Council of the European Union v Alumina d.o.o.
Date: 2014-10-01
20. It should be noted that the determination of the normal value of a product constitutes one of the essential steps required to prove the existence of dumping. The first subparagraph of Article 2(1) of the basic regulation provides, in that regard, that ‘[t]he 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’. In that regard, it should also be noted that, in the determination of the normal value, it is apparent from both from the wording and the scheme of that provision that it is the price actually paid or payable in the ordinary course of trade which must, as a matter of priority, be taken into consideration in principle to establish the normal value. Under the first subparagraph of Article 2(3) of the basic regulation, that principle may be derogated from only when there are no sales of the like product in the ordinary course of trade or when such sales are insufficient or do not permit a proper comparison (judgment in Goldstar  v Council , C‑105/90, EU:C:1992:69, paragraph 12).
21. Those derogations from the method of establishing the normal value on the basis of actual prices are exhaustive in nature and relate to the characteristics of the sales effected rather than to the price of the product (judgment in Ajinomoto and NutraSweet  v Council and Commission , C‑76/98 P and C‑77/98 P, EU:C:2001:234, paragraph 40).
23. In the first place, the third subparagraph of Article 2(1) of the basic regulation states that prices between parties which appear to be associated or to have concluded 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, exceptionally, that those prices are unaffected by that relationship (judgment in Petrotub and Republica  v Council , C‑76/00 P, EU:C:2003:4, paragraph 85).
25. However, Article 2 of the basic regulation does not thereby provide an exhaustive list of the methods making it possible to determine whether the prices were charged in the ordinary course of trade. In that regard, the Court has already stated that the ordinary course of trade is a concept which relates to the character of the sales themselves. It is designed to exclude, for the determination of the normal value, situations in which sales on the domestic market are not made under conditions corresponding to the ordinary course of trade, in particular where a product is sold at a price below production costs or where transactions take place between parties which are associated or have a compensatory arrangement with each other (see the judgments in Goldstar  v Council , EU:C:1992:69, paragraph 13, and Ajinomoto and NutraSweet  v Council and Commission , EU:C:2001:234, paragraph 38).
32. It must therefore be held that the General Court’s finding, in paragraph 38 of the judgment under appeal, that that premium artificially boosts the normal value calculated, is compatible with the Court’s existing case-law according to which the inclusion of that risk premium was such as to affect the normal character of the sales (see the judgment in Ajinomoto and NutraSweet  v Council and Commission , EU:C:2001:234, paragraphs 39 and 41). In this regard, it must be held that, in that context, the institutions must examine whether that condition of sale has been applied to all customers in general on the market of the like product or whether it was specific in the light of the situation of the customer at issue.