Proposal for a Council Regulation on protection against dumped imports from countries not members of the European Community (codified version)
Date: 2009-04-16
Institutions: European Commission
Subjects: Kazakhstan, anti-dumping duty, anti-dumping legislation, common agricultural policy, dumping, import, third country

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 16.4.2009 
COM(2009) 168 final 

2009/0052 (CNS) 

Proposal for a 

COUNCIL REGULATION 

on protection against dumped imports from countries not members of the European 
Community (codified version) 

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EXPLANATORY MEMORANDUM 

In  the  context  of  a  people’s  Europe,  the  Commission  attaches  great  importance  to 
simplifying  and  clarifying  Community  law  so  as  to  make  it  clearer  and  more 
accessible to the ordinary citizen, thus giving him new opportunities and the chance 
to make use of the specific rights it gives him. 

This aim cannot be achieved so long as numerous provisions that have been amended 
several times, often quite substantially, remain scattered, so that they must be sought 
partly  in  the  original  instrument  and  partly  in  later  amending  ones.  Considerable 
research work, comparing many different instruments, is thus needed to identify the 
current rules. 

For  this  reason  a  codification  of  rules  that  have  frequently  been  amended  is  also 
essential if Community law is to be clear and transparent. 

On  1  April  1987  the  Commission  therefore  decided1  to  instruct  its  staff  that  all 
legislative acts should be codified after no more than ten amendments, stressing that 
this  is  a  minimum  requirement  and  that  departments  should  endeavour  to  codify  at 
even  shorter  intervals  the  texts  for  which  they  are  responsible,  to  ensure  that  the 
Community rules are clear and readily understandable. 

The  Conclusions  of 
the  Edinburgh  European  Council 
(December 1992) confirmed this2, stressing the importance of codification as it offers 
certainty as to the law applicable to a given matter at a given time. 

the  Presidency  of 

Codification  must  be  undertaken  in  full  compliance  with  the  normal  Community 
legislative procedure. 

Given  that  no  changes  of  substance  may  be  made  to  the  instruments  affected  by 
codification, the European Parliament, the Council and the Commission have agreed, 
by  an  interinstitutional  agreement  dated  20  December  1994,  that  an  accelerated 
procedure may be used for the fast-track adoption of codification instruments. 

is 

this  proposal 

to  undertake  a  codification  of  Council 
The  purpose  of 
Regulation (EC) No 384/96  of  22  December  1995  on  protection  against  dumped 
imports  from  countries  not  members  of  the  European  Community3.  The  new 
Regulation  will  supersede  the  various  acts  incorporated  in  it4;  this  proposal  fully 
preserves  the  content  of  the  acts  being  codified  and  hence  does  no  more  than 
bringing  them  together  with  only  such  formal  amendments  as  are  required  by  the 
codification exercise itself. 

COM(87) 868 PV. 
See Annex 3 to Part A of the Conclusions. 
Carried out pursuant to the Communication from the Commission to the European Parliament and the 
Council – Codification of the Acquis communautaire, COM(2001) 645 final. 
See Annex I to this proposal. 

1. 

2. 

3. 

4. 

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4 

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5. 

The codification proposal was drawn up on the basis of a preliminary consolidation, 
in  all  official  languages,  of  Regulation  (EC) No 384/96  and  the  instruments 
amending  it,  carried  out  by  the  Office  for  Official  Publications  of  the  European 
Communities, by means of a data-processing system. Where the Articles have been 
given new numbers, the correlation between the old and the new numbers is shown 
in a table contained in Annex II to the codified Regulation. 

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(cid:208) 384/96 

2009/0052 (CNS) 

Proposal for a 

COUNCIL REGULATION (EC) No …/… 

of […] 

on protection against dumped imports from countries not members of the European 
Community (codified version) 

THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty establishing the European Community, and in particular Article  
133 thereof, 

Having regard to Council Regulation (EC) No 1234/2007 of 22 October 2007 establishing a 
common  organisation  of  agricultural  markets  and  on  specific  provisions  for  certain 
agricultural products (Single CMO Regulation)1, 

Having regard to the proposal from the Commission, 

Having regard to the opinion of the European Parliament2, 

Having regard to the opinion of the European Economic and Social Committee3, 

Whereas: 

(1) 

Council  Regulation  (EC)  No  384/96  of  22  December  1995  on  protection  against 
dumped imports from countries not members of the European Community4, has been 
substantially amended several times5. In the interests of clarity and rationality the said 
Regulation should be codified. 

(cid:208)  

1 
2 
3 
4 
5 

OJ L 299, 16.11.2007, p. 1. 
OJ C […], […], p. […]. 
OJ C […], […], p. […]. 
OJ L 56, 6.3.1996, p. 1.  
See Annex I. 

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(2) 

(3) 

(cid:208) 384/96 Recital 3 (adapted) 

The multilateral trade negotiations concluded in 1994 led to new Agreements on the 
implementation  of  Article  VI  of  ⌦ the  General  Agreement  on  Tariffs  and  Trade 
(hereinafter referred to as ‘GATT’) ⌫ . In the light of the different nature of the new 
rules  for  dumping  and  subsidies  respectively,  it  is  also ⌦ appropriate ⌫  to  have  a 
separate body of Community rules in each of those two areas. Consequently, the rules 
on  protection  against  subsidies  and  countervailing  duties  are  contained  in  a  separate 
Regulation. 

(cid:208) 384/96 Recital 5 (adapted) 

The agreement on dumping, namely, the Agreement on Implementation of Article VI 
of  the  General  Agreement  on  Tariffs  and  Trade  1994  (hereinafter  referred  to  as  ‘the 
1994 Anti-Dumping Agreement’), contains detailed rules, relating in particular to the 
calculation  of  dumping,  procedures  for  initiating  and  pursuing  an  investigation, 
including  the  establishment  and  treatment  of  the  facts,  the  imposition  of  provisional 
measures,  the  imposition  and  collection  of  anti-dumping  duties,  the  duration  and 
review of anti-dumping measures and the public disclosure of information relating to 
anti-dumping  investigations.  In  ⌦ order ⌫  to  ensure  a  proper  and  transparent 
application  of  ⌦ those ⌫  rules,  the  language  of  the  agreement  should  be  brought 
into Community legislation as far as possible. 

(4) 

In  applying  the  rules  it  is  essential,  in  order  to  maintain  the  balance  of  rights  and 
obligations which the GATT Agreement establishes, that the Community take account 
of how they are interpreted by the Community's major trading partners. 

(cid:208) 384/96 Recital 4 

(cid:208) 384/96 Recital 6 and 1972/2002 
Recital 2 (adapted) 

(5) 

It is desirable to lay down clear and detailed rules on the calculation of normal value. 
In  particular  such  value  should  in  all  cases  be  based  on  representative  sales  in  the 
ordinary course of trade in the exporting country. ⌦ It is expedient to give guidance 
as  to  when  parties  may  be  considered  as  being  associated  for  the  purpose  of 
determining  dumping. ⌫  It  is  expedient  to  define  the  circumstances  in  which 
domestic sales may be considered to be made at a loss and may be disregarded, and in 
which recourse may be had to remaining sales, or to constructed normal value, or to 
sales to a third country. It is also ⌦ appropriate ⌫ to provide for a proper allocation 
of  costs,  even  in  start-up  situations,  ⌦ and ⌫  to  lay  down  guidance  as  to  the 
definition  of  start-up  and  the  extent  and  method  of  allocation.  It  is  also  necessary, 
when constructing normal value, to indicate the methodology that is to be applied in 
determining  the  amounts  for  selling,  general  and  administrative  costs  and  the  profit 
margin that should be included in such value. 

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(6)  When determining normal value for non-market economy countries, it appears prudent 
to set out rules for choosing the appropriate market-economy third country that is to be 
used for such purpose and, where it is not possible to find a suitable third country, to 
provide that normal value may be established on any other reasonable basis. 

(cid:208) 384/96 Recital 7 

(cid:208) 905/98 Recital 5 (adapted) and 
2238/2000 Recital 5 (adapted) 

(7) 

It is appropriate ⌦ for ⌫ the Community's anti-dumping practice to take account of 
the changed economic conditions in ⌦ Kazakhstan ⌫. In particular, it is appropriate 
to  specify  that  normal  value  may  be  determined  in  accordance  with  the  rules 
applicable  to  market  economy  countries  in  cases  where  it  can  be  shown  that  market 
conditions prevail for one or more producers subject to investigation in relation to the 
manufacture and sale of the product concerned. 

(8) 

It is also appropriate to grant similar treatment to imports from such countries which 
are members of the World Trade Organisation (WTO) at the date of the initiation of 
the relevant anti-dumping investigation. 

(cid:208) 2238/2000 Recital 6 

(cid:208) 905/98 Recital 6 

(9) 

It is appropriate to specify that an examination of whether market conditions prevail 
will  be  carried  out  on  the  basis  of  properly  substantiated  claims  by  one  or  more 
producers  subject  to  investigation  who  wish  to  avail  themselves  of  the  possibility  to 
have  normal  value  determined  on  the  basis  of  rules  applicable  to  market  economy 
countries. 

(10) 

It is expedient to define the export price and to enumerate the adjustments which are to 
be made in those cases where a reconstruction of this price from the first open-market 
price is deemed necessary. 

(cid:208) 384/96 Recital 8 

(cid:208) 384/96 Recital 9 

(11)  For the purpose of ensuring a fair comparison between export price and normal value, 
it is advisable to list the factors which may affect prices and price comparability and to 
lay down specific rules as to when and how the adjustments should be made, including 
the fact that any duplication of adjustments should be avoided. It is also necessary to 
provide that comparison may be made using average prices although individual export 

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prices  may  be  compared  to  an  average  normal  value  where  the  former  vary  by 
customer, region or time period. 

(cid:208) 384/96 Recital 10 (adapted) 

(12) 

It is ⌦ necessary ⌫ to lay down clear and detailed guidance as to the factors which 
may  be  relevant  for  the  determination  of  whether  the  dumped  imports  have  caused 
material injury or are threatening to cause injury. In demonstrating that the volume and 
price  levels  of  the  imports  concerned  are  responsible  for  injury  sustained  by  a 
Community  industry,  attention  should  be  given  to  the  effect  of  other  factors  and  in 
particular prevailing market conditions in the Community. 

(cid:208) 384/96 Recital 11 

(13) 

It  is  advisable  to  define  the  term  ‘Community  industry’  and  to  provide  that  parties 
related  to  exporters  may  be  excluded  from  such  industry  and  to  define  the  term 
‘related’. It is also necessary to provide for anti-dumping action to be taken on behalf 
of  producers  in  a  region  of  the  Community  and  to  lay  down  guidelines  on  the 
definition of such region. 

(cid:208) 384/96 Recital 12 

(14) 

It is necessary to lay down who may lodge an anti-dumping complaint, including the 
extent  to  which  it  should  be  supported  by  the  Community  industry,  and  the 
information on dumping, injury and causation which such complaint should contain. It 
is  also  expedient  to  specify  the  procedures  for  the  rejection  of  complaints  or  the 
initiation of proceedings. 

(cid:208) 384/96 Recital 13 

(15) 

It  is  necessary  to  lay  down  the  manner  in  which  interested  parties  should  be  given 
notice  of  the  information  which  the  authorities  require,  and  should  have  ample 
opportunity  to  present  all  relevant  evidence  and  to  defend  their  interests.  It  is  also 
desirable  to  set  out  clearly  the  rules  and  procedures  to  be  followed  during  the 
investigation, in particular the rules whereby interested parties are to make themselves 
known, present their views and submit information within specified time limits, if such 
views and information are to be taken into account. It is also appropriate to set out the 
conditions  under  which  an  interested  party  may  have  access  to,  and  comment  on, 
information  presented  by  other  interested  parties.  There  should  also  be  cooperation 
between the Member States and the Commission in the collection of information. 

(16) 

It  is  necessary  to  lay  down  the  conditions  under  which  provisional  duties  may  be 
imposed,  including  the  condition  that  they  may  be  imposed  no  earlier  than  60  days 

(cid:208) 384/96 Recital 14 

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(17) 

(18) 

from initiation and not later than nine months thereafter. For administrative reasons, it 
is  also  necessary  to  provide  that  such  duties  may  in  all  cases  be  imposed  by  the 
Commission, either directly for a nine-month period or in two stages of six and three 
months. 

(cid:208) 384/96 Recital 15 

It  is  necessary  to  specify  procedures  for  accepting  undertakings  which  eliminate 
dumping  and  injury  instead  of  imposing  provisional  or  definitive  duties.  It  is  also 
appropriate to lay down the consequences of breach or withdrawal of undertakings and 
that  provisional  duties  may  be  imposed  in  cases  of  suspected  violation  or  where 
the  findings.  In  accepting 
further 
undertakings,  care  should  be  taken  that  the  proposed  undertakings,  and  their 
enforcement, do not lead to anti-competitive behaviour. 

to  supplement 

is  necessary 

investigation 

(cid:208) 384/96 Recital 16 

It is necessary to provide that the termination of cases should, irrespective of whether 
definitive measures are adopted or not, normally take place within 12 months, and in 
no case later than 15 months, from the initiation of the investigation. Investigations or 
proceedings  should  be  terminated  where  the  dumping  is  de  minimis  or  the  injury  is 
negligible,  and  it  is  appropriate  to  define  those  terms.  Where  measures  are  to  be 
imposed,  it  is  necessary  to  provide  for  the  termination  of  investigations  and  to  lay 
down that measures should be less than the margin of dumping if such lesser amount 
would remove the injury, as well as to specify the method of calculating the level of 
measures in cases of sampling. 

(cid:208) 384/96 Recital 17 

(19) 

It  is  necessary  to  provide  for  retroactive  collection  of  provisional  duties  if  that  is 
deemed appropriate and to define the circumstances which may trigger the retroactive 
application of duties to avoid the undermining of the definitive measures to be applied. 
It  is  also  necessary  to  provide  that  duties  may  be  applied  retroactively  in  cases  of 
breach or withdrawal of undertakings. 

(cid:208) 384/96 Recital 18 

(20) 

It  is  necessary  to  provide  that  measures  are  to  lapse  after  five  years  unless  a  review 
indicates that they should be maintained. It is also necessary to provide, in cases where 
sufficient evidence is submitted of changed circumstances, for interim reviews or for 
investigations to determine whether refunds of anti-dumping duties are warranted. It is 
also appropriate to lay down that in any recalculation of dumping which necessitates a 
reconstruction of export prices, duties are not to be treated as a cost incurred between 
importation  and  resale  where  the  said  duty  is  being  reflected  in  the  prices  of  the 
products subject to measures in the Community. 

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(21) 

It  is  necessary  to  provide  specifically  for  the  reassessment  of  export  prices  and 
dumping margins where the duty is being absorbed by the exporter through a form of 
compensatory  arrangement  and  the  measures  are  not  being  reflected  in  the  prices  of 
the products subject to measures in the Community. 

(cid:208) 384/96 Recital 19 

(cid:208) 384/96 Recital 20 (adapted) 

(22)  The  1994  Anti-Dumping  Agreement  does  not  contain  provisions  regarding  the 
circumvention  of  anti-dumping  measures,  though  a  separate  GATT  Ministerial 
Decision recognises circumvention as a problem and has referred it to the GATT Anti-
dumping  Committee  for  resolution.  Given  the  failure  of  the  multilateral  negotiations 
so  far  and  pending  the  outcome  of  the  referral  to  the  ⌦ WTO ⌫  Anti-Dumping 
Committee,  it  is  necessary  ⌦ that ⌫  Community  legislation  ⌦ should  contain 
provisions ⌫  to  deal  with  practices,  including  mere  assembly  of  goods  in  the 
Community  or  a  third  country,  which  have  as  their  main  aim  the  circumvention  of 
anti-dumping measures. 

(cid:208) 461/2004 Recital 24 (adapted) 

(23) 

It is also desirable to clarify which practices constitute circumvention of the measures 
in  place.  Circumvention  practices  may  take  place  either  inside  or  outside  the 
Community.  It  is  consequently  necessary  to  provide  that  exemptions  from  the 
extended  duties  which  may  already  be  granted  to  importers  may  also  be  granted  to 
exporters  when  duties  are  being  extended  to  address  circumvention  taking  place 
outside the Community. 

(24) 

It  is  expedient  to  permit  suspension  of  anti-dumping  measures  where  there  is  a 
temporary change in market conditions which makes the continued imposition of such 
measures temporarily inappropriate. 

(cid:208) 384/96 Recital 21 

(25) 

It  is  necessary  to  provide  that  imports  under  investigation  may  be  made  subject  to 
registration upon importation in order to enable measures to be applied subsequently 
against such imports. 

(cid:208) 384/96 Recital 22 

(26) 

In order to ensure proper enforcement of measures, it is necessary that Member States 
monitor,  and  report  to  the  Commission,  the  import  trade  of  products  subject  to 

(cid:208) 384/96 Recital 23 

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investigation or subject to measures, and also the amount of duties collected under this 
Regulation. 

(27) 

It  is  necessary  to  provide  for  consultation  of  an  Advisory  Committee  at  regular  and 
specified stages of the investigation. The Committee should consist of representatives 
of Member States with a representative of the Commission as chairman. 

(cid:208) 384/96 Recital 24 

(cid:208) 461/2004 Recital 17 (adapted) 

(28) 

Information  provided  to  Member  States  in  the  Advisory  Committee  is  often  of  a 
highly technical nature and involves an elaborate economic and legal analysis. In order 
to provide Member States with sufficient time to consider this information, it should 
be sent at ⌦ an appropriate time ⌫ before the date of a meeting set by the Chairman 
of the Advisory Committee. 

(29) 

It  is  expedient  to  provide  for  verification  visits  to  check  information  submitted  on 
dumping  and  injury,  such  visits  being,  however,  conditional  on  proper  replies  to 
questionnaires being received. 

(cid:208) 384/96 Recital 25 

(30) 

It  is  essential  to  provide  for  sampling  in  cases  where  the  number  of  parties  or 
transactions  is  large  in  order  to  permit  completion  of  investigations  within  the 
appointed time limits. 

(cid:208) 384/96 Recital 26 

(31) 

It  is  necessary  to  provide  that  where  parties  do  not  cooperate  satisfactorily  other 
information may be used to establish findings and that such information may be less 
favourable to the parties than if they had cooperated. 

(cid:208) 384/96 Recital 27 

(32)  Provision  should  be  made  for  the  treatment  of  confidential  information  so  that 

business secrets are not divulged. 

(cid:208) 384/96 Recital 28 

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(33) 

It  is  essential  that  provision  be  made  for  proper  disclosure  of  essential  facts  and 
considerations to parties which qualify for such treatment and that such disclosure be 
made,  with  due  regard  to  the  decision-making  process  in  the  Community,  within  a 
time period which permits parties to defend their interests. 

(cid:208) 384/96 Recital 29 

(34) 

It  is  prudent  to  provide  for  an  administrative  system  under  which  arguments  can  be 
presented  as  to  whether  measures  are  in  the  Community  interest,  including  the 
consumers' interest, and to lay down the time periods within which such information 
has to be presented as well as the disclosure rights of the parties concerned, 

(cid:208) 384/96 Recital 30 

HAS ADOPTED THIS REGULATION: 

(cid:208) 384/96 

Article 1 

Principles 

1.  An  anti-dumping  duty  may  be  applied  to  any  dumped  product  whose  release  for  free 
circulation in the Community causes injury. 

2. A product is to be considered as being dumped if its export price to the Community is less 
than a comparable price for the like product, in the ordinary course of trade, as established for 
the exporting country. 

3.  The  exporting  country  shall  normally  be  the  country  of  origin.  However,  it  may  be  an 
intermediate country, except where, for example, the products are merely transhipped through 
that  country,  or  the  products  concerned  are  not  produced  in  that  country,  or  there  is  no 
comparable price for them in that country. 

4. For the purpose of this Regulation, the term ‘like product’ shall be interpreted to mean a 
product  which  is  identical,  that  is  to  say,  alike  in  all  respects,  to  the  product  under 
consideration, or in the absence of such a product, another product which although not alike 
in all respects, has characteristics closely resembling those of the product under consideration. 

Article 2 

Determination of dumping 

A. NORMAL VALUE 

1.  The  normal  value  shall  normally  be  based  on  the  prices  paid  or  payable,  in  the  ordinary 
course of trade, by independent customers in the exporting country. 

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However, where the exporter in the exporting country does not produce or does not sell the 
like  product,  the  normal  value  may  be  established  on  the  basis  of  prices  of  other  sellers  or 
producers. 

Prices between parties which appear to be associated or to have a compensatory arrangement 
with each other may not be considered to be in the ordinary course of trade and may not be 
used  to  establish  normal  value  unless  it  is  determined  that  they  are  unaffected  by  the 
relationship. 

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) 
No 2454/93 6. 

(cid:208) 1972/2002 Art. 1 pt. 1 

(cid:208) 384/96 

2.  Sales  of  the  like  product  intended  for  domestic  consumption  shall  normally  be  used  to 
determine normal value if such sales volume constitutes 5 % or more of the sales volume of 
the product under consideration to the Community. However, a lower volume of sales may be 
used  when,  for  example,  the  prices  charged  are  considered  representative  for  the  market 
concerned. 

3. When there are no or insufficient sales of the like product in the ordinary course of trade, or 
where  because  of  the  particular  market  situation  such  sales  do  not  permit  a  proper 
comparison, the normal value of the like product shall be calculated on the basis of the cost of 
production  in  the  country  of  origin  plus  a  reasonable  amount  for  selling,  general  and 
administrative 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. 

A  particular  market  situation  for  the  product  concerned  within  the  meaning  of  the  first 
subparagraph 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. 

(cid:208) 1972/2002 Art. 1 pt. 2 

4. Sales of the like product in the domestic market of the exporting country, or export sales to 
a third country, at prices below unit production costs (fixed and variable) plus selling, general 
and administrative costs may be treated as not being in the ordinary course of trade by reason 
of  price,  and  may  be  disregarded  in  determining  normal  value,  only  if  it  is  determined  that 

(cid:208) 384/96 

6 

OJ L 253, 11.10.1993, p. 1.  

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such  sales  are  made  within  an  extended  period  in  substantial  quantities,  and  are  at  prices 
which do not provide for the recovery of all costs within a reasonable period of time. 

If prices which are below costs at the time of sale are above weighted average costs for the 
period of investigation, such prices shall be considered to provide for recovery of costs within 
a reasonable period of time. 

The extended period of time shall normally be one year but shall in no case be less than six 
months,  and  sales  below  unit  cost  shall  be  considered  to  be  made  in  substantial  quantities 
within such a period when it is established that the weighted average selling price is below the 
weighted average unit cost, or that the volume of sales below unit cost is not less than 20 % of 
sales being used to determine normal value. 

5.  Costs  shall  normally  be  calculated  on  the  basis  of  records  kept  by  the  party  under 
investigation,  provided  that  such  records  are  in  accordance  with  the  generally  accepted 
accounting  principles  of  the  country  concerned  and  that  it  is  shown  that  the  records 
reasonably  reflect  the  costs  associated  with  the  production  and  sale  of  the  product  under 
consideration. 

(cid:208) 1972/2002 Art. 1 pt. 3 

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, 
including information from other representative markets. 

(cid:208) 384/96 

Consideration shall be given to evidence submitted on the proper allocation of costs, provided 
that it is shown that such allocations have been historically utilised. In the absence of a more 
appropriate  method,  preference  shall  be  given  to  the  allocation  of  costs  on  the  basis  of 
turnover. Unless already reflected in the cost allocations under this subparagraph, costs shall 
be  adjusted  appropriately  for  those  non-recurring  items  of  cost  which  benefit  future  and/or 
current production. 

Where  the  costs  for  part  of  the  period  for  cost  recovery  are  affected  by  the  use  of  new 
production  facilities  requiring  substantial  additional  investment  and  by  low  capacity 
utilisation rates, which are the result of start-up operations which take place within or during 
part  of  the  investigation  period,  the  average  costs  for  the  start-up  phase  shall  be  those 
applicable, under the abovementioned allocation rules, at the end of such a phase, and shall be 
included at that level, for the period concerned, in the weighted average costs referred to in 
the second sub-paragraph of paragraph 4. The length of a start-up phase shall be determined 
in relation to the circumstances of the producer or exporter concerned, but shall not exceed an 
appropriate  initial  portion  of  the  period  for  cost  recovery.  For  this  adjustment  to  costs 
applicable  during  the  investigation  period,  information  relating  to  a  start-up  phase  which 
extends  beyond  that  period  shall  be  taken  into  account  where  it  is  submitted  prior  to 
verification visits and within three months of the initiation of the investigation. 

EN 

13 

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6. The amounts for selling, for general and administrative costs and for profits shall be based 
on actual data pertaining to production and sales, in the ordinary course of trade, of the like 
product,  by  the  exporter  or  producer  under  investigation.  When  such  amounts  cannot  be 
determined on this basis, the amounts may be determined on the basis of: 

(a) 

(b) 

(c) 

the  weighted  average  of  the  actual  amounts  determined  for  other  exporters  or 
producers  subject  to  investigation  in  respect  of  production  and  sales  of  the  like 
product in the domestic market of the country of origin; 

the actual amounts applicable to production and sales, in the ordinary course of trade, 
of the same general category of products for the exporter or producer in question in 
the domestic market of the country of origin; 

any other reasonable method, provided that the amount for profit so established shall 
not  exceed  the  profit  normally  realised  by  other  exporters  or  producers  on  sales  of 
products  of  the  same  general  category  in  the  domestic  market  of  the  country  of 
origin. 

(cid:208) 905/98 Art. 1 (adapted) 
(cid:206)1 2238/2000 Art. 1 

7. (a) 

In  the  case  of  imports  from  non-market  economy  countries(cid:206)1 7 ,  normal  value 
shall  be  determined  on  the  basis  of  the  price  or  constructed  value  in  a  market 
economy  third  country,  or  the  price  from  such  a  third  country  to  other  countries, 
including the Community, or where those are not possible, on any other reasonable 
basis,  including  the  price  actually  paid  or  payable  in  the  Community  for  the  like 
product, duly adjusted if necessary to include a reasonable profit margin. 

An appropriate market economy third country shall be selected in a not unreasonable 
manner,  due  account  being  taken  of  any  reliable  information  made  available  at  the 
time  of  selection.  Account  shall  also  be  taken  of  time  limits;  where  appropriate,  a 
market  economy  third  country  which  is  subject  to  the  same  investigation  shall  be 
used. 

The  parties  to  the  investigation  shall  be  informed  shortly  after  its  initiation  of  the 
market economy third country envisaged and shall be given 10 days to comment. 

(cid:208) 2238/2000 Art. 1 (adapted) 

(b) 

In  anti-dumping  investigations  concerning  imports  from  Kazakhstan  and  any  non-
market-economy country which is a member of the WTO at the date of the initiation 
of  the  investigation,  normal  value  ⌦ shall ⌫  be  determined  in  accordance  with 
paragraphs 1 to 6, if it is shown, on the basis of properly substantiated claims by one 
or more producers subject to the investigation and in accordance with the criteria and 
procedures  set  out  in  subparagraph  (c)  that  market  economy  conditions  prevail  for 
this producer or producers in respect of the manufacture and sale of the like product 

7 

Including Azerbaijan, Belarus, , North Korea, , Tajikistan, Turkmenistan, Uzbekistan. 

EN 

14 

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concerned. When this is not the case, the rules set out under subparagraph (a) shall 
apply. 

(c) 

A  claim  under  subparagraph  (b)  must  be  made  in  writing  and  contain  sufficient 
evidence that the producer operates under market economy conditions, that is if: 

(cid:208) 905/98 Art.1 

– 

– 

– 

– 

– 

decisions of firms regarding prices, costs and inputs, including for instance raw 
materials,  cost  of  technology  and  labour,  output,  sales  and  investment,  are 
made in response to market signals reflecting supply and demand, and without 
significant  State  interference  in  this  regard,  and  costs  of  major  inputs 
substantially reflect market values, 

firms  have  one  clear set of basic accounting records which are independently 
audited  in  line  with  international  accounting  standards  and  are  applied  for  all 
purposes, 

the  production  costs  and  financial  situation  of  firms  are  not  subject  to 
significant  distortions  carried  over  from  the  former  non-market  economy 
system,  in  particular  in  relation  to  depreciation  of  assets,  other  write-offs, 
barter trade and payment via compensation of debts, 

the  firms  concerned  are  subject  to  bankruptcy  and  property  laws  which 
guarantee legal certainty and stability for the operation of firms, and 

exchange rate conversions are carried out at the market rate. 

A  determination  whether  the  producer  meets  the  abovementioned  criteria  shall  be 
made  within  three  months  of  the  initiation  of  the  investigation,  after  specific 
consultation of the Advisory Committee and after the Community industry has been 
given  an  opportunity  to  comment.  This  determination  shall  remain  in  force 
throughout the investigation. 

(cid:208) 384/96 

B. EXPORT PRICE 

8. The export price shall be the price actually paid or payable for the product when sold for 
export from the exporting country to the Community. 

9. In cases where there is no export price or where it appears that the export price is unreliable 
because  of  an  association  or  a  compensatory  arrangement  between  the  exporter  and  the 
importer  or  a  third  party,  the  export  price  may  be  constructed  on  the  basis  of  the  price  at 
which the imported products are first resold to an independent buyer, or, if the products are 
not  resold  to  an  independent  buyer,  or  are  not  resold  in  the  condition  in  which  they  were 
imported, on any reasonable basis. 

EN 

15 

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In  these  cases,  adjustment  for  all  costs,  including  duties  and  taxes,  incurred  between 
importation  and  resale,  and  for  profits  accruing,  shall  be  made  so  as  to  establish  a  reliable 
export price, at the Community frontier level. 

The  items  for  which  adjustment  shall  be  made  shall  include  those  normally  borne  by  an 
importer but paid by any party, either inside or outside the Community, which appears to be 
associated  or  to  have  a  compensatory  arrangement  with  the  importer  or  exporter,  including 
usual  transport,  insurance,  handling,  loading  and  ancillary  costs;  customs  duties,  any  anti-
dumping duties, and other taxes payable in the importing country by reason of the importation 
or sale of the goods; and a reasonable margin for selling, general and administrative costs and 
profit. 

C. COMPARISON 

10.  A  fair  comparison  shall  be  made  between  the  export  price  and  the  normal  value.  This 
comparison shall be made at the same level of trade and in respect of sales made at as nearly 
as possible the same time and with due account taken of other differences which affect price 
comparability. Where the normal value and the export price as established are not on such a 
comparable basis due allowance, in the form of adjustments, shall be made in each case, on its 
merits,  for  differences  in  factors  which  are  claimed,  and  demonstrated,  to  affect  prices  and 
price comparability. Any duplication when making adjustments shall be avoided, in particular 
in relation to discounts, rebates, quantities and level of trade. When the specified conditions 
are met, the factors for which adjustment can be made are listed as follows: 

(a) 

Physical characteristics 

An  adjustment  shall  be  made  for  differences  in  the  physical  characteristics  of  the 
product  concerned.  The  amount  of  the  adjustment  shall  correspond  to  a  reasonable 
estimate of the market value of the difference. 

(b) 

Import charges and indirect taxes 

An  adjustment  shall  be  made  to  normal  value  for  an  amount  corresponding  to  any 
import charges or indirect taxes borne by the like product and by materials physically 
incorporated  therein,  when  intended  for  consumption  in  the  exporting  country  and 
not collected or refunded in respect of the product exported to the Community. 

(c) 

Discounts, rebates and quantities 

An adjustment shall be made for differences in discounts and rebates, including those 
given  for  differences  in  quantities,  if  these  are  properly  quantified  and  are  directly 
linked to the sales under consideration. An adjustment may also be made for deferred 
discounts  and  rebates  if  the  claim  is  based  on  consistent  practice  in  prior  periods, 
including  compliance  with  the  conditions  required  to  qualify  for  the  discount  or 
rebates. 

(d) 

Level of trade 

(cid:208) 2331/96 Art. 1 pt. 1 

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(i)  An  adjustment  for  differences  in  levels  of  trade,  including  any  differences 
which  may  arise  in  OEM  (Original  Equipment  Manufacturer)  sales,  shall  be 
made  where,  in  relation  to  the  distribution  chain  in  both  markets,  it  is  shown 
that the export price, including a constructed export price, is at a different level 
of  trade  from  the  normal  value  and  the  difference  has  affected  price 
comparability  which  is  demonstrated  by  consistent  and  distinct  differences  in 
functions and prices of the seller for the different levels of trade in the domestic 
market of the exporting country. The amount of the adjustment shall be based 
on the market value of the difference. 

(ii)  However,  in  circumstances  not  envisaged  under  (i),  when  an  existing 
difference in level of trade cannot be quantified because of the absence of the 
relevant  levels  on  the  domestic  market  of  the  exporting  countries,  or  where 
certain functions are shown clearly to relate to levels of trade other than the one 
which is to be used in the comparison, a special adjustment may be granted. 

(e) 

Transport, insurance, handling, loading and ancillary costs 

(cid:208) 384/96 

An adjustment shall be made for differences in the directly related costs incurred for 
conveying  the  product  concerned  from  the  premises  of  the  exporter  to  an 
independent buyer, where such costs are included in the prices charged. Those costs 
shall include transport, insurance, handling, loading and ancillary costs. 

(f) 

Packing 

An adjustment shall be made for differences in the directly related packing costs for 
the product concerned. 

(g) 

Credit 

An adjustment shall be made for differences in the cost of any credit granted for the 
sales  under  consideration,  provided  that  it  is  a  factor  taken  into  account  in  the 
determination of the prices charged. 

(h) 

After-sales costs 

An  adjustment  shall  be  made  for  differences  in  the  direct  costs  of  providing 
warranties,  guarantees,  technical  assistance  and  services,  as  provided  for  by  law 
and/or in the sales contract. 

(i) 

Commissions 

An  adjustment  shall  be  made  for  differences  in  commissions  paid  in  respect  of  the 
sales under consideration. 

EN 

17 

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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. 

(cid:208) 1972/2002 Art. 1 pt. 5 

(j) 

Currency conversions 

(cid:208) 384/96 

When  the  price  comparison  requires  a  conversion  of  currencies,  such  conversion 
shall be made using the rate of exchange on the date of sale, except that when a sale 
of foreign currency on forward markets is directly linked to the export sale involved, 
the rate of exchange in the forward sale shall be used. Normally, the date of sale shall 
be the date of invoice but the date of contract, purchase order or order confirmation 
may  be  used  if  these  more  appropriately  establish  the  material  terms  of  sale. 
Fluctuations  in  exchange  rates  shall  be  ignored  and  exporters  shall  be  granted 
60 days  to  reflect  a  sustained  movement  in  exchange  rates  during  the  investigation 
period. 

(k) 

Other factors 

(cid:208) 2331/96 Art. 1 pt. 2 

An  adjustment  may  also  be  made  for  differences  in  other  factors  not  provided  for 
under  subparagraphs  (a)  to  (j)  if  it  is  demonstrated  that  they  affect  price 
comparability  as  required  under  this  paragraph,  in  particular  that  customers 
consistently pay different prices on the domestic market because of the difference in 
such factors. 

(cid:208) 384/96 

D. DUMPING MARGIN 

11. Subject to the relevant provisions governing fair comparison, the existence of margins of 
dumping  during  the  investigation  period  shall  normally  be  established  on  the  basis  of  a 
comparison  of  a  weighted  average  normal  value  with  a  weighted  average  of  prices  of  all 
export  transactions  to  the  Community,  or  by  a  comparison  of  individual  normal  values  and 
individual export prices to the Community on a transaction-to-transaction basis. However, a 
normal  value  established  on  a  weighted  average  basis  may  be  compared  to  prices  of  all 
individual export transactions to the Community, if there is a pattern of export prices which 
differs significantly among different purchasers, regions or time periods, and if the methods 
specified in the first sentence of this paragraph would not reflect the full degree of dumping 
being  practised.  This  paragraph  shall  not  preclude  the  use  of  sampling  in  accordance  with 
Article 17. 

EN 

18 

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12. The dumping margin shall be the amount by which the normal value exceeds the export 
price. Where dumping margins vary, a weighted average dumping margin may be established. 

Article 3  

Determination of injury 

1. Pursuant to this Regulation, the term ‘injury’ shall, unless otherwise specified, be taken to 
mean material injury to the Community industry, threat of material injury to the Community 
industry  or  material  retardation  of  the  establishment  of  such  an  industry  and  shall  be 
interpreted in accordance with the provisions of this Article. 

2. A determination of injury shall be based on positive evidence and shall involve an objective 
examination of both: 

(a) 

the volume of the dumped imports and the effect of the dumped imports on prices in 
the Community market for like products; and 

(b) 

the consequent impact of those imports on the Community industry. 

3. With regard to the volume of the dumped imports, consideration shall be given to whether 
there has been a significant increase in dumped imports, either in absolute terms or relative to 
production  or  consumption  in  the  Community.  With  regard  to  the  effect  of  the  dumped 
imports  on  prices,  consideration  shall  be  given  to  whether  there  has  been  significant  price 
undercutting  by  the  dumped  imports  as  compared  with  the  price  of  a  like  product  of  the 
Community industry, or whether the effect of such imports is otherwise to depress prices to a 
significant  degree  or  prevent  price  increases,  which  would  otherwise  have  occurred,  to  a 
significant degree. No one or more of these factors can necessarily give decisive guidance. 

4. Where imports of a product from more than one country are simultaneously subject to anti-
dumping investigations, the effects of such imports shall be cumulatively assessed only if it is 
determined that: 

(a) 

(b) 

the  margin  of  dumping  established  in  relation  to  the  imports  from  each  country  is 
more than de minimis as defined in Article 9(3) and that the volume of imports from 
each country is not negligible; and 

a  cumulative  assessment  of  the  effects  of  the  imports  is  appropriate  in  light  of  the 
conditions  of  competition  between  imported  products  and  the  conditions  of 
competition between the imported products and the like Community product. 

5.  The  examination  of  the  impact  of  the  dumped  imports  on  the  Community  industry 
concerned  shall  include  an  evaluation  of  all relevant  economic  factors  and  indices  having  a 
bearing on the state of the industry, including the fact that an industry is still in the process of 
recovering  from  the  effects  of  past  dumping  or  subsidisation,  the  magnitude  of  the  actual 
margin  of  dumping,  actual  and  potential  decline  in  sales,  profits,  output,  market  share, 
productivity,  return  on  investments,  utilisation  of  capacity;  factors  affecting  Community 
prices;  actual  and  potential  negative  effects  on  cash  flow,  inventories,  employment,  wages, 
growth, ability to raise capital or investments. This list is not exhaustive, nor can any one or 
more of these factors necessarily give decisive guidance. 

EN 

19 

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6. It must be demonstrated, from all the relevant evidence presented in relation to paragraph 2, 
that  the  dumped  imports  are  causing  injury  within  the  meaning  of  this  Regulation. 
Specifically,  this  shall  entail  a  demonstration  that  the  volume  and/or  price  levels  identified 
pursuant to paragraph 3 are responsible for an impact on the Community industry as provided 
for in paragraph 5, and that this impact exists to a degree which enables it to be classified as 
material. 

7.  Known  factors  other  than  the  dumped  imports  which  at  the  same  time  are  injuring  the 
Community industry shall also be examined to ensure that injury caused by these other factors 
is not attributed to the dumped imports under paragraph 6. Factors which may be considered 
in  this  respect  include  the  volume  and  prices  of  imports  not  sold  at  dumping  prices, 
contraction  in  demand  or  changes  in  the  patterns  of  consumption,  restrictive  trade  practices 
of,  and  competition  between,  third  country  and  Community  producers,  developments  in 
technology and the export performance and productivity of the Community industry. 

8.  The  effect  of  the  dumped  imports  shall  be  assessed  in  relation  to  the  production  of  the 
Community industry of the like product when available data permit the separate identification 
of that production on the basis of such criteria as the production process, producers' sales and 
profits.  If  such  separate  identification  of  that  production  is  not  possible,  the  effects  of  the 
dumped imports shall be assessed by examination of the production of the narrowest group or 
range of products, which includes the like product, for which the necessary information can 
be provided. 

9.  A  determination  of  a  threat  of  material  injury  shall  be  based  on  facts  and  not  merely  on 
allegation, conjecture or remote possibility. The change in circumstances which would create 
a situation in which the dumping would cause injury must be clearly foreseen and imminent. 

In making a determination regarding the existence of a threat of material injury, consideration 
should be given to such factors as: 

(a) 

(b) 

(c) 

a  significant  rate  of  increase  of  dumped  imports  into  the  Community  market 
indicating the likelihood of substantially increased imports; 

sufficient freely disposable  capacity of the exporter or  an imminent  and  substantial 
increase in such capacity indicating the likelihood of substantially increased dumped 
exports  to  the  Community,  account  being  taken  of  the  availability  of  other  export 
markets to absorb any additional exports; 

whether  imports  are  entering  at  prices  that  would,  to  a  significant  degree,  depress 
prices  or  prevent  price  increases  which  otherwise  would  have  occurred,  and  would 
probably increase demand for further imports; and 

(d) 

inventories of the product being investigated. 

No  one  of  the  factors  listed  above  by  itself  can  necessarily  give  decisive  guidance  but  the 
totality of the factors considered must lead to the conclusion that further dumped exports are 
imminent and that, unless protective action is taken, material injury will occur. 

Article 4 

Definition of Community industry 

EN 

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1. For the purposes of this Regulation, the term ‘Community industry’ shall be interpreted as 
referring  to  the  Community  producers  as  a  whole  of  the  like  products  or  to  those  of  them 
whose  collective  output  of  the  products  constitutes  a  major  proportion,  as  defined  in 
Article 5(4), of the total Community production of those products, except that: 

(a) 

(b) 

when producers are related to the exporters or importers or are themselves importers 
of the allegedly dumped product, the term ‘Community industry’ may be interpreted 
as referring to the rest of the producers; 

in exceptional circumstances the territory of the Community may, for the production 
in  question,  be  divided  into  two  or  more  competitive  markets  and  the  producers 
within each market may be regarded as a separate industry if:  

(i) 

(ii) 

the producers within such a market sell all or almost all of their production of 
the product in question in that market; and 

the  demand  in  that  market  is  not  to  any  substantial  degree  supplied  by 
producers  of  the  product  in  question  located  elsewhere  in  the  Community.  In 
such circumstances, injury may be found to exist even where a major portion of 
the  total  Community  industry  the  demand  is  not  injured,  provided  there  is  a 
concentration  of  dumped  imports  into  such  an  isolated  market  and  provided 
further  that  the  dumped  imports  are  causing  injury  to  the  producers  of  all  or 
almost all of the production within such a market. 

2. For the purpose of paragraph 1, producers shall be considered to be related to exporters or 
importers only if:  

(a) 

(b) 

(c) 

one of them directly or indirectly controls the other; or  

both of them are directly or indirectly controlled by a third person; or  

together  they  directly  or  indirectly  control  a  third  person  provided  that  there  are 
grounds  for  believing  or  suspecting  that  the  effect  of  the  relationship  is  such  as  to 
cause the producer concerned to behave differently from non-related producers. 

For the purpose of this paragraph, one shall be deemed to control another when the former is 
legally or operationally in a position to exercise restraint or direction over the latter. 

3.  Where  the  Community  industry  has  been  interpreted  as  referring  to  the  producers  in  a 
certain region, the exporters shall be given an opportunity to offer undertakings pursuant to 
Article 8 in respect of the region concerned. In such cases, when evaluating the Community 
interest  of  the  measures,  special  account  shall  be  taken  of  the  interest  of  the  region.  If  an 
adequate undertaking is not offered promptly or the situations set out in Article 8(9) and (10) 
apply,  a  provisional  or  definitive  duty  may  be  imposed  in  respect  of  the  Community  as  a 
whole.  In  such  cases,  the  duties  may,  if  practicable,  be  limited  to  specific  producers  or 
exporters. 

4. The provisions of Article 3(8) shall be applicable to this Article. 

EN 

21 

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Article 5 

Initiation of proceedings 

1. Except as provided for in paragraph 6, an investigation to determine the existence, degree 
and effect of any alleged dumping shall be initiated upon a written complaint by any natural 
or  legal  person,  or  any  association  not  having  legal  personality,  acting  on  behalf  of  the 
Community industry. 

The  complaint  may  be  submitted  to  the  Commission,  or  to  a  Member  State,  which  shall 
forward  it  to  the  Commission.  The  Commission  shall  send  Member  States  a  copy  of  any 
complaint it receives. The complaint shall be deemed to have been lodged on the first working 
day  following  its  delivery  to  the  Commission  by  registered  mail  or  the  issuing  of  an 
acknowledgement of receipt by the Commission. 

Where,  in  the  absence  of  any  complaint,  a  Member  State  is  in  possession  of  sufficient 
evidence of dumping and of resultant injury to the Community industry, it shall immediately 
communicate such evidence to the Commission. 

2. A complaint under paragraph 1 shall include evidence of dumping, injury and a causal link 
between  the  allegedly  dumped  imports  and  the  alleged  injury.  The  complaint  shall  contain 
such information as is reasonably available to the complainant on the following: 

(a) 

(b) 

(c) 

(d) 

identity  of  the  complainant  and  a  description  of  the  volume  and  value  of  the 
Community  production  of  the  like  product  by  the  complainant.  Where  a  written 
complaint is made on behalf of the Community industry, the complaint shall identify 
the  industry  on  behalf  of  which  the  complaint  is  made  by  a  list  of  all  known 
Community producers of the like product (or associations of Community producers 
of the like product) and, to the extent possible, a description of the volume and value 
of Community production of the like product accounted for by such producers; 

a complete description of the allegedly dumped product, the names of the country or 
countries  of  origin  or  export  in  question,  the  identity  of  each  known  exporter  or 
foreign producer and a list of known persons importing the product in question; 

information  on  prices  at  which  the  product  in  question  is  sold  when  destined  for 
consumption in the domestic markets of the country or countries of origin or export 
(or, where appropriate, information on the prices at  which the  product  is sold from 
the country or countries of origin or export to a third country or countries or on the 
constructed  value  of  the  product)  and  information  on  export  prices  or,  where 
appropriate, on the prices at which the product is first resold to an independent buyer 
in the Community; 

information on changes in the volume of the allegedly dumped imports, the effect of 
those  imports  on  prices  of  the  like  product  on  the  Community  market  and  the 
consequent  impact  of  the  imports  on  the  Community  industry,  as  demonstrated  by 
relevant factors and indices having a bearing on the state of the Community industry, 
such as those listed in Article 3(3) and (5). 

EN 

22 

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3.  The  Commission  shall,  as  far  as  possible,  examine  the  accuracy  and  adequacy  of  the 
evidence provided in the complaint to determine whether there is sufficient evidence to justify 
the initiation of an investigation. 

4.  An  investigation  shall  not  be  initiated  pursuant  to  paragraph  1  unless  it  has  been 
determined, on the basis of an examination as to the degree of support for, or opposition to, 
the complaint expressed by Community producers of the like product, that the complaint has 
been made by or on behalf of the Community industry. The complaint shall be considered to 
have  been  made  by  or  on  behalf  of  the  Community  industry  if  it  is  supported  by  those 
Community  producers  whose  collective  output  constitutes  more  than  50 %  of  the  total 
production of the like product produced by that portion of the Community industry expressing 
either support for or opposition to the complaint. However, no investigation shall be initiated 
when Community producers expressly supporting the complaint account for less than 25 % of 
total production of the like product produced by the Community industry. 

5. The authorities shall avoid, unless a decision has been made to initiate an investigation, any 
publicising of the complaint seeking the initiation of an investigation. However, after receipt 
of  a  properly  documented  complaint  and  before  proceeding  to  initiate  an  investigation,  the 
government of the exporting country concerned shall be notified. 

6. If in special circumstances, it is decided to initiate an investigation without having received 
a  written  complaint  by  or  on  behalf  of  the  Community  industry  for  the  initiation  of  such 
investigation, this shall be done on the basis of sufficient evidence of dumping, injury and a 
causal link, as described in paragraph 2, to justify such initiation. 

7.  The  evidence  of  both  dumping  and  injury  shall  be  considered  simultaneously  in  the 
decision  on  whether  or  not  to  initiate  an  investigation.  A  complaint  shall  be  rejected  where 
there  is  insufficient  evidence  of  either  dumping  or  of  injury  to  justify  proceeding  with  the 
case.  Proceedings  shall  not  be  initiated  against  countries  whose  imports  represent  a  market 
share of below 1 %, unless such countries collectively account for 3 % or more of Community 
consumption. 

8. The complaint may be withdrawn prior to initiation, in which case it shall be considered not 
to have been lodged. 

9. Where, after consultation, it is apparent that there is sufficient evidence to justify initiating 
a proceeding, the Commission shall do so within 45 days of the lodging of the complaint and 
shall  publish  a  notice  in  the  Official  Journal  of  the  European  Union.  Where  insufficient 
evidence has been presented, the complainant shall, after consultation, be so informed within 
45 days of the date on which the complaint is lodged with the Commission. 

10.  The  notice  of  initiation  of  the  proceedings  shall  announce  the  initiation  of  an 
investigation,  indicate  the  product  and  countries  concerned,  give  a  summary  of  the 
information received, and provide that all relevant information is to be communicated to the 
Commission; it shall state the periods within which interested parties may make themselves 
known, present their views in writing and submit information if such views and information 
are to be taken into account during the investigation; it shall also state the period within which 
interested parties may apply to be heard by the Commission in accordance with Article 6(5). 

11. The Commission shall advise the exporters, importers and representative associations of 
importers or exporters known to it to be concerned, as well as representatives of the exporting 

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country and the complainants, of the initiation of the proceedings and, with due regard to the 
protection of confidential information, provide the full text of the written complaint received 
pursuant to paragraph 1 to the known exporters and to the authorities of the exporting country, 
and make it available upon request to other interested parties involved. Where the number of 
exporters involved is particularly high, the full text of the written complaint may instead be 
provided only to the authorities of the exporting country or to the relevant trade association. 

12. An anti-dumping investigation shall not hinder the procedures of customs clearance. 

Article 6 

The investigation 

1. Following the initiation of the proceeding, the Commission, acting in cooperation with the 
Member  States,  shall  commence  an  investigation  at  Community  level.  Such  investigation 
shall cover both dumping and injury and these shall be investigated simultaneously. For the 
purpose  of  a  representative  finding,  an  investigation  period  shall  be  selected  which,  in  the 
case of dumping shall, normally, cover a period of not less than six months immediately prior 
to  the  initiation  of  the  proceeding.  Information  relating  to  a  period  subsequent  to  the 
investigation period shall, normally, not be taken into account. 

2.  Parties  receiving  questionnaires  used  in  an  anti-dumping  investigation  shall  be  given  at 
least 30 days to reply. The time limit for exporters shall be counted from the date of receipt of 
the  questionnaire,  which  for  this  purpose  shall  be  deemed  to  have  been  received  one  week 
from the day on which it was sent to the exporter or transmitted to the appropriate diplomatic 
representative  of  the  exporting  country.  An  extension  to  the  30  day  period  may  be  granted, 
due account being taken of the time limits of the investigation, provided that the party shows 
due cause for such extension, in terms of its particular circumstances. 

3.  The  Commission  may  request  Member  States  to  supply  information,  and  Member  States 
shall  take  whatever  steps  are  necessary  in  order  to  give  effect  to  such  requests.  They  shall 
send  to  the  Commission  the  information  requested  together  within  the  results  of  all 
inspections, checks or investigations carried out. Where this information is of general interest 
or  where  its  transmission  has  been  requested  by  a  Member  State,  the  Commission  shall 
forward  it  to  the  Member  States,  provided  it  is  not  confidential,  in  which  case  a  non-
confidential summary shall be forwarded. 

4.  The  Commission  may  request  Member  States  to  carry  out  all  necessary  checks  and 
inspections,  particularly  amongst  importers,  traders  and  Community  producers,  and  to  carry 
out investigations in third countries, provided that the firms concerned give their consent and 
that  the  government  of  the  country  in  question  has  been  officially  notified  and  raises  no 
objection.  Member  States  shall  take  whatever  steps  are  necessary  in  order  to  give  effect  to 
such requests from the Commission. Officials of  the Commission shall be authorised, if the 
Commission  or  a  Member  State  so  requests,  to  assist  the  officials  of  Member  States  in 
carrying out their duties. 

5. The interested parties which have made themselves known in accordance with Article 5(10) 
shall be heard if they have, within the period prescribed in the notice published in the Official 
Journal of the European Union, made a written request for a hearing showing that they are an 

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interested  party  likely  to  be  affected  by  the  result  of  the  proceeding  and  that  there  are 
particular reasons why they should be heard. 

6. Opportunities shall, on request, be provided for the importers, exporters, representatives of 
the government of the exporting country and the complainants, which have made themselves 
known in accordance with Article 5(10), to meet those parties with adverse interests, so that 
opposing  views  may  be  presented  and  rebuttal  arguments  offered.  Provision  of  such 
opportunities must take account of the need to preserve confidentiality and of the convenience 
to the parties. There shall be no obligation on any party to attend a meeting, and failure to do 
so shall not be prejudicial to that party's case. Oral information provided under this paragraph 
shall be taken into account in so far as it is subsequently confirmed in writing. 

themselves  known 

7. The complainants, importers and exporters and their representative associations, users and 
consumer  organisations,  which  have  made 
in  accordance  with 
Article 5(10),  as  well  as  the  representatives  of  the  exporting  country  may,  upon  written 
request,  inspect  all  information  made  available  by  any  party  to  an  investigation,  as  distinct 
from internal documents prepared by the authorities of the Community or its Member States, 
which is relevant to the presentation of their cases and not confidential within the meaning of 
Article  19,  and  that  it  is  used  in  the  investigation.  Such  parties  may  respond  to  such 
information  and  their  comments  shall  be  taken  into  consideration,  wherever  they  are 
sufficiently substantiated in the response. 

8. Except in the circumstances provided for in Article 18, the information which is supplied 
by interested parties and upon which findings are based shall be examined for accuracy as far 
as possible. 

9.  For  proceedings  initiated  pursuant  to  Article  5(9),  an  investigation  shall,  whenever 
possible, be concluded within one year. In any event, such investigations shall in all cases be 
concluded within 15 months of initiation, in  accordance with the findings made pursuant to 
Article 8 for undertakings or the findings made pursuant to Article 9 for definitive action. 

Article 7 

Provisional measures 

1. Provisional duties may be imposed if proceedings have been initiated in accordance with 
Article  5,  if  a  notice  has  been  given  to  that  effect  and  interested  parties  have  been  given 
adequate  opportunities  to  submit  information  and  make  comments  in  accordance  with 
Article 5(10),  if  a  provisional  affirmative  determination  has  been  made  of  dumping  and 
consequent  injury  to  the  Community  industry,  and  if  the  Community  interest  calls  for 
intervention  to  prevent  such  injury.  The  provisional  duties  shall  be  imposed  no  earlier  than 
60 days  from  the  initiation  of  the  proceedings  but  not  later  than  nine  months  from  the 
initiation of the proceedings. 

2. The amount of the provisional anti-dumping duty shall not exceed the margin of dumping 
as provisionally established, but it should be less than the margin if such lesser duty would be 
adequate to remove the injury to the Community industry. 

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3.  Provisional  duties  shall  be  secured  by  a  guarantee,  and  the  release  of  the  products 
concerned  for  free  circulation  in  the  Community  shall  be  conditional  upon  the  provision  of 
such guarantee. 

4.  The  Commission  shall  take  provisional  action  after  consultation  or,  in  cases  of  extreme 
urgency, after informing the Member States. In this latter case, consultations shall take place 
10  days,  at  the  latest,  after  notification  to  the  Member  States  of  the  action  taken  by  the 
Commission. 

5. Where a Member State requests immediate intervention by the Commission and where the 
conditions in paragraph 1 are met, the Commission shall within a maximum of five working 
days  of  receipt  of  the  request,  decide  whether  a  provisional  anti-dumping  duty  shall  be 
imposed. 

6. The Commission shall forthwith inform the Council and the Member States of any decision 
taken  under  paragraphs  1  to  5.  The  Council,  acting  by  a  qualified  majority,  may  decide 
differently. 

7. Provisional duties may be imposed for six months and extended for a further three months 
or they may be imposed for nine months. However, they may only be extended, or imposed 
for  a  nine-month  period,  where  exporters  representing  a  significant  percentage  of  the  trade 
involved so request or do not object upon notification by the Commission. 

Article 8  

Undertakings 

(cid:208) 461/2004 Art. 1 pt. 1 

1.  Upon  condition  that  a  provisional  affirmative  determination  of  dumping  and  injury  has 
been made, the Commission may accept satisfactory voluntary undertaking offers submitted 
by  any  exporter  to  revise  its  prices  or  to  cease  exports  at  dumped  prices,  if,  after  specific 
consultation of the Advisory Committee, it is satisfied that the injurious effect of the dumping 
is thereby eliminated. In such a case and as long as such undertakings are in force, provisional 
duties  imposed  by  the  Commission  in  accordance  with  Article  7(1)  or  definitive  duties 
imposed by the Council in accordance with Article 9(4) as the case may be shall not apply to 
the relevant imports of the product concerned manufactured by the companies referred to in 
the  Commission  decision  accepting  undertakings,  as  subsequently  amended.  Price  increases 
under  such  undertakings  shall  not  be  higher  than  necessary  to  eliminate  the  margin  of 
dumping  and  they  should  be  less  than  the  margin  of  dumping  if  such  increases  would  be 
adequate to remove the injury to the Community industry. 

2.  Undertakings  may  be  suggested  by  the  Commission,  but  no  exporter  shall  be  obliged  to 
enter into such an undertaking. The fact that exporters do not offer such undertakings, or do 
not  accept  an  invitation  to  do  so,  shall  in  no  way  prejudice  consideration  of  the  case. 
However,  it  may  be  determined  that  a  threat  of  injury  is  more  likely  to  be  realised  if  the 

(cid:208) 384/96 

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dumped imports continue. Undertakings shall not be sought or accepted from exporters unless 
a provisional  affirmative  determination of dumping and injury caused  by such dumping  has 
been made. Save in exceptional circumstances, undertakings may not be offered later than the 
end of the period during which representations may be made pursuant to Article 20(5). 

3. Undertakings offered need not be accepted if their acceptance is considered impractical, if 
such as where the  number of actual  or potential exporters is too great, or for other reasons, 
including reasons of general policy. The exporter concerned may be provided with the reasons 
for which it is proposed to reject the offer of an undertaking and may be given an opportunity 
to  make  comments  thereon.  The  reasons  for  rejection  shall  be  set  out  in  the  definitive 
decision. 

4. Parties which offer an undertaking shall be required to provide a non-confidential version 
of such undertaking, so that it may be made available to interested parties to the investigation. 

5. Where undertakings are, after consultation, accepted and where there is no objection raised 
within the Advisory Committee, the investigation shall be terminated. In all other cases, the 
Commission shall submit to the Council forthwith a report on the results of the consultation, 
together  with  a  proposal  that  the  investigation  be  terminated.  The  investigation  shall  be 
deemed terminated if, within one month, the Council, acting by a qualified majority, has not 
decided otherwise. 

6. If the undertakings are accepted, the investigation of dumping and injury shall normally be 
completed.  In  such  a  case,  if  a  negative  determination  of  dumping  or  injury  is  made,  the 
undertaking  shall  automatically  lapse,  except  in  cases  where  such  a  determination  is  due  in 
large  part  to  the  existence  of  an  undertaking.  In  such  cases  it  may  be  required  that  an 
undertaking  be  maintained  for  a  reasonable  period.  In  the  event  that  an  affirmative 
determination of dumping and injury is made, the undertaking shall continue consistent with 
its terms and the provisions of this Regulation. 

7. The Commission shall require any exporter from which an undertaking has been accepted 
to  provide,  periodically,  information  relevant  to  the  fulfilment  of  such  undertaking,  and  to 
permit  verification  of  pertinent  data.  Non-compliance  with  such  requirements  shall  be 
construed as a breach of the undertaking. 

8.  Where  undertakings  are  accepted  from  certain  exporters  during  the  course  of  an 
investigation, they shall, for the purpose of Article 11, be deemed to take effect from the date 
on which the investigation is concluded for the exporting country. 

(cid:208) 461/2004 Art. 1 pt. 2 

9. In case of breach or withdrawal of undertakings by any party to the undertaking, or in case 
of  withdrawal  of  acceptance  of  the  undertaking  by  the  Commission,  the  acceptance  of  the 
undertaking shall, after consultation, be withdrawn by Commission Decision or Commission 
Regulation,  as  appropriate,  and  the  provisional  duty  which  has  been  imposed  by  the 
Commission in accordance with Article 7 or the definitive duty which has been imposed by 
the  Council  in  accordance  with  Article  9(4)  shall  automatically  apply,  provided  that  the 
exporter concerned has, except where he himself has withdrawn the undertaking, been given 
an opportunity to comment. 

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Any interested party or Member State may submit information showing prima facie evidence 
of a breach of an undertaking. The subsequent assessment of whether or not a breach of an 
undertaking has occurred shall normally be concluded within six months, but in no case later 
than  nine  months  following  a  duly  substantiated  request.  The  Commission  may  request  the 
assistance  of  the  competent  authorities  of  the  Member  States  in  the  monitoring  of 
undertakings. 

10.  A  provisional  duty  may,  after  consultation,  be  imposed  in  accordance  with  Article  7  on 
the  basis  of  the  best  information  available,  where  there  is  reason  to  believe  that  an 
undertaking is being breached, or in case of breach or withdrawal of an undertaking where the 
investigation which led to the undertaking has not been concluded. 

(cid:208) 384/96 

Article 9 

Termination without measures; imposition of definitive duties 

1.  Where  the  complaint  is  withdrawn,  the  proceeding  may  be  terminated  unless  such 
termination would not be in the Community interest. 

2.  Where,  after  consultation,  protective  measures  are  unnecessary  and  there  is  no  objection 
raised within the Advisory Committee, the investigation or proceeding shall be terminated. In 
all other cases, the Commission shall submit to the Council forthwith a report on the results of 
the consultation, together with a proposal that the proceeding be terminated. The proceeding 
shall be deemed terminated if, within one month, the Council, acting by a qualified majority, 
has not decided otherwise. 

3.  For  a  proceeding  initiated  pursuant  to  Article  5(9),  injury  shall  normally  be  regarded  as 
negligible where the imports concerned represent less than the volumes set out in Article 5(7). 
For the same proceeding, there shall be immediate termination where it is determined that the 
margin of dumping is less than 2 %, expressed as a percentage of the export price, provided 
that  it  is  only  the  investigation  that  shall  be  terminated  where  the  margin  is  below  2 %  for 
individual  exporters  and  they  shall  remain  subject  to  the  proceeding  and  may  be 
reinvestigated  in  any  subsequent  review  carried  out  for  the  country  concerned  pursuant  to 
Article 11. 

(cid:208) 461/2004 Art. 1 pt. 3 

4.  Where  the  facts  as  finally  established  show  that  there  is  dumping  and  injury  caused 
thereby,  and  the  Community  interest  calls  for  intervention  in  accordance  with  Article  21,  a 
definitive anti-dumping duty shall be imposed by the Council, acting on a proposal submitted 
by  the  Commission  after  consultation  of  the  Advisory  Committee.  The  proposal  shall  be 
adopted by the Council unless it decides by a simple majority to reject the proposal, within a 
period of one month after its submission by the Commission. Where provisional duties are in 
force, a proposal for definitive action shall be submitted not later than one month before the 
expiry  of  such  duties.  The  amount  of  the  anti-dumping  duty  shall  not  exceed  the  margin  of 

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dumping  established  but  it  should  be  less  than  the  margin  if  such  lesser  duty  would  be 
adequate to remove the injury to the Community industry. 

(cid:208) 1972/2002 Art. 1 pt. 6 

5. An anti-dumping duty shall be imposed in the appropriate amounts in each case, on a non-
discriminatory basis on imports of a product from all sources found to be 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 demonstrate, on the basis of properly substantiated claims that: 

(a) 

(b) 

(c) 

(d) 

(e) 

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

export prices and quantities, and conditions and terms of sale are freely determined; 

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 interference; 

exchange rate conversions are carried out at the market rate; and 

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

(cid:208) 384/96 

6. When the Commission has limited its examination in accordance with Article 17, any anti-
dumping  duty  applied  to  imports  from  exporters  or  producers  which  have  made  themselves 
known  in  accordance  with  Article  17  but  were  not  included  in  the  examination  shall  not 
exceed the weighted average margin of dumping established for the parties in the sample. For 
the  purpose  of  this  paragraph,  the  Commission  shall  disregard  any  zero  and  de  minimis 
margins,  and  margins  established  in  the  circumstances  referred  to  in  Article  18.  Individual 
duties shall be applied to imports from any exporter or producer which is granted individual 
treatment, as provided for in Article 17. 

Article 10 

Retroactivity 

1. Provisional measures and definitive anti-dumping duties shall only be applied to products 
which enter free circulation after the time when the decision taken pursuant to Articles 7(1) 

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or 9(4),  as  the  case  may  be,  enters  into  force,  subject  to  the  exceptions  set  out  in  this 
Regulation. 

2.  Where  a  provisional  duty  has  been  applied  and  the  facts  as  finally  established  show  that 
there is dumping and injury, the Council shall decide, irrespective of whether a definitive anti-
dumping duty is to be imposed, what proportion of the provisional duty is to be definitively 
collected. For this purpose, ‘injury’ shall not include material retardation of the establishment 
of  a  Community  industry,  nor  threat  of  material  injury,  except  where  it  is  found  that  this 
would,  in  the  absence  of  provisional  measures,  have  developed  into  material  injury.  In  all 
other cases involving such threat or retardation, any provisional amounts shall be released and 
definitive  duties  can  only  be  imposed  from  the  date  that  a  final  determination  of  threat  or 
material retardation is made. 

3. If the definitive anti-dumping duty is higher than the provisional duty, the difference shall 
not  be  collected.  If  the  definitive  duty  is  lower  than  the  provisional  duty,  the  duty  shall  be 
recalculated.  Where  a  final  determination  is  negative,  the  provisional  duty  shall  not  be 
confirmed. 

4.  A  definitive  anti-dumping  duty  may  be  levied  on  products  which  were  entered  for 
consumption not more than 90 days prior to the date of application of provisional measures 
but not prior to the initiation of the investigation, provided that imports have been registered 
in  accordance  with  Article  14(5),  the  Commission  has  allowed  the  importers  concerned  an 
opportunity to comment, and: 

(a) 

(b) 

there is, for the product in question, a history of dumping over an extended period, or 
the importer was aware of, or should have been aware of, the dumping as regards the 
extent of the dumping and the injury alleged or found; and 

in  addition  to  the  level  of  imports  which  caused  injury  during  the  investigation 
period, there is a further substantial rise in imports which, in the light of its timing 
and  volume  and  other  circumstances,  is  likely  to  seriously  undermine  the  remedial 
effect of the definitive anti-dumping duty to be applied. 

5. In cases of breach or withdrawal of undertakings, definitive duties may be levied on goods 
entered  for  free  circulation  not  more  than  90  days  before  the  application  of  provisional 
measures,  provided  that  imports  have  been  registered  in  accordance  with  Article  14(5),  and 
that any such retroactive assessment shall not apply to imports entered before the breach or 
withdrawal of the undertaking. 

Article 11 

Duration, reviews and refunds 

1. An anti-dumping measure shall remain in force only as long as, and to the extent that, it is 
necessary to counteract the dumping which is causing injury. 

2. A definitive anti-dumping measure shall expire five years from its imposition or five years 
from the date of the conclusion of the most recent review which has covered both dumping 
and  injury,  unless  it  is  determined  in  a  review  that  the  expiry  would  be  likely  to  lead  to  a 
continuation or recurrence of dumping and injury. Such an expiry review shall be initiated on 

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the  initiative  of  the  Commission,  or  upon  request  made  by  or  on  behalf  of  Community 
producers, and the measure shall remain in force pending the outcome of such review. 

An  expiry  review  shall  be  initiated  where  the  request  contains  sufficient  evidence  that  the 
expiry of the measures would be likely to result in a continuation or recurrence of dumping 
and injury. Such likelihood may, for example, be indicated by evidence of continued dumping 
and  injury  or  evidence  that  the  removal  of  injury  is  partly  or  solely  due  to  the  existence  of 
measures or evidence that the circumstances of the exporters, or market conditions, are such 
that they would indicate the likelihood of further injurious dumping. 

investigations  under 

In  carrying  out 
the 
representatives of the exporting country and the Community producers shall be provided with 
the opportunity to amplify, rebut or comment on the matters set out in the review request, and 
conclusions  shall  be  reached  with  due  account  taken  of  all  relevant  and  duly  documented 
evidence presented in relation to the question as to whether the expiry of measures would be 
likely, or unlikely, to lead to the continuation or recurrence of dumping and injury. 

this  paragraph, 

the  exporters, 

importers, 

A  notice  of  impending  expiry  shall  be  published  in  the  Official  Journal  of  the  European 
Union at an appropriate time in the final year of the period of application of the measures as 
defined  in  this  paragraph.  Thereafter,  the  Community  producers  shall,  no  later  than  three 
months  before  the  end  of  the  five-year  period,  be  entitled  to  lodge  a  review  request  in 
accordance with the second sub-paragraph. A notice announcing the actual expiry of measures 
pursuant to this paragraph shall also be published. 

3. The need for the continued imposition of measures may also be reviewed, where warranted, 
on  the  initiative  of  the  Commission  or  at  the  request  of  a  Member  State  or,  provided  that  a 
reasonable period of time of at least one year has elapsed since the imposition of the definitive 
measure, upon a request by any exporter or importer or by the Community producers which 
contains sufficient evidence substantiating the need for such an interim review. 

An  interim  review  shall  be  initiated  where  the  request  contains  sufficient  evidence  that  the 
continued imposition of the measure is no longer necessary to offset dumping and/or that the 
injury would be unlikely to continue or recur if the measure were removed or varied, or that 
the  existing  measure  is  not,  or  is  no  longer,  sufficient  to  counteract  the  dumping  which  is 
causing injury. 

In  carrying  out  investigations  pursuant  to  this  paragraph,  the  Commission  may,  inter  alia, 
consider  whether  the  circumstances  with  regard  to  dumping  and  injury  have  changed 
significantly, or whether existing measures are achieving the intended results in removing the 
injury previously established under Article 3. In these respects, account shall be taken in the 
final determination of all relevant and duly documented evidence. 

4.  A  review  shall  also  be  carried  out  for  the  purpose  of  determining  individual  margins  of 
dumping for new exporters in the exporting country in question which have not exported the 
product during the period of investigation on which the measures were based. 

The review shall be initiated where a new exporter or producer can show that it is not related 
to  any  of  the  exporters  or  producers  in  the  exporting  country  which  are  subject  to  the  anti-
dumping  measures  on  the  product,  and  that  it  has  actually  exported  to  the  Community 
following  the  investigation  period,  or  where  it  can  demonstrate  that  it  has  entered  into  an 
irrevocable contractual obligation to export a significant quantity to the Community. 

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A review for a new exporter shall be initiated, and carried out on an accelerated basis, after 
consultation of the Advisory Committee and after Community producers have been given an 
opportunity to comment. The Commission Regulation initiating a review shall repeal the duty 
in  force  with  regard  to  the  new  exporter  concerned  by  amending  the  Regulation  which  has 
imposed  such  duty,  and  by  making  imports  subject  to  registration  in  accordance  with 
Article 14(5) in order to ensure that, should the review result in a determination of dumping in 
respect of such an exporter, anti-dumping duties can be levied retroactively to the date of the 
initiation of the review. 

The  provisions  of  this  paragraph  shall  not  apply  where  duties  have  been  imposed  under 
Article 9(6). 

(cid:208) 461/2004 Art. 1 pt. 4 (adapted) 

5.  The  relevant  provisions  of  this  Regulation  with  regard  to  procedures  and  the  conduct  of 
investigations,  excluding  those  relating  to  time  limits,  shall  apply  to  any  review  carried  out 
pursuant to paragraphs 2, 3 and 4 . Reviews carried out pursuant to paragraphs 2 and 3 shall 
be carried out expeditiously and shall normally be concluded within 12 months of the date of 
initiation of the review. In any event, reviews pursuant to paragraphs 2 and 3 shall in all cases 
be  concluded  within  15  months  of  initiation.  Reviews  pursuant  to  paragraph  4  shall  in  all 
cases  be  concluded  within  nine  months  of  the  date  of  initiation.  If  a  review  carried  out 
pursuant to paragraph 2 is initiated while a review under paragraph 3 is ongoing in the same 
proceeding,  the  review  pursuant  to  paragraph  3  shall  be  concluded  at  the  same  time  as  the 
review pursuant to paragraph 2. 

The Commission shall submit a proposal for action to the Council not later than one month 
before the expiry of the deadlines ⌦ specified in the first subparagraph ⌫ . 

If  the  investigation  is  not  completed  within  the  deadlines  ⌦ specified  in  the  first 
subparagraph ⌫, the measures shall: 

– 

– 

expire in investigations pursuant to paragraph 2 , 

expire  in  the  case  of  investigations  carried  out  pursuant  to  paragraphs  2  and  3  in 
parallel, where either the investigation pursuant to paragraph 2 was initiated while a 
review  under  paragraph  3  was  ongoing  in  the  same  proceeding  or  where  such 
reviews were initiated at the same time, or 

– 

remain unchanged in investigations pursuant to paragraphs 3 and 4 . 

A  notice  announcing  the  actual  expiry  or  maintenance  of  the  measures  pursuant  to  this 
paragraph shall then be published in the Official Journal of the European Union. 

6. Reviews pursuant to this Article shall be initiated by the Commission after consultation of 
the  Advisory  Committee.  Where  warranted  by  reviews,  measures  shall  be  repealed  or 
maintained  pursuant  to  paragraph  2,  or  repealed,  maintained  or  amended  pursuant  to 
paragraphs  3  and  4,  by  the  Community  institution  responsible  for  their  introduction.  Where 

(cid:208) 384/96 (adapted) 

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32 

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measures  are  repealed  for  individual  exporters,  but  not  for  the  country  as  a  whole,  such 
exporters shall remain subject to the proceeding and may, automatically, be reinvestigated in 
any subsequent review carried out for that country pursuant to this Article. 

7. Where a review of measures pursuant to paragraph 3 is in progress at the end of the period 
of  application  of  measures  as  defined  in  paragraph  2,  such  review  shall  also  cover  the 
circumstances set out in paragraph 2. 

8. Notwithstanding paragraph 2, an importer may request reimbursement of duties collected 
where it is shown that the dumping margin, on the basis of which duties were paid, has been 
eliminated, or reduced to a level which is below the level of the duty in force. 

In requesting a refund of anti-dumping duties, the importer shall submit an application to the 
Commission.  The  application  shall  be  submitted  via  the  Member  State  of  the  territory  in 
which the products were released for free circulation, within six months of the date on which 
the  amount  of  the  definitive  duties  to  be  levied  was  duly  determined  by  the  competent 
authorities  or  of  the  date  on  which  a  decision  was  made  definitively  to  collect  the  amounts 
secured  by  way  of  provisional  duty.  Member  States  shall  forward  the  request  to  the 
Commission forthwith. 

An application for refund shall only be considered to be duly supported by evidence where it 
contains precise information on the amount of refund of anti-dumping duties claimed and all 
customs documentation relating to the calculation and payment of such amount. It shall also 
include  evidence,  for  a  representative  period,  of  normal  values  and  export  prices  to  the 
Community  for  the  exporter  or  producer  to  which  the  duty  applies.  In  cases  where  the 
importer is not associate with the exporter or producer concerned and such information is not 
immediately  available,  or  where  the  exporter  or  producer  is  unwilling  to  release  it  to  the 
importer,  the  application  shall  contain  a  statement  from  the  exporter  or  producer  that  the 
dumping  margin  has  been  reduced  or  eliminated,  as  specified  in  this  Article,  and  that  the 
relevant supporting evidence will be provided to the Commission. Where such evidence is not 
forthcoming from the exporter or producer within a reasonable period of time the application 
shall be rejected. 

The Commission shall, after consultation of the Advisory Committee, decide whether and to 
what  extent  the  application  should  be  granted,  or  it  may  decide  at  any  time  to  initiate  an 
interim  review,  whereupon  the  information  and  findings  from  such  review  carried  out  in 
accordance  with  the  provisions  applicable  for  such  reviews,  shall  be  used  to  determine 
whether and to what extent a refund is justified. Refunds of duties shall normally take place 
within  12  months,  and  in  no  circumstances  more  than  18  months  after  the  date  on  which  a 
request for a refund, duly supported by evidence, has been made by an importer of the product 
subject to the anti-dumping duty. The payment of any refund authorised should normally be 
made by Member States within 90 days of the ⌦ Commission's ⌫decision. 

9. In all review or refund investigations carried out pursuant to this Article, the Commission 
shall, provided that circumstances have not changed, apply the same methodology as in the 
investigation  which  led  to  the  duty,  with  due  account  being  taken  of  Article  2,  and  in 
particular paragraphs 11 and 12 thereof, and of Article 17. 

10. In any investigation carried our pursuant to this Article, the Commission shall examine the 
reliability  of  export  prices  in  accordance  with  Article  2.  However,  where  it  is  decided  to 
construct  the  export  price  in  accordance  with  Article  2(9),  it  shall  calculate  it  with  no 

EN 

33 

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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. 

Article 12 

⌦ Reinvestigation ⌫ 

(cid:208) 461/2004 Art. 1 pt. 5 

1.  Where  the  Community  industry  or  any  other  interested  party  submit,  normally  within 
two years from the entry into force of the measures, sufficient information showing that, after 
the original investigation period and prior to or following the imposition of measures, export 
prices  have  decreased  or  that there  has  been  no  movement,  or  insufficient  movement  in  the 
resale  prices  or  subsequent  selling  prices  of  the  imported  product  in  the  Community,  the 
investigation  may,  after  consultation,  be  reopened  to  examine  whether  the  measure  has  had 
effects on the abovementioned prices. 

The investigation may also be reopened, under the conditions set out above, at the initiative of 
the Commission or at the request of a Member State. 

(cid:208) 384/96 

2.  During  a  reinvestigation  pursuant  to  this  Article,  exporters,  importers  and  Community 
producers shall be provided with an opportunity to clarify the situation with regard to resale 
prices  and  subsequent  selling  prices:  if  it  is  concluded  that  the  measure  should  have  led  to 
movements  in  such  prices,  then,  in  order  to  remove  the  injury  previously  established  in 
accordance with Article 3, export prices shall be reassessed in accordance with Article 2 and 
dumping margins shall be recalculated to take account of the reassessed export prices. 

Where  it  is  considered  that  the  conditions  of  Article  12(1)  are  met  due  to  a  fall  in  export 
prices which has occurred after the original investigation period and prior to or following the 
imposition of measures, dumping margins may be recalculated to take account of such lower 
export prices. 

(cid:208) 461/2004 Art. 1 pt. 6 

(cid:208) 461/2004 Art. 1 pt. 7 

3. Where a reinvestigation pursuant to this Article shows increased dumping, the measures in 
force  may,  after  consultation,  be  amended  by  the  Council,  acting  on  a  proposal  from  the 
Commission  in  accordance  with  the  new  findings  on  export  prices.  The  proposal  shall  be 
adopted by the Council unless it decides by a simple majority to reject the proposal, within a 
period of one month after its submission by the Commission. The amount of the anti-dumping 

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34 

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duty imposed pursuant to this Article shall not exceed twice the amount of the duty imposed 
initially by the Council. 

(cid:208) 461/2004 Art. 1 pt. 8 (adapted) 

4.  The  relevant  provisions  of  Articles  5  and  6 shall  apply  to  any  reinvestigation  carried  out 
pursuant to this Article, except that such reinvestigation shall be carried out expeditiously and 
shall normally be concluded within six months of the date of initiation of the reinvestigation. 
In  any  event,  such  reinvestigations  shall  in  all  cases  be  concluded  within  nine  months  of 
initiation of the reinvestigation. 

The Commission shall submit a proposal for action to the Council not later than one month 
before the expiry of the deadlines ⌦ specified in the first subparagraph ⌫ . 

If  the  reinvestigation  is  not  completed  within  the  deadlines  ⌦ specified  in  the  first 
subparagraph ⌫, measures shall remain unchanged. A notice announcing the maintenance of 
the  measures  pursuant  to  this  paragraph  shall  be  published  in  the  Official  Journal  of  the 
European Union. 

(cid:208) 384/96 

5. Alleged changes in normal value shall only be taken into account under this Article where 
complete  information  on  revised  normal  values,  duly  substantiated  by  evidence,  is  made 
available  to  the  Commission  within  the  time  limits  set  out  in  the  notice  of  initiation  of  an 
investigation.  Where  an  investigation  involves  a  re-examination  of  normal  values,  imports 
may be made subject to registration in accordance with Article 14(5) pending the outcome of 
the reinvestigation. 

EN 

35 

   EN 

 
 
 
Article 13 

Circumvention 

(cid:208) 461/2004 Art. 1 pt. 9 (adapted) 

1. Anti-dumping duties imposed pursuant to this Regulation may be extended to imports from 
third  countries,  of  the  like  product,  whether  slightly  modified  or  not,  or  to  imports  of  the 
slightly  modified  like  product  from  the  country  subject  to  measures,  or  parts  thereof,  when 
circumvention of the measures in force is taking place. Anti-dumping duties not exceeding the 
residual  anti-dumping  duty  imposed  in  accordance  with  Article  9(5)  may  be  extended  to 
imports from companies benefiting from individual duties in the countries subject to measures 
when circumvention of the measures in force is taking place. Circumvention shall be defined 
as  a  change  in  the  pattern  of  trade  between  third  countries  and  the  Community  or  between 
individual  companies  in  the  country  subject  to  measures  and  the  Community,  which  stems 
from  a  practice,  process  or  work  for  which  there  is  insufficient  due  cause  or  economic 
justification  other  than  the  imposition  of  the  duty,  and  where  there  is  evidence  of  injury  or 
that  the  remedial  effects  of  the  duty  are  being  undermined  in  terms  of  the  prices  and/or 
quantities  of  the  like  product,  and  where  there  is  evidence  of  dumping  in  relation  to  the 
normal values previously established for the like product, if necessary in accordance with the 
provisions of Article 2. 

The  practice,  process  or  work  referred  to  in  the  first  subparagraph  includes,  inter  alia,  the 
slight modification of  the product  concerned to  make  it  fall  under  customs  codes  which  are 
normally  not  subject  to  the  measures,  provided  that  the  modification  does  not  alter  its 
essential  characteristics,  the  consignment  of  the  product  subject  to  measures  via  third 
countries, the reorganisation by exporters or producers of their patterns and channels of sales 
in the country subject to measures in order to eventually have their products exported to the 
Community  through  producers  benefiting  from  an  individual  duty  rate  lower  than  that 
applicable  to  the  products  of  the  manufacturers,  and,  in  the  circumstances  indicated  in 
paragraph  2  ,  the  assembly  of  parts  by  an  assembly  operation  in  the  Community  or  a  third 
country. 

(cid:208) 384/96 

2.  An  assembly  operation  in  the  Community  or  a  third  country  shall  be  considered  to 
circumvent the measures in force where: 

(a) 

(b) 

the operation started or substantially increased since, or just prior to, the initiation of 
the anti-dumping investigation and the parts concerned are from the country subject 
to measures, and 

the  parts  constitute  60 %  or  more  of  the  total  value  of  the  parts  of  the  assembled 
product, except that in no case shall circumvention be considered to be taking place 
where  the  value  added  to  the  parts  brought  in,  during  the  assembly  or  completion 
operation, is greater than 25 % of the manufacturing cost, and 

EN 

36 

   EN 

 
 
 
(c) 

the remedial effects of the duty are being undermined in terms of the prices and/or 
quantities of the assembled like product and there is evidence of dumping in relation 
to the normal values previously established for the like or similar products. 

(cid:208) 461/2004 Art. 1 pt. 10 

3. Investigations shall be initiated pursuant to this Article on the initiative of the Commission 
or at the request of a Member State or any interested party on the basis of sufficient evidence 
regarding the factors set out in paragraph 1. Initiations shall be made, after consultation of the 
Advisory  Committee,  by  Commission  Regulation  which  may  also  instruct  the  customs 
authorities  to  make  imports  subject  to  registration  in  accordance  with  Article  14(5)  or  to 
request  guarantees.  Investigations  shall  be  carried  out  by  the  Commission,  which  may  be 
assisted by customs authorities and shall be concluded within nine months. When the facts as 
finally ascertained justify the extension of measures, this shall be done by the Council, acting 
on  a  proposal  submitted  by  the  Commission,  after  consultation  of  the  Advisory  Committee. 
The proposal shall be adopted by the Council unless it decides by a simple majority to reject 
the  proposal,  within  a  period  of  one  month  after  its  submission  by  the  Commission.  The 
extension  shall  take  effect  from  the  date  on  which  registration  was  imposed  pursuant  to 
Article  14(5)  or  on  which  guarantees  were  requested.  The  relevant  procedural  provisions  of 
this  Regulation  with  regard  to  initiations  and  the  conduct  of  investigations  shall  apply 
pursuant to this Article. 

(cid:208) 461/2004 Art. 1 pt. 11 
(adapted) 

4. Imports shall not be subject to registration pursuant to Article 14(5) or measures where they 
are  traded  by  companies  which  benefit  from  exemptions.  Requests  for  exemptions  duly 
supported  by  evidence  shall  be  submitted  within  the  time  limits  established  in  the 
Commission  Regulation  initiating  the  investigation.  Where  the  circumventing  practice, 
process or work takes place outside the Community, exemptions may be granted to producers 
of the product concerned that can show that they are not related to any producer subject to the 
measures  and  that  are  found  not  to  be  engaged  in  circumvention  practices  as  defined  in 
paragraphs 1 and 2 of this Article . Where the circumventing practice, process or work takes 
place inside the Community, exemptions may be granted to importers that can show that they 
are not related to producers subject to the measures. 

These exemptions ⌦ shall be ⌫ granted by decision of the Commission after consultation 
of  the  Advisory  Committee  or  decision  of  the  Council  imposing  measures  and  shall  remain 
valid for the period and under the conditions set down therein. 

Provided that the conditions set in Article 11(4) are met, exemptions may also be granted after 
the conclusion of the investigation leading to the extension of the measures. 

Provided that at least one year has lapsed from the extension of the measures, and in case the 
number  of  parties  requesting  or  potentially  requesting  an  exemption  is  significant,  the 
Commission  may  decide  to  initiate  a  review  of  the  extension  of  the  measures.  Any  such 
review shall be conducted in accordance with the provisions of Article 11(5) as applicable to 
reviews pursuant to Article 11(3). 

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37 

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5.  Nothing  in  this  Article  shall  preclude  the  normal  application  of  the  provisions  in  force 
concerning customs duties. 

(cid:208) 384/96 

Article 14 

General provisions 

1. Provisional or definitive anti-dumping duties shall be imposed by Regulation, and collected 
by  Member  States  in  the  form,  at  the  rate  specified  and  according  to  the  other  criteria  laid 
down  in  the  Regulation  imposing  such  duties.  Such  duties  shall  also  be  collected 
independently  of  the  customs  duties,  taxes  and  other  charges  normally  imposed  on  imports. 
No product shall be subject to both anti-dumping and countervailing duties for the purpose of 
dealing with one and the same situation arising from dumping or from export subsidisation. 

2.  Regulations  imposing  provisional  or  definitive  anti-dumping  duties,  and  Regulations  or 
Decisions  accepting  undertakings  or  terminating  investigations  or  proceedings,  shall  be 
published in the Official Journal of the European Union. Such Regulations or Decisions shall 
contain  in  particular  and  with  due  regard  to  the  protection  of  confidential  information,  the 
names of the exporters, if possible, or of the countries involved, a description of the product 
and  a  summary  of  the  material  facts  and  considerations  relevant  to  the  dumping  and  injury 
determinations.  In  each  case,  a  copy  of  the  Regulation  or  Decision  shall  be  sent  to  known 
interested parties. The provisions of this paragraph shall apply mutatis mutandis to reviews. 

3.  Special  provisions,  in  particular  with  regard  to  the  common  definition  of  the  concept  of 
origin, as contained in Council Regulation (EEC) No 2913/928, may be adopted pursuant to 
this Regulation. 

(cid:208) 461/2004 Art. 1 pt. 12 

4.  In  the  Community  interest,  measures  imposed  pursuant  to  this  Regulation  may,  after 
consultation of the Advisory Committee, be suspended by a decision of the Commission for a 
period of nine months. The suspension may be extended for a further period, not exceeding 
one year, if the Council so decides, acting on a proposal from the Commission. The proposal 
shall be adopted by the Council unless it decides by a simple majority to reject the proposal, 
within a period of one month after its submission by the Commission. Measures may only be 
suspended where market conditions have temporarily changed to an extent that injury would 
be unlikely to resume as a result of the suspension, and provided that the Community industry 
has been given an opportunity to comment and these comments have been taken into account. 
Measures may, at any time and after consultation, be reinstated if the reason for suspension is 
no longer applicable. 

8 

OJ L 302, 19.10.1992, p. 1. 

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38 

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(cid:208) 384/96 

5.  The  Commission  may,  after  consultation  of  the  Advisory  Committee,  direct  the  customs 
authorities  to  take  the  appropriate  steps  to  register  imports,  so  that  measures  may 
subsequently be applied against those imports from the date of such registration. Imports may 
be  made  subject  to  registration  following  a  request  from  the  Community  industry  which 
contains  sufficient  evidence  to  justify  such  action.  Registration  shall  be  introduced  by 
Regulation  which  shall  specify  the  purpose  of  the  action  and,  if  appropriate,  the  estimated 
amount  of  possible  future  liability.  Imports  shall  not  be  made  subject  to  registration  for  a 
period longer than nine months. 

6. Member States shall report to the Commission every month, on the import trade in products 
subject  to  investigation  and  to  measures,  and  on  the  amount  of  duties  collected  pursuant  to 
this Regulation. 

(cid:208) 461/2004 Art. 1 pt. 13 

7. Without prejudice to paragraph 6, the Commission may request Member States, on a case 
by  case  basis,  to  supply  information  necessary  to  monitor  efficiently  the  application  of 
measures.  In  this  respect,  the  provisions  of  Article  6(3)  and  (4)  shall  apply.  Any  data 
submitted  by  Member  States  pursuant  to  this  Article  shall  be  covered  by  the  provisions  of 
Article 19(6). 

(cid:208) 384/96 

Article 15 

Consultations 

1.  Any  consultations  provided  for  in  this  Regulation  shall  take  place  within  an  Advisory 
Committee, which shall consist of representatives of each Member State, with a representative 
of the Commission as chairman. Consultations shall be held immediately at the request of a 
Member State or on the initiative of the Commission and in any event within a period of time 
which allows the time limits set by this Regulation to be adhered to. 

2. The Committee shall meet when convened by its chairman. He shall provide the Member 
States, as promptly as possible, but no later than 10 working days before the meeting, with all 
relevant information. 

(cid:208) 461/2004 Art. 1 pt. 14 

3. Where necessary, consultation may be in writing only; in that event, the Commission shall 
notify  the  Member  States  and  shall  specify  a  period  within  which  they  shall  be  entitled  to 

(cid:208) 384/96 

EN 

39 

   EN 

 
 
 
 
 
 
express  their  opinions  or  to  request  an  oral  consultation  which  the  chairman  shall  arrange, 
provided that such oral consultation can be held within a period of time which allows the time 
limits set by this Regulation to be adhered to. 

4. Consultation shall cover, in particular: 

(a) 

(b) 

(c) 

(d) 

the existence of dumping and the methods of establishing the dumping margin; 

the existence and extent of injury; 

the causal link between the dumped imports and injury; 

the measures which, in the circumstances, are appropriate to prevent or remedy the 
injury  caused  by  dumping  and  the  ways  and  means  of  putting  such  measures  into 
effect. 

Article 16 

Verification visits 

1.  The  Commission  shall,  where  it  considers  it  appropriate,  carry  out  visits  to  examine  the 
records  of 
trade  associations  and 
organisations and to verify information provided on dumping and injury. In the absence of a 
proper and timely reply, a verification visit may not be carried out. 

traders,  agents,  producers, 

importers,  exporters, 

2. The Commission may carry out investigations in third countries as required, provided that 
it  obtains  the  agreement  of  the  firms  concerned,  that  it  notifies  the  representatives  of  the 
government of the country in question and that the latter does not object to the investigation. 
As soon as the agreement of the firms concerned has been obtained the Commission should 
notify the authorities of the exporting country of the names and addresses of the firms to be 
visited and the dates agreed. 

3. The firms concerned shall be advised of the nature of the information to be verified during 
verification  visits  and  of  any  further  information  which  needs  to  be  provided  during  such 
visits, though this should not preclude requests made during the verification for further details 
to be provided in the light of information obtained. 

4.  In  investigations  carried  out  pursuant  to  paragraphs  1,  2  and  3,  the  Commission  shall  be 
assisted by officials of those Member States who so request. 

Article 17 

Sampling 

1.  In  cases  where  the  number  of  complainants,  exporters  or  importers,  types  of  product  or 
transactions  is  large,  the  investigation  may  be  limited  to  a  reasonable  number  of  parties, 
products  or  transactions  by  using  samples  which  are  statistically  valid  on  the  basis  of 
information  available  at  the  time  of  the  selection,  or  to  the  largest  representative  volume  of 
production, sales or exports which can reasonably be investigated within the time available. 

EN 

40 

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2. The final selection of parties, types of products or transactions made under these sampling 
provisions  shall  rest  with  the  Commission,  though  preference  shall  be  given  to  choosing  a 
sample  in  consultation  with,  and  with  the  consent  of,  the  parties  concerned,  provided  such 
parties make themselves known and make sufficient information available, within three weeks 
of initiation of the investigation, to enable a representative sample to be chosen. 

3.  In  cases  where  the  examination  has  been  limited  in  accordance  with  this  Article,  an 
individual margin of dumping shall, nevertheless, be calculated for any exporter or producer 
not initially selected who submits the necessary information within the time limits provided 
for  in  this  Regulation,  except  where  the  number  of  exporters  or  producers  is  so  large  that 
individual examinations would be unduly burdensome and would prevent completion of the 
investigation in good time. 

4. Where it is decided to sample and there is a degree of non-cooperation by some or all of the 
parties  selected  which  is  likely  to  materially  affect  the  outcome  of  the  investigation,  a  new 
sample may be selected. However, if a material degree of non-cooperation persists or there is 
insufficient time to select a new sample, the relevant provisions of Article 18 shall apply. 

Article 18  

Non-cooperation 

1.  In  cases  in  which  any  interested  party  refuses  access  to,  or  otherwise  does  not  provide, 
necessary  information  within  the  time  limits  provided  in  this  Regulation,  or  significantly 
impedes the investigation, provisional or final findings, affirmative or negative, may be made 
on  the  basis  of  the  facts  available.  Where  it  is  found  that  any  interested  party  has  supplied 
false or misleading information, the information shall be disregarded and use may be made of 
facts  available.  Interested  parties  should  be  made  aware  of 
the  consequences  of 
non-cooperation. 

2. Failure to give a computerised response shall not be deemed to constitute non-cooperation, 
provided that the interested party shows that presenting the response as requested would result 
in an unreasonable extra burden or unreasonable additional cost. 

3. Where the information submitted by an interested party is not ideal in all respects it should 
nevertheless not be disregarded, provided that any deficiencies are not such as to cause undue 
difficulty in arriving at a reasonably accurate finding and that the information is appropriately 
submitted in good time and is verifiable, and that the party has acted to the best of its ability. 

4. If evidence or information is not accepted, the supplying party shall be informed forthwith 
of  the  reasons  therefor  and  shall  be  granted  an  opportunity  to  provide  further  explanations 
within the time limit specified. If the explanations are considered unsatisfactory, the reasons 
for  rejection  of  such  evidence  or  information  shall  be  disclosed  and  given  in  published 
findings. 

5. If determinations, including those regarding normal value, are based on the provisions of 
paragraph 1, including the information supplied in the complaint, it shall, where practicable 
and  with  due  regard  to  the  time  limits  of  the  investigation,  be  checked  by  reference  to 
information from other independent sources which may be available, such as published price 

EN 

41 

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lists,  official  import  statistics  and  customs  returns,  or  information  obtained  from  other 
interested parties during the investigation. 

Such  information  may  include  relevant  data  pertaining  to  the  world  market  or  other 
representative markets, where appropriate. 

(cid:208) 1972/2002 Art. 1 pt. 7 

6.  If  an  interested  party  does  not  cooperate,  or  cooperates  only  partially,  so  that  relevant 
information is thereby withheld, the result may be less favourable to the party than if it had 
cooperated. 

(cid:208) 384/96 

Article 19 

Confidentiality 

1.  Any  information  which  is  by  nature  confidential,  (for  example,  because  its  disclosure 
would be of significant competitive advantage to a competitor or would have a significantly 
adverse effect upon a person supplying the information or upon a person from whom he has 
acquired  the  information)  or  which  is  provided  on  a  confidential  basis  by  parties  to  an 
investigation, shall, if good cause is shown, be treated as such by the authorities. 

2.  Interested  parties  providing  confidential  information  shall  be  required  to  furnish  non-
confidential  summaries  thereof.  Those  summaries  shall  be  in  sufficient  detail  to  permit  a 
reasonable  understanding  of  the  substance  of  the  information  submitted  in  confidence.  In 
exceptional circumstances, such parties may indicate that such information is not susceptible 
of  summary.  In  such  exceptional  circumstances,  a  statement  of  the  reasons  why 
summarisation is not possible must be provided. 

3. If it is considered that a request for confidentiality is not warranted and if the supplier of 
the  information  is  either  unwilling  to  make  the  information  available  or  to  authorise  its 
disclosure in generalised or summary form, such information may be disregarded unless it can 
be  satisfactorily  demonstrated  from  appropriate  sources  that  the  information  is  correct. 
Requests for confidentiality shall not be arbitrarily rejected. 

4.  This  Article  shall  not  preclude  the  disclosure  of  general  information  by  the  Community 
authorities  and  in  particular  of  the  reasons  on  which  decisions  taken  pursuant  to  this 
Regulation are based, or disclosure of the evidence relied on by the Community authorities in 
so far as is necessary to explain those reasons in court proceedings. Such disclosure must take 
into account the legitimate interests of the parties concerned that their business secrets should 
not be divulged. 

5. The Council, the Commission and Member States, or the officials of any of these, shall not 
reveal any information received pursuant to this Regulation for which confidential treatment 
has been requested by its supplier, without specific permission from the supplier. Exchanges 
of  information  between  the  Commission  and  Member  States,  or  any  information  relating  to 

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consultations  made  pursuant  to  Article  15,  or  any  internal  documents  prepared  by  the 
authorities  of  the  Community  or  its  Member  States,  shall  not  be  divulged  except  as 
specifically provided for in this Regulation. 

6.  Information  received  pursuant  to  this  Regulation  shall  be  used  only  for  the  purpose  for 
which it was requested. This provision shall not preclude the use of information received in 
the  context  of  one  investigation  for  the  purpose  of  initiating  other  investigations  within  the 
same proceeding in relation to the product concerned. 

(cid:208) 461/2004 Art. 1 pt. 15 

(cid:208) 384/96  

Article 20 

Disclosure 

1.  The  complainants,  importers  and  exporters  and  their  representative  associations,  and 
representatives of the exporting country, may request disclosure of the details underlying the 
essential  facts  and  considerations  on  the  basis  of  which  provisional  measures  have  been 
imposed.  Requests  for  such  disclosure  shall  be  made  in  writing  immediately  following  the 
imposition  of  provisional  measures,  and  the  disclosure  shall  be  made  in  writing  as  soon  as 
possible thereafter. 

2. The parties mentioned in paragraph 1 may request final disclosure of the essential facts and 
considerations on the basis of which it is intended to recommend the imposition of definitive 
measures,  or  the  termination  of  an  investigation  or  proceedings  without  the  imposition  of 
measures, particular attention being paid to the disclosure of any facts or considerations which 
are different from those used for any provisional measures. 

3.  Requests  for  final  disclosure,  as  defined  in  paragraph  2,  shall  be  addressed  to  the 
Commission in writing and be received, in cases where a provisional duty has been applied, 
not later than one month after publication of the imposition of that duty. Where a provisional 
duty  has  not  been  applied,  parties  shall  be  provided  with  an  opportunity  to  request  final 
disclosure within time limits set by the Commission. 

4.  Final  disclosure  shall  be  given  in  writing.  It  shall  be  made,  due  regard  being  had  to  the 
protection of confidential information, as soon as possible and, normally,  not  later than  one 
month prior to a definitive decision or the submission by the Commission of any proposal for 
final  action  pursuant  to  Article  9.  Where  the  Commission  is  not  in  a  position  to  disclose 
certain  facts  or  considerations  at  that  time,  these  shall  be  disclosed  as  soon  as  possible 
thereafter. Disclosure shall not prejudice any subsequent decision which may be taken by the 
Commission  or  the  Council  but  where  such  decision  is  based  on  any  different  facts  and 
considerations, these shall be disclosed as soon as possible. 

5. Representations made after final disclosure is given shall be taken into consideration only if 
received  within  a  period  to  be  set  by  the  Commission  in  each  case,  which  shall  be  at  least 
10 days, due consideration being given to the urgency of the matter. 

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Article 21 

Community interest 

1. A determination as to whether the Community interest calls for intervention shall be based 
on an appreciation of all the various interests taken as a whole, including the interests of the 
domestic industry and users and consumers, and a determination pursuant to this Article shall 
only be made where all parties have been given the opportunity to make their views known 
pursuant  to  paragraph  2.  In  such  an  examination,  the  need  to  eliminate  the  trade  distorting 
effects  of  injurious  dumping  and  to  restore  effective  competition  shall  be  given  special 
consideration.  Measures,  as  determined  on  the  basis  of  the  dumping  and  injury  found,  may 
not be applied where the authorities, on the basis of all the information submitted, can clearly 
conclude that it is not in the Community interest to apply such measures. 

2. In order to provide a sound basis on which the authorities can take account of all views and 
information  in  the  decision  as  to  whether  or  not  the  imposition  of  measures  is  in  the 
Community  interest,  the  complainants,  importers  and  their  representative  associations, 
representative  users  and  representative  consumer  organisations  may,  within  the  time  limits 
specified in the notice of initiation of the anti-dumping investigation, make themselves known 
and  provide  information  to  the  Commission.  Such  information,  or  appropriate  summaries 
thereof, shall be made available to the other parties specified in this Article, and they shall be 
entitled to respond to such information. 

3. The parties which have acted in conformity with paragraph 2 may request a hearing. Such 
requests shall be granted when they are submitted within the time limits set in paragraph 2, 
and when they set out the reasons, in terms of the Community interest, why the parties should 
be heard. 

4. The parties which have acted in conformity with paragraph 2 may provide comments on the 
application of any provisional duties  imposed.  Such  comments  shall be  received within one 
month  of  the  application  of  such  measures  if  they  are  to  be  taken  into  account  and  they,  or 
appropriate summaries thereof, shall be made available to other parties who shall be entitled 
to respond to such comments. 

5. The Commission shall examine the information which is properly submitted and the extent 
to which it is representative and the results of such analysis, together with an opinion on its 
merits, shall be transmitted to the Advisory Committee. The balance of views expressed in the 
Committee shall be taken into account by the Commission in any proposal made pursuant to 
Article 9. 

6.  The  parties  which  have  acted  in  conformity  with  paragraph  2  may  request  the  facts  and 
considerations on which final decisions are likely to be taken to be made available to them. 
Such information shall be made available to the extent possible and without prejudice to any 
subsequent decision taken by the Commission or the Council. 

7. Information shall only be taken into account where it is supported by actual evidence which 
substantiates its validity. 

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Article 22 

Final provisions 

This Regulation shall not preclude the application of: 

(a) 

(b) 

any  special  rules  laid  down  in  agreements  concluded  between  the  Community  and 
third countries; 

the Community Regulations in the agricultural sector and Council Regulations (EC) 
No 3448/939, (EC) No 1667/200610 and (EEC) No 2783/7511. This Regulation shall 
operate  by  way  of  complement  to  those  Regulations  and  in  derogation  from  any 
provisions thereof which preclude the application of anti-dumping duties; 

(c) 

special  measures,  provided  that  such  action  does  not  run  counter  to  obligations 
pursuant to the GATT. 

(cid:208)  

Article 23 

Repeal 

Regulation (EC) No 384/96 is repealed. 

However,  the  repeal  of  Regulation  (EC)  No  384/96  shall  not  prejudice  the  validity  of 
proceedings initiated thereunder. 

References to the repealed Regulation shall be construed as references to this Regulation and 
shall be read in accordance with the correlation table in Annex II. 

(cid:208) 384/96 

Article 24 

Entry into force 

This Regulation shall enter into force on the twentieth day following that of its publication in 
the Official Journal of the European Union. 

(cid:208) 384/96 (adapted) 

9 
10 
11 

OJ L 318, 20.12.1993, p. 18. 
OJ L 312, 11.11.2006, p. 1. 
OJ L 282, 1.11.1975, p. 104.  

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(cid:208) 384/96 

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

Done at Brussels, […] 

For the Council 
The President 
[…] 

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(cid:207) 

ANNEX I 

Repealed Regulation with list of its successive amendments 

Council Regulation (EC) No 384/96 
(OJ L 56, 6.3.1996, p. 1) 

Council Regulation (EC) No 2331/96 
(OJ L 317, 6.12.1996, p. 1) 

Council Regulation (EC) No 905/98 
(OJ L 128, 30.4.1998, p. 18) 

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

Council Regulation (EC) No 1972/2002 
(OJ L 305, 7.11.2002, p. 1) 

Council Regulation (EC) No 461/2004 
(OJ L 77, 13.3.2004, p. 12) 

Article 1 

Article 3, only as regards the reference to 
Regulation (EC) No 384/96. 

Council Regulation (EC) No 2117/2005 
(OJ L 340, 23.12.2005, p. 17) 

__________ 

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ANNEX II 

CORRELATION TABLE 

Regulation (EC) No 384/96 

This Regulation 

Article 1 

Article 2(1)  

Article 2(2) 

Article 1 

Article 2(1) 

Article 2(2)  

Article 2(3) first sentence 

Article 2(3) first subparagraph 

Article 2(3) second sentence 

Article 2(3) second subparagraph 

Article 2(4) 

Article 2(4) 

Article 2(5) first sentence 

Article 2(5) first subparagraph 

Article 2(5) second sentence 

Article 2(5) second subparagraph 

Article 2(5) second and third subparagraphs 

Article 2(5) third and fourth subparagraphs 

Article 2(6) to (9) 

Article 2(6) to (9) 

Article 2(10)(a) to (h) 

Article 2(10)(a) to (h) 

Article 2(10)(i) first sentence  

Article 2(10)(i) first subparagraph 

Article 2(10)(i) second sentence 

Article 2(10)(i) second subparagraph 

Article 2(10)(j) and (k) 

Article 2(10)(j) and (k) 

Article 2(11) and (12) 

Article 2(11) and (12) 

Article 3(1) 

Article 3(2) 

Article 3(3) 

Article 3(4) 

Article 3(1) 

Article  3(2), 
points (a) and (b) 

introductory  wording  and 

Article 3(3) 

Article  3(4), 
points (a) and (b) 

introductory  wording  and 

Article 3(5) to (9) 

Article 3(5) to (9) 

Article 4(1) introductory wording 

Article 4(1) introductory wording 

Article 4(1)(a) 

Article 4(1)(a) 

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Article 4(1)(b) 

Article 4(2) 

Article 4(3) and (4) 

Articles 5 to 22 

Article 23 

_ 

Article 24 first paragraph 

Article 24 second paragraph 

_ 

_ 

Article  4(1)(b),  introductory  wording  and 
points (i) and (ii) 

Article  4(2),  first  subparagraph,  introductory 
wording and points (a), (b) and (c) 

Article 4(2) second subparagraph 

Article 4(3) and (4) 

Articles 5 to 22 

_ 

Article 23 

Article 24 

_ 

Annex I 

Annex II 

__________ 

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