Keywords

Summary



Keywords

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1 . Action for annulment - Measures against which an action may be brought - Measures intended to have legal effects - Decision of the Commission rejecting an undertaking offered in the course of an anti-dumping proceeding - Intermediate measure of a preparatory nature - Excluded

( EEC Treaty, Art . 173; Council Regulation No 2176/84, Art . 10 )

2 . Action for annulment - Natural or legal persons - Measures of direct and individual concern to them - Regulation imposing anti-dumping duties - Different duties imposed on different firms - Right of action of each firm restricted to the provisions specifically concerning it

( EEC Treaty, Art . 173, second paragraph; Council Regulations Nos 2176/84 and 535/87 )

3 . Action for annulment - Natural or legal persons - Measures of direct and individual concern to them - Regulation imposing anti-dumping duties - Producers and exporters in non-member countries - Community importers and traders having a special relationship with producers

( EEC Treaty, Art . 173, second paragraph; Council Regulations Nos 2176/84 and 535/87 )

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

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

5 . Common commercial policy - Protection against dumping - Injury - Community industry involved - Exclusion of certain producers 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 ) )

6 . Common commercial policy - Protection against dumping - Appraisal of Community interests by the institutions - Review by the Court - Limits

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

7 . Common commercial policy - Protection against dumping - Offer of undertakings - Traders which may be permitted to give undertakings - Exporters and, in exceptional cases, importers

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

Summary

1 . The rejection by the Commission of a proposed undertaking in the course of an anti-dumping proceeding is not a measure having binding legal effects of such a kind as to affect the interests of the traders concerned, because the Commission may revoke its decision or the Council may decide not to introduce an anti-dumping duty . Such a rejection is an intermediate measure whose purpose is to prepare for the final decision, and is not therefore a measure which may be challenged by an action for its annulment .

It is by challenging the regulation introducing definitive anti-dumping duties that traders can raise any irregularity associated with the rejection of their proposed undertakings .

2 . A regulation imposing different anti-dumping duties on a series of traders is of direct concern to any one of them only in respect of those provisions which impose on that trader a specific anti-dumping duty and determine the amount thereof, and not in respect of those provisions which impose anti-dumping duties on other undertakings .

3 . Regulations introducing an anti-dumping duty are legislative in nature and scope, inasmuch as they apply to all traders generally . Nevertheless, it is conceivable that some provisions of those regulations may be of direct and individual concern to those producers and exporters of the product in question who are alleged on the basis of information about their business activities to be dumping .

This is true in general of producers and exporters who are able to establish that they were identified in the measures adopted by the Commission or the Council or were concerned by the preliminary investigations .

The same is true of those importers whose resale prices were taken into account for the construction of export prices, and those traders, limited in number and identified by the institutions, whose business dealings with the producer of the products concerned display particular features which were taken into account in the construction of the normal value and in the calculation of the weighted dumping margin on the basis of which the anti-dumping duty was fixed .

4 . The fact that Article 2(8)(b ) of Regulation No 2176/84 mentions only the allowances to be made for all costs incurred between importation and resale does not preclude the making of allowances, when the export price is constructed on the basis of the price paid by the first independent purchaser, to take account of the costs associated with the activities prior to importation of a subsidiary of the exporting manufacturer, where such costs are normally borne by the importer and, in practice, reduce the amount received by the exporting manufacturer .

5 . Article 4(5 ) of 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 justifying the imposition of an anti-dumping duty, 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 .

6 . The question whether, in the event of dumping by producers in non-member countries, 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 .

7 . Article 10 of Regulation No 2176/84 does not rule out the possibility for the Commission of accepting an undertaking offered by an importer, but its wording implies that such an undertaking may be accepted only in exceptional cases . Article 10(4 ) and ( 6 ), dealing with the continuation of the investigation after the acceptance of undertakings and the introduction of anti-dumping duties after the withdrawal of an undertaking or the discovery that it has been infringed, refers only to exporters, that is to say, those traders whose undertakings may a priori be accepted .