Council Regulation (EC) No 1972/2002 of 5 November 2002 amending Regulation (EC) No 384/96 on the protection against dumped imports from countries not members of the European Community
Date: 2002-11-05
Institutions: Council of the European Union
Subjects: anti-dumping duty, anti-dumping legislation, common commercial policy, dumping, import, third country

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Official Journal of the European Communities

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I

(Acts whose publication is obligatory)

COUNCIL REGULATION (EC) No 1972/2002

of 5 November 2002

amending Regulation (EC) No 384/96 on the protection against dumped imports from countries
not members of the European Community

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Commu-
nity, and in particular Article 133 thereof,

Having regard to the proposal from the Commission,

line with world-market
domestic prices being out of
prices or prices
representative markets.
in other
Obviously, any clarification given in this context cannot
be of an exhaustive nature in view of the wide variety of
possible particular market situations not permitting a
proper comparison.

Whereas:

By Regulation (EC) No 384/96 (1), the Council adopted
common rules for protection against dumped imports
from countries which are not members of the European
Community.

(4)

(1)

(2)

(3)

It is expedient to give guidance as to when parties may
be considered as being related for the purpose of deter-
mining dumping. Article 143 of Commission Regulation
(EEC) 2454/93 of 2 July 1993 laying down provisions
for the implementation of Council Regulation (EEC) No
2913/92 establishing the Community Customs Code (2)
contains such a definition which reflects the definition
set out in Article 15.4 of the Agreement on Implementa-
tion of Article VII of the General Agreement on Tariffs
and Trade 1994 (3).

Article 2(3) of Regulation (EC) No 384/96 stipulates,
inter alia, that where because of a particular market situa-
tion sales of the like product do not permit a proper
comparison, the normal value is to be calculated on the
basis of the cost of production in the country of origin
plus a reasonable amount for selling, general and admin-
istrative costs and for profits, or on the basis of the
export prices,
in the ordinary course of trade, to an
appropriate third country provided that those prices are
representative. It is prudent to provide for a clarification
as to what circumstances could be considered as consti-
tuting a particular market situation in which sales of the
like product do not permit a proper comparison. Such
circumstances can, for example, occur because of the
existence of barter-trade and other non-commercial
processing arrangements or other market impediments.
As a result market signals may not properly reflect
supply and demand which in turn may have an impact
on the relevant costs and prices and may also result in

(1) OJ L 56, 6.3.1996, p. 1. Regulation as last amended by Regulation

(EC) No 2238/2000, OJ L 257, 11.10.2000, p. 2.

(2) OJ L 253, 11.10.1993, p. 1. Regulation as last amended by
Commission Regulation (EC) No 444/2002, OJ L 68, 12.3.2002, p.
11.

(3) OJ L 336, 23.12.1994, p. 119.

the product under consideration,

It is considered appropriate to give some guidance as to
what has to be done if, pursuant to Article 2(5) of Regu-
lation (EC) No 384/96, the records do not reasonably
reflect the costs associated with the production and sale
of
in particular in
situations where because of a particular market situation
sales of the like product do not permit a proper compar-
ison. In such circumstances, the relevant data should be
obtained from sources which are unaffected by such
distortions. Such sources can be the costs of other
producers or exporters in the same country or, where
such information is not available or cannot be used, any
other reasonable basis, including information from other
representative markets. The relevant data can be used
either for adjusting certain items of the records of the
party under consideration or, where this is not possible,
for establishing the costs of the party under considera-
tion.

(5)

Article 2(7) of Regulation (EC) No 384/96, as amended
in particular by Regulation (EC) No 905/98 (4) and Regu-
lation (EC) No 2238/2000 (5) provides, inter alia, that in
case of imports from the Russian Federation, normal
value will be determined in accordance with the rules
applicable
those
in market-economy countries
producers which demonstrate that market conditions
prevail
in respect of the manufacture and sale of the
the very significant
In view of
product concerned.
progress made by the Russian Federation towards the
establishment of market economy conditions, as recog-
nised by the conclusions of the Russia-European Union
it is appropriate to allow
Summit on 29 May 2002,
normal value for Russian exporters and producers to be
established in accordance with the provisions of Article
2(1) to (6) of Regulation (EC) No 384/96.

for

(4) OJ L 128, 30.4.1998, p. 18.
(5) OJ L 257, 11.10.2000, p. 2.

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(6)

(7)

Pursuant to Article 2(10)(i) of Regulation (EC) No 384/
96, adjustments to normal value and the export price
are made when commissions are paid. It is prudent to
clarify,
the
Commission and the Council,
that such adjustments
should also be made, if the parties do not act on the
basis of a principal — agent relationship, but achieve
the same economic result by acting as buyer and seller.

in line with the consistent practice of

Regulation (EC) No 384/96 does not indicate the criteria
according to which an exporter for which a normal
value is established pursuant to Article 2(7)(a) may be
assigned an individual
rate of duty calculated by
comparing this normal value with the exporter's indivi-
dual export prices. It is appropriate in the interests of
transparency and legal certainty to lay down clear
criteria for the granting of such individual treatment.
Export prices of exporters falling under Article 2(7)(a) of
Regulation (EC) No 384/96 may therefore be taken into
account where the export activities of the company are
freely determined, where ownership and control of the
company are sufficiently independent and where State
interference is not such as to permit circumvention of
individual anti-dumping measures. Such individual treat-
ment may be granted to exporters for which it can be
demonstrated, on the basis of substantiated claims, that,
in the case of wholly or partly foreign owned firms or
joint ventures, they are free to repatriate capital and
profits; that export prices and quantities and conditions
and terms of
sale are freely determined and that
exchange rate conversions are carried out at the market
rate. It should also be demonstrated that the majority of
shares belong to private persons and that State officials
appearing on the Board of Directors or holding key
management positions are either in a minority or that
the company is sufficiently independent from State inter-
ference.

(8)

Article 18(5) of Regulation (EC) No 384/96 specifies
that, in case of use of facts available, the information
used is to be checked by reference to information from a
number of sources. It is considered useful to specify that
such sources can, where appropriate, also pertain to data
concerning the world market or other representative
markets.

(9)

is necessary to
legal certainty,
In the interests of
provide that these amendments should apply as soon as
possible to all new investigations,

it

HAS ADOPTED THIS REGULATION:

Article 1

Regulation (EC) No 384/96 is hereby amended as follows:

1.

in Article 2(1), the following sentence shall be added:

‘In order to determine whether two parties are associated
account may be taken of the definition of related parties set
out in Article 143 of Commission Regulation (EEC) 2454/

93 of 2 July 1993 laying down provisions for the imple-
mentation of Council Regulation (EEC) No 2913/92 estab-
lishing the Community Customs Code (*).

(*) OJ L 253, 11.10.1993, p. 1. Regulation as last amended
by Commission Regulation (EC) No 444/2002 (OJ L 68,
12.3.2002, p. 11).’;

2.

in Article 2(3), the following sentence shall be added:

‘A particular market situation for the product concerned
within the meaning of
the preceding sentence may be
deemed to exist, inter alia, when prices are artificially low,
when there is significant barter trade, or when there are
non-commercial processing arrangements’;

3.

in Article 2(5), the following sentence shall be inserted after
the first sentence:

‘If costs associated with the production and sale of the
product under investigation are not reasonably reflected in
the records of the party concerned, they shall be adjusted or
established on the basis of the costs of other producers or
exporters in the same country or, where such information is
not available or cannot be used, on any other reasonable
basis,
representative
markets.’;

including information from other

4.

in Article 2(7)(b)
Federation’ shall be deleted;

first sentence,

the terms ‘the Russian

5.

in Article 2(10)(i), the following sentence shall be added:

‘The term “commissions” shall be understood to include the
mark-up received by a trader of the product or the like
product if the functions of such a trader are similar to those
of an agent working on a commission basis;’

6. Article 9(5) shall be replaced by the following:

‘5.
An anti-dumping duty shall be imposed in the appro-
priate amounts in each case, on a non-discriminatory basis
from all sources found to be
on imports of a product
dumped and causing injury, except as to imports from those
sources from which undertakings under the terms of this
Regulation have been accepted. The Regulation imposing
the duty shall specify the duty for each supplier or, if that is
impracticable, and in general where Article 2(7)(a) applies,
the supplying country concerned.

Where Article 2(7)(a) applies, an individual duty shall,
however, be specified for the exporters which can demon-
strate, on the basis of properly substantiated claims that:

(a) in the case of wholly or partly foreign owned firms or
joint ventures, exporters are free to repatriate capital
and profits;

(b) export prices and quantities, and conditions and terms

of sale are freely determined;

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(c) the majority of the shares belong to private persons.
State officials appearing on the board of Directors or
holding key management positions shall either be in
minority or it must be demonstrated that the company
is nonetheless sufficiently independent from State inter-
ference;

7.

in Article 18(5), the following sentence shall be added:
‘Such information may include relevant data pertaining to
the world market or other representative markets, where
appropriate.’

Article 2

(d) exchange rate conversions are carried out at the market

rate; and

This Regulation shall enter into force on the day following that
of its publication in the Official Journal of the European Commu-
nities.

(e) State interference is not such as to permit circumvention
of measures if individual exporters are given different
rates of duty.’;

It shall apply to all investigations initiated pursuant to Regula-
tion (EC) No 384/96 after the date of entry into force of this
Regulation.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels, 5 November 2002.

For the Council

The President

T. PEDERSEN