Keywords
Summary

Keywords

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1 . Action for annulment - Action brought against a regulation imposing a provisional anti-dumping duty - Subsequent adoption of a regulation imposing a definitive anti-dumping duty at a lower rate - Consequences regarding the interest in bringing proceedings

( EEC Treaty, Art . 173 )

2 . Action for annulment - Natural or legal persons - Acts of direct and individual concern to them - Regulation imposing anti-dumping duties - Importers who are associated with the exporter and whose resale prices have been used to establish the dumping margin or to calculate the anti-dumping duty

( EEC Treaty, Art . 173, second paragraph )

3 . Common commercial policy - Protection against dumping - Dumping margin - Determination of the normal value - Country not having a market economy - Criteria for identification

( Council Regulations Nos 1765/82 and 2176/84, Art . 2(5 ) )

4 . Common commercial policy - Protection against dumping - Dumping margin - Determination of the normal value - Imports from countries not having a market economy - Principal factor to be taken into account - Price actually charged for a like product in a market-economy non-member country - Choice of reference country - Characteristics required of the domestic market of the country chosen

( Council Regulation No 2176/84, Art . 2(5 ) )

5 . Common commercial policy - Protection against dumping - Dumping margin - Comparison between the normal value and export price expressed in different currencies - Use of the official rates of exchange

( Council Regulation No 2176/84 )

6 . Common commercial policy - Protection against dumping - Procedure for a fresh examination - Subject-matter - Continuation or ending of injury - Factors to be taken into consideration - Volume of imports during the period considered in the context of an earlier anti-dumping procedure - Exclusion

( Council Regulation No 2176/84, Arts 14(1 ) and 4(2 ) )

7 . Common commercial policy - Protection against dumping - Injury - Factors to be taken into consideration - Several - Discretion of the institutions - Decline in the market share of dumped imports - Not decisive

( Council Regulation No 2176/84, Art . 4(2 ) )

8 . Common commercial policy - Protection against dumping - Injury - Market share of the imported products - Method of calculation - Determination after initial stocking period on the basis of import figures - Lawfulness

( Council Regulation No 2176/84, Art . 4(2 ) )

9 . Common commercial policy - Protection against dumping - Determination of anti-dumping duties - Discretionary power of the institutions - Imposition of a variable duty equal to the difference between a minimum price and the net, free-at-frontier price or, as far as importers associated with the exporter are concerned, the sales price to the first purchaser - Legality

( Council Regulation Nos 1224/80, Art . 6, 2176/84, Art . 13(2 ), and 864/87 )

10 . Common commercial policy - Protection against dumping - Regulation imposing a definitive anti-dumping duty - Unlawfulness of the regulation imposing a provisional anti-dumping duty - Effect on the legality of the regulation imposing a definitive duty - Conditions

( Council Regulation No 2176/84 )

Summary

1 . When the amounts secured as provisional anti-dumping duties are collected, in accordance with the regulation imposing a definitive anti-dumping duty, at the rate of duty definitively imposed, no reliance may be placed by an importer required to pay those amounts on any legal effect arising out of the regulation imposing the provisional duty such as to found an interest in contesting that regulation .

Nor may any such interest be founded by the possibilities offered by a finding of the nullity of the regulation imposing the provisional duty in the context of a claim for damages . In so far as the amounts secured under the provisional regulation are collected under the regulation imposing the definitive duty, one regulation replacing the other as the basis for such collection, it would be possible to plead the illegality of the definitive regulation in support of such a claim .

Although the legality of the regulation imposing the provisional duty has no effect on any claim for damages in connection with the collection of the duty, an interest in seeking a declaration that the provisional regulation is void with a view to a damages claim may be recognized, solely as regards the amounts secured which were discharged because the rate of the definitive duty was lower than the rate of provisional duty, provided that evidence is adduced of damage in connection with the amounts secured .

2 . Regulations imposing an anti-dumping duty, although by their nature and scope of a legislative nature, are of direct and individual concern inter alia to those importers whose resale prices have been used to establish the dumping margin or for calculating the anti-dumping duty itself .

3 . By providing that, with regard to imports from countries not having a market economy, the normal value is to be determined on the basis essentially of the price at which the like product is actually sold in a market-economy country, Article 2(5 ) of Regulation No 2176/84 seeks to prevent account from being taken of prices and costs in non-market-economy countries which are not the normal result of market forces .

Therefore, in order to determine whether a country not appearing among those described in the abovementioned provision as countries not having a market economy, in particular those to which Regulation ( EEC ) No 1765/82 of 30 June 1982 on common rules for imports from State-trading countries applies, is to be regarded as a market-economy country within the meaning of Article 2(5 ), it is necessary to examine whether in that country trade in products similar to those alleged to be dumped is subject to a total or near monopoly, or whether all domestic prices are fixed by the State .

4 . Provided that during the period of the investigation there is a sufficient number of transactions to ensure the representative nature of the market in relation to the exports in question, the size of the domestic market is not in principle a factor capable of being taken into consideration where a reference country for the purposes of Article 2(5 ) is chosen because the imports alleged to be dumped originate in a country not having a market economy .

Similarly, the absence of imports is not in itself sufficient to render the domestic market of a given country inappropriate for reference purposes, where there is sufficient competition on that market to ensure that the prices charged there are representative .

5 . In determining the dumping margin, the institutions may take into account the official rates of exchange on the basis of which international commercial transactions are carried out .

6 . In the context of an anti-dumping procedure opened following a request for a review made by the associations of producers concerned, whose purpose is to check whether the undertakings given by the exporters from the countries in question and accepted by the institutions during a previous anti-dumping procedure continue to be sufficient to eliminate the injury caused by the dumped imports, it is not necessary in determining injury to use the figures for imports effected during the period taken into consideration in the context of the earlier anti-dumping procedure .

7 . In accordance with Article 4(2 ) of Regulation No 2176/84, the examination of injury must involve a whole series of factors no one or several of which can give decisive guidance .

For that reason a decline in the market share of dumped imports does not preclude a finding that significant injury is being caused by them, where that finding is based on various factors to be taken into consideration under the abovementioned provision .

8 . Any difference between the figures for imports of dumped products and for sales on the Community market brought about by the need to maintain stocks in the Community is only a temporary problem during the period when such stocks are built up, so that once this period has elapsed the market share of the imported products may be calculated on the basis of the volume of imports .

9 . Under Article 13(2 ) of Regulation No 2176/84, regulations imposing an anti-dumping duty are to indicate in particular the amount and type of duty imposed, together with certain other matters . Accordingly the institutions are free to choose, within the limits of their margin of discretion, between the different types of duty .

The Council does not exceed the limits of its discretionary power when it decides, in the interests of transparency, efficiency and in order to induce exporters to raise their prices, to impose a variable duty calculated according to the difference between the net, free-at-frontier price and a minimum price, and in considering it necessary, as regards importers associated with an exporter, to base its calculation of the anti-dumping duty on the customs value of the imported goods, determined in accordance with Article 6 of Regulation No 1224/80 on the basis of the price paid by the first buyer not associated with the exporter . First, a variable duty is generally more favourable to the traders in question, on account of the fact that it enables collection of anti-dumping duty to be avoided entirely provided that the imports are effected at prices above the minimum price fixed; secondly, in respect of transactions between associated parties and as regards the determination of the net unit free-at-Community-frontier price, the same uncertainties apply as in calculating the dumping margin with regard to the genuineness of the export price paid or payable by an importer associated with the exporter .

10 . The legality of a regulation imposing a definitive anti-dumping duty and definitively collecting the provisional anti-dumping duty may be affected by any illegality of the provisional regulation only in so far as that illegality is reflected in the definitive regulation .