Commission notice concerning the reimbursement of anti-dumping duties
Date: 2002-05-29
Institutions: European Commission
Subjects: anti-dumping duty, redemption

C 127/10

EN

Official Journal of the European Communities

29.5.2002

COMMISSION NOTICE CONCERNING THE REIMBURSEMENT OF ANTI-DUMPING DUTIES

(2002/C 127/06)

replace

guidelines

In view of

those published

the significant amendments

This notice sets out the guidelines regarding the application of
Article 11(8) of Council Regulation (EC) No 384/96 (1)
(the
‘basic Regulation’) on the reimbursement of anti-dumping
duties (2). These
in
1986 (3).
to the
provisions on refund of anti-dumping duties it has been
considered appropriate to publish an updated version of the
guidelines. The purpose of the guidelines is to clarify for the
different parties involved in a refund procedure the conditions
to be fulfilled by an application and give a comprehensive
step-by-step explanation of the procedure which may lead to
a reimbursement.

1. AIM

The refund procedure is intended to allow for the reim-
bursement of anti-dumping duties which have already been
the dumping margin on the
paid where it
basis of which duties were paid has been eliminated or
reduced to a level below that of the duty in force.

is shown that

2. BASIC PRINCIPLES GOVERNING A REFUND PROCEDURE

The main principles which follow intend to provide a quick
guide through the refund procedure detailed under 3:

2.1. What are the conditions to be fulfilled?

(a) Applications for refunds pursuant to Article 11(8) of the
basic Regulation based must demonstrate that the dumping
margin on the basis of which duties were paid has been
reduced or
the
provisions of Chapter 5 of Title VII of the Community
Customs Code
import
duties may apply (4).

concerning the

repayment of

circumstances,

eliminated.

In other

(1) Council Regulation (EC) No 384/96 of 22 December 1995 on
protection against dumped imports from countries not members
of the European Community (OJ L 56, 6.3.1996, p. 1), as last
amended by Regulation (EC) No 2238/2000 (OJ L 257,
11.10.2000, p. 2.

(2) Until

the expiry of

the ECSC Treaty on 23 July 2002 these
guidelines remain applicable, mutatis mutandis, to Article 11(8) of
Commission Decision No 2277/96/ECSC of 28 November 1996 on
protection against dumped imports from countries not members of
the European Coal and Steel Community (OJ L 308, 29.11.1996, p.
11), as last amended by Decision No 435/2001/ECSC (OJ L 63,
3.3.2001, p. 14). Requests for refunds received pursuant to Article
11(8) of the above Decision will be governed by the EC Regulation
as of 24 July 2002.

(3) Commission notice concerning the reimbursement of anti-dumping

duties (OJ C 266, 22.10.1986, p. 2).

(4) Council Regulation (EEC) No 2913/92 of 12 October 1992 estab-
lishing the Community Customs Code (OJ L 302, 19.10.1992, p. 1)
as last amended by Regulation (EC) No 2700/2000 (OJ L 311,
12.12.2000, p. 17).

(b) Applications may only be submitted in respect of trans-
actions for which anti-dumping duties have been fully
paid. The lodging by an applicant of a security in
accordance with Article 248 of Commission Regulation
the Community
No
(EEC)
Customs Code (5)
to
equivalent
payment. Therefore applications corresponding to impor-
tations for which a security has been lodged cannot be
considered to be admissible (6).

implementing
not

2454/93
is

considered

2.2. Who is entitled to apply for a refund?

(a) Any importer who can demonstrate that he has paid anti-
dumping duties either directly or indirectly for a specific
importation may apply for a refund.

exporting producers

(b) Where anti-dumping duties were imposed further to an
investigation in which the Commission resorted to a
to assess dumping
sample of
pursuant
those
parties importing a product are not excluded from the
refund procedure. This is the case whether or not the
importers' exporting producers were part of the original
sample.

the basic Regulation,

to Article 17 of

2.3. How is the revised dumping margin established?

(a) The investigation will establish a dumping margin in
respect of all exports of the product concerned made by
the exporting producer in the case in question to all
importers
in the Community and not only to the
importer claiming a refund, during a representative period.

(b) Consequently, the investigation will cover all models falling
under the product definition set out
in the Regulation
imposing the anti-dumping duties and not only those
models imported into the Community by the applicant.

(c) Unless circumstances have changed, the same methodology
as the one applied during the original investigation will be
followed.

(5) Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying
down provisions for the implementation of Council Regulation
(EEC) No 2913/92 (OJ L 253, 11.10.1993, p. 1).

(6) When an importer is contesting the validity of applying anti-
(whether or not this action
dumping duty to his transaction(s)
the duties), or when the national
the payment of
suspends
authority has taken a guarantee against potential liability to anti-
dumping duty, the importer should nonetheless (if he so wishes)
introduce an application for a refund of anti-dumping duties within
the six-month time limit
the
Commission suspend the investigation until liability to the duties
has been finally established.

together with a request

that

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Official Journal of the European Communities

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2.4. Whose cooperation is required?

3. PROCEDURE

Successful completion of a refund application is dependent on
both the cooperation of the applicant and that of the exporting
producer. The applicant should try to ensure that the exporting
producer submits the relevant information to the Commission.
This will involve the completion of a questionnaire which may
require researching all relevant commercial data for a defined
period in the past and accepting an examination to establish
the accuracy of such information including an on-spot verifi-
cation visit. An exporting producer cannot ‘partially cooperate’
by submitting only selective data. Any such approach would
lead the Commission to the conclusion that he was not coop-
erating and to the rejection of the application.

2.5. How is confidential information protected?

The rules of confidentiality as laid down in Article 19 of the
information received in
basic Regulation apply
to all
connection with applications for
refunds of anti-dumping
duties.

2.6. What are the deadlines?

There are two stages in the procedure for establishing whether
anti-dumping duties are refundable:

— lodging of the application,

— investigation of the claim.

3.1. Lodging of the application

3.1.1. Form of the application

The application must be submitted in writing,
in an official
language of the Community and signed by the applicant or a
person empowered to represent the applicant.

The application shall contain:

(i) a statement claiming a refund and declaring that

the
dumping margin of the applicant's exporting producer(s)
on the basis of which the above duties have been paid has
decreased or been eliminated;

(a) Applications pursuant to Article 11(8) of the basic Regu-
lation must be submitted to the competent authorities of
the Member State in which the goods were cleared for
entry into free circulation within six months of the date
of determination of the anti-dumping duties due on those
goods.

(ii) a declaration stating that

the anti-dumping duties for

which a refund is sought have been fully paid;

(iii) an indication of the total amount for which a refund is
sought and identification of the specific transactions on
which that total is based.

(b) The Commission shall normally decide on the refund of
any duties within 12 months, and in no circumstances
within more than 18 months, from the date on which
the Commission received a request for refund which was
considered to be duly supported by sufficient evidence.

(c) Should a refund be granted, Member States authorities will
have ninety days from the date of notification of
the
Commission refund Decision in which to effect payment.

2.7. How much may be refunded?

If the admissibility and merits of the application are estab-
lished, the refund may amount to:

— a part of the anti-dumping duties paid when the dumping

margin has decreased,

or

— all of the anti-dumping duties paid when the dumping

margin has been eliminated.

the

For
applicant,
application form is attached to this notice.

convenience of

the

a pre-formatted

To enable the Commission to progress the refund investigation
more rapidly, the applicant may enclose in its application any
relevant document(s) or supporting evidence which it will be
required to submit in accordance with point 3.2.1 below.

3.1.2. Submission of the application

The application must be submitted to the competent auth-
orities of the Member State on whose territory the product
concerned by the anti-dumping duties was released for free
circulation.

The Member State shall immediately forward the application to
the Trade Directorate of the European Commission, B-1049
Brussels. The Commission may subsequently refer
to the
Member State for verification of receipt of full payment of
the anti-dumping duties concerned.

Where appropriate the Commission will
inform the parties
directly concerned of any application for the reimbursement
of anti-dumping duties and will afford those parties an oppor-
tunity to comment.

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Official Journal of the European Communities

29.5.2002

3.1.3. Time-limits for the submission of an application

(a) Six-month time-limit

— the date of receipt of a fax by the Member State's
competent authority can be determined by reference
to the date indicated on the successful transmission
report and the fax journal.

All applications for reimbursement must be introduced to
the appropriate Member State within the six-month time-
limit (1) set out in Article 11(8) (second indent) of the basic
Regulation.

In meeting the six-month time-limit for the submission of
an application,
it should be borne in mind that even in
cases where a regulation imposing the duty in question is
being challenged before the Court of First Instance of the
European Communities or the application of the regulation
is being challenged before national administrative or
judicial bodies,
six months must be
respected.

the deadline of

Depending on each specific case, the six-month time-limit
will be counted from:

— the date of entry into force of a Council regulation
imposing definitive duties and collecting amounts
secured by way of provisional duty,

or

— the date of determination of the definitive anti-dumping
the customs
the date of acceptance of

duties,
declaration by the customs authorities,

i.e.

or

3.1.4. Recurring applications

As soon as the applicant is aware that he intends to submit
more than one application for reimbursement of anti-dumping
duties levied on the product concerned he should notify the
Commission. This information is requested in order that the
Commission might structure the investigation in the most
efficient and effective way.

3.2. Investigation

3.2.1. Evidence requested from the applicant

The Commission will notify the applicant of the information to
be submitted specifying a reasonable period of time within
which the requested evidence must be submitted. This will
include:

(a)

invoice(s)
procedures were based;

and other documents on which customs

(b) customs documents identifying the import transactions for
which a refund is sought showing, specifically, the basis for
determining the amount of the duties to be levied (the type,
quantity and value of the goods declared and the rate of
anti-dumping duties applied) as well as the precise amount
of the anti-dumping duties levied;

— where the correct amount of duties is established
pursuant to a post-clearance check, the latter date of
determination of the duties payable applies.

(c) declarations that:

Any application must meet all of the requirements set in
point 3.1.1 above within this six-month time limit.

(i) the duty collected has not been reimbursed by the
exporting producer or by any third party, and that
no future reimbursement will be made or accepted;

(b) Date of submission of the application

When forwarding the application to the Commission the
Member State must indicate the date of submission of the
the date on which the Member State's
application,
competent
the
application.

i.e.
authority

effectively

received

has

(ii) the prices on which the application is based are

genuine;

(iii) there is no compensatory arrangement made before,
sale(s) under
simultaneously with the

since or
consideration;

For their own benefit applicants should obtain evidence of
the receipt of their application at the offices of the appro-
priate Member State. For instance:

— postal applications can be sent by registered mail
accompanied by a form for acknowledgement of
receipt,

(1) For computation of time-limits in general, see Council Regulation
(EEC, Euratom) No 1182/71 of 3 June 1971 determining the rules
applicable to periods, dates and time-limits (OJ L 124, 8.6.1971,
p. 1).

(d) where the applicant is not associated with the exporting
producer, and where the relevant
information is not
the application shall contain a
immediately available,
statement from the exporting producer that the dumping
margin has been reduced or eliminated and that he will
provide to the Commission all the relevant supporting data
(i.e. information regarding normal values and export prices
for a period during which his goods were exported directly
or indirectly to the Community and on which the duties
have been charged). An appropriate representative period
for analysis will be determined later by the Commission
(see point 3.2.2 below);

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(e) where importers have paid duties on the basis of measures
imposed further to an original investigation conducted by
reference to a sample of exporting producers pursuant to
Article 17 of the basic Regulation, applicants are under no
obligation to submit data with reference to the group of
exporting producers originally sampled but need only
submit
information concerning their own
the relevant
exporting producer(s).

Parties supplying information should be aware that the
Commission may verify any of
information or
evidence received.

the

3.2.3. Analysis of merits

(a) General methodology

Copies from originals of invoices, customs entry forms etc.
must be provided with a declaration of
their authenticity
from the applicant or his exporting producer as the case
In addition, such documents, or the translations
may be.
the
thereof, should be in one of
Community.

languages of

the official

To enable the Commission to progress the refund investigation
more rapidly, the applicant may already enclose the above-
in its application submitted to the
mentioned evidence
the relevant Member State. The
competent authorities of
Commission will
application
then consider whether
contains all of the information requested from the applicant.
If need be, the Commission will notify the applicant of the
information still to be submitted and will specify a reasonable
period of time within which the requested evidence must be
submitted.

the

3.2.2. Evidence requested from the exporting producer

(a) Representative period

the purpose of determining the revised dumping
For
margin,
the Commission will specify the representative
period to be investigated which will normally include the
date(s) of invoicing of the transaction(s) for which a reim-
bursement is sought. This period will normally cover a
minimum of six months and include a period prior to
the date of
transaction by the
exporting producer.

invoicing of

the first

(b) Questionnaires

The revised dumping margin will be established by
comparing for the representative period:

— the normal value(s)

for

the exported products

in

question

— and the export price(s),

in accordance with the relevant provisions of Article 2 of
the basic Regulation.

Article 11(9) of the basic Regulation provides for the use of
‘the same methodology as in the original
investigation
which led to the duty, with due account being taken of
Article 2 (Determination of dumping), and in particular
paragraphs 11 and 12 thereof (Use of weighted averages
in calculating the dumping margin), and of Article 17
(Sampling)’.

Where the number of exporting producers,
types of
product or transactions concerned by requests submitted
over a period of six months counted from the date of
the first request or twelve months counted
lodging of
imposition of definitive measures,
from the date of
is so large that individual exam-
whichever is the later,
and prevent
inations would be unduly burdensome
the
completion of
Commission may base the calculation of
the revised
dumping margin on a sample of the exporting producers,
concerned by the
types of product or
application(s) on the basis of the provisions of Article 17
of the basic Regulation, in particular paragraph 3.

investigation in good time,

transactions

the

to Article 6(2) of

the basic Regulation,

the
Pursuant
exporting producer(s) who supplied the applicant and,
where appropriate, the related importer(s) will be asked
to submit
sales on the
Community market, and not only sales to the applicant.

information concerning all

For purposes of confidentiality, the exporting producer may
send such information directly to the Commission. The
information will be sought by means of a questionnaire
to be sent to the applicant's exporting producer(s) (and to
any related importer(s) in the Community) with replies due
within 37 days of the date of despatch.

When all
information and the completed questionnaires,
(including replies to any material deficiencies which may
have been identified in the reply), have been received by
the Commission,
application will only then be
considered to be duly supported by evidence.

the

(b) Construction of the export price

the Commission shall

Where the export price appears to be unreliable and is thus
constructed pursuant to Article 2(9) of the basic Regu-
it with no
lation,
deduction for the amount of anti-dumping duties paid
when conclusive evidence is provided that
the duty is
duly reflected in resale prices and the subsequent selling
prices in the Community.

calculate

(c) Use of review findings

the
When examining any application for a
Commission may decide at any time to initiate an
interim review in accordance with Article 11(3) of the
basic Regulation. The procedure regarding the application
for refund will be suspended until the review investigation
is completed.

refund,

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The findings of the review investigation may be used to
determine the merits of a refund application provided that
the date of invoicing of the transactions for which a refund
is being claimed fall within the investigation period of the
review.

(d) Extrapolation

3.2.5. Disclosure

the merits of

Once the investigation of
the application is
completed importers will receive disclosure of the essential
facts and considerations on the basis of which the Commission
intends to adopt a decision on the refund application, whereas
cooperating exporting producers may only receive information
on the treatment of their particular data, notably the resulting
calculations of normal value and export prices.

Notwithstanding point (c) above, for purposes of adminis-
trative efficiency, the dumping margin established for any
investigation period may be extrapolated for import trans-
actions not covered by that period. However this may only
be done under certain specified conditions:

4. OUTCOME

4.1. Excess amount to be repaid

— extrapolation may only be implemented for a period
immediately adjacent to a period which has been inves-
tigated,

The excess amount to be reimbursed to the applicant will
normally be calculated as the difference between the duty
collected and the actual duties due, based on the dumping
margin established in the investigation, as an absolute sum.

— the maximum period for which an investigation's

results might be extrapolated is six months,

4.2. Payment

— extrapolation may only be applied when the dumping
margin has been established on the basis of a
completed investigation,

— extrapolation may only be applied to a sum of duties
in the context of the entire

which is relatively small
refund application.

The reimbursement should normally be paid within ninety days
of the date of the notification of the refund decision.

Whether or not any payment made after 90 days gives rise to
the payment of interest remains subject to the national legis-
lation of each Member State.

3.2.4. Non-cooperation

4.3. Revocation of a decision to reimburse

In cases in which the applicant or the exporting producer:

— supplies false or misleading information,

or

— refuses access to relevant

information or not does not

provide it within a reasonable period of time,

or

— significantly impedes the investigation, including impeding
the verification of the information to the extent deemed
necessary by the Commission,

the information will be disregarded and use may be made of
the facts available pursuant to Article 18 of the basic Regu-
lation.

the parties

it will be revoked retroactively.

Where it
is subsequently found that a decision granting a
refund has been adopted on the basis of false or incomplete
interested in the
information provided by
procedure,
Indeed, the fact
that a refund decision has been based on false or incomplete
information amounts to the absence of an objective legal basis
this decision, which therefore deprives ab initio the
for
importer concerned of
to obtain a refund and
justifies the revocation of the said decision.

the right

As a result of such revocation, the refunded amounts corre-
sponding to the original anti-dumping duties will become
subject to collection.

the Member State

Once the Commission has adopted a decision to revoke a
this
refund,
decision is correctly implemented within its
territory by
recovering the amounts unduly refunded under Article 11(8)
of the basic Regulation.

concerned ensures

that

the dumping margin established during the
In such cases,
investigation which led to the imposition of
the duty for
which a reimbursement is claimed will normally be considered
to be the best available evidence.
It would therefore be
considered that the dumping margin had not decreased and
the application would be rejected.

The competent authorities of the Member State concerned,
when implementing such a decision, act in accordance with
the procedural and substantive rules of their own national law
provided that the application of national law does not affect
the scope and effectiveness of the Commission decision to
revoke its former decision granting a refund.

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