Keywords
Summary

Keywords

1. Common commercial policy – Protection against dumping – Dumping margin

(Council Regulation No 384/96, Arts 2(7)(a), (b) and (c), 11(3) and 20)

2. Common commercial policy – Protection against dumping – Dumping margin

(Council Regulation No 384/96, Art. 6(1))

Summary

1. Although the last sentence of Article 2(7)(c) of the basic anti-dumping Regulation No 384/96 prohibits the institutions from re-evaluating, for the purposes of determining the existence of dumping, information which was already available to them at the time of the initial determination as to market economy treatment, it cannot have the effect that normal value of the products concerned is to be determined according to the rules applicable to countries with a market economy where the party concerned is revealed, in the course of the investigation and possibly after the imposition of provisional measures, not to be operating under market economy conditions within the meaning of Article 2(7)(c) of the basic regulation.

Article 2(7)(a) of the basic regulation lays down a specific method of determining the normal value for imports from non-market economy countries, precisely because the information on which the determination of normal value is based under Article 2(1) to (6) is not regarded as reliable evidence for the purposes of calculating normal value. While Article 2(7)(b) of the basic regulation lays down, for certain countries, an exception to the method of determining normal value under Article 2(7)(a), that exception must be given a strict interpretation and cannot, consequently, apply where, following changes in the factual situation or the discovery of new evidence of which the Commission could not reasonably have been aware at the time, within three months of the initiation of the investigation, of the determination as to market economy treatment, the producer concerned is found not to fulfil the criteria which an undertaking operating under market economy conditions must satisfy.

For that reason, the last sentence of Article 2(7)(c) of the basic regulation does not preclude the grant of market economy treatment from being discontinued if a change in the factual situation on the basis of which such treatment was conferred no longer permits the conclusion that the producer concerned operates under market economy conditions.

In so far as that revocation of market economy treatment merely draws the consequences, for the future, from an established change in the relevant circumstances, and thus produces only prospective effects, it does not in any way constitute an interference with the vested rights of the undertaking concerned.

Moreover, revocation of market economy treatment does not have to be effected within the framework of the procedure under Article 11(3) of the basic regulation, since that provision covers only the review of the definitive measures imposed at the end of an anti-dumping proceeding. The purpose of the review procedure is to adapt the duties imposed to take account of the changes, after the imposition of those duties, in the factors which gave rise to them, and usually involves the use of an investigation period subsequent to the imposition of the definitive measures to be reviewed. On the other hand, the review procedure is not intended for the review of the factors which gave rise to those duties if they are unchanged, such a review consisting, in fact, in a reopening of the original procedure.

Finally, where it has been given an opportunity to put forward its observations as regards the consequences which the Commission intended to draw from the new factors which had been brought to its attention, the undertaking in question cannot allege an infringement of the rights of the defence, as recognised by the general principles of Community law and implemented by Article 20 of the basic regulation.

(see paras 44-47, 53-54, 56)

2. The fixing of an investigation period and the prohibition on consideration of factors arising subsequently are intended to ensure that the results of the investigation are representative and reliable. In that regard, the investigation period under Article 6(1) of basic anti-dumping Regulation No 384/96 is intended to ensure, in particular, that the factors on which the determination of dumping and injury is based are not influenced by the conduct of the producers concerned following the initiation of the anti-dumping proceeding and therefore that the definitive duty imposed as a result of the proceeding is appropriate to remedy effectively the injury caused by the dumping.

Moreover, since the adoption of anti-dumping duties is not a penalty for earlier behaviour but a protective and preventive measure against unfair competition resulting from dumping practices, it is necessary, in order to be able to determine the anti-dumping duties appropriate for protecting the Community industry against dumping, to carry out the investigation on the basis of information which is as recent as possible.

It follows that, by using the term ‘normally’, Article 6(1) of the basic regulation does allow exceptions to the rule against taking account of information relating to a period subsequent to the investigation period. Thus it is that, if factors relating to a period subsequent to the investigation period justify, because they reflect the current conduct of the undertakings concerned, the imposition or increase of an anti-dumping duty, the institutions are entitled, indeed obliged, to take account of them.

It follows that the Council correctly applies Article 6(1) of the basic regulation by taking account of an undertaking’s participation, subsequent to the investigation period, in a grouping of producers with the declared aim of circumventing anti-dumping duties and by revoking, as a result, its entitlement to market economy treatment so as to prevent the imposition of manifestly inappropriate definitive measures.

(see paras 59-61, 63)