

4. Common commercial policy - Protection against dumping practices - Dumping margin - Comparison between the normal value and the export price - Allowances - Differences in the level of trade - Burden of proof

(Council Regulation No 2176/84, Art. 2(9) and (10)(c))

5. Common commercial policy - Protection against dumping practices - Dumping margin - Comparison between the normal value and the export price - Allowances - Differences in conditions and terms of sale - Account taken subject to the existence of a direct link with the sales considered - Costs not having such a link - Exclusion

(Council Regulation No 2176/84, Art. 2(10)(c))

6. 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))

Summary

1. It appears from the wording and scheme of Article 2(3) of the basic anti-dumping regulation, Regulation No 2176/84, that regard must primarily be had to the price actually paid or payable in the ordinary course of trade in order to establish the normal value, the other methods specified in that provision being merely subsidiary.

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 a distribution company for its products which it controls financially and with which it forms a single economic entity, the fact that the institutions took the prices paid by the first purchaser who was independent of the sales subsidiary 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 Regulation No 2176/84. By taking into consideration the sales subsidiary' s prices, it is possible to ensure that costs which manifestly form part of the selling price of a product where the sale is made by an internal sales department of the manufacturing organization are not left out of account where the same selling activity is carried out by a company which, despite being financially controlled by the manufacturer, is a legally distinct entity.

2. Determination of the normal value and determination of the export price are governed by separate rules and therefore selling, administrative and other general expenses incurred by sales subsidiaries need not necessarily be treated in the same way in both cases.

Selling, administrative and other general expenses of a sales subsidiary controlled by the manufacturer, which acts as an internal sales department on the domestic market, are in reality only comparable to those of its export department, whose equivalent expenses are not deducted from the export price, not to those of its European subsidiaries. Any differences in the amount of those expenses could be taken into account under the allowances provided for in Article 2(10)(c) of the basic anti-dumping regulation, Regulation No 2176/84.

3. When, for reasons other than those referred to in Article 2(8)(b) of the basic anti-dumping regulation, Regulation No 2176/84, the export price is constructed on the basis of the price paid by the first independent purchaser, the price must be adjusted to reflect the costs and profits inherent in the activities pursued by a subsidiary of the manufacturer through which export sales are realized with regard to handling customers' orders, sending out invoices and receiving payments. The costs incurred by the subsidiary in those activities effectively reduce the amount received by the exporter and Article 2(8)(b) of the regulation does not preclude the making of the necessary allowances to take account of those costs even if they relate to activities prior to importation.

4. 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. Trade-in discounts granted to buyers of new models when old models are traded in, corresponding to the value which the manufacturer attaches to withdrawal of the used machines from the market, transport costs incurred by the manufacturer on sales to its sales subsidiary, corresponding to an internal transfer of products from one to the other, and expenses incurred by salesmen in their sales activities, which in principle form part of overheads and general expenses, cannot be regarded as bearing a direct relationship to sales within the meaning of Article 2(10)(c) of the basic anti-dumping regulation, Regulation No 2176/84, so as to justify an allowance reducing the normal value on the ground of differences in conditions and terms of sale.

6. 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.