Keywords
Summary

Keywords

1. Common commercial policy - Protection against dumping - Dumping margin - Introduction of a fixed anti-dumping duty - Conditions

(Council Regulations No 384/96, Arts 2(11) and (12), 9(4), 11(3) and (8), and No 449/98)

2. Common commercial policy - Protection against dumping - Fixing of anti-dumping duties - Choice of duties to be imposed - Observance of the principle of proportionality - Discretion of the Community legislature - Judicial review - Limits

(EC Treaty, Art. 3b (now Art. 5 EC); Council Regulation No 384/96, Arts 9(4), 14(1) and 21(1))

3. Acts of the institutions - Statement of reasons - Obligation - Scope

(EC Treaty, Art. 190 (now Art. 253 EC))

Summary

1. The established dumping margin referred to in Article 9(4) of the basic anti-dumping regulation (Regulation No 384/96) is the margin found during the period of investigation. Under Article 2(11) and (12) of the regulation, the dumping margin is determined by reference to that period.

The basic anti-dumping regulation (No 384/96) does not permit any factors other than those in respect of which findings are made during the period of investigation, such as, for example, the actual dumping margin for future export transactions, to be taken into account for the purposes of fixing the dumping margin. A Council regulation imposing anti-dumping duties must be based on facts established following a procedure in which interested parties make known their views. Thus, under the basic anti-dumping regulation (No 384/96), the concept of an actual dumping margin is relevant only in the context of procedures for the review of existing duties or the refund of duty collected, which are referred to in paragraphs (3) and (8) respectively of Article 11 of the regulation.

Therefore an exporter whose products have been subject to a fixed anti-dumping duty and who acknowledges that the fixed duty was set at a level equal to the margin of dumping established during the investigation - and who does not dispute that the dumping margin was lower than the injury margin - cannot claim that the imposition of a fixed duty infringed Article 9(4) of the basic regulation, even if the anti-dumping duty imposed was higher than the actual dumping margin.

( see paras 33-37 )

2. By virtue of the principle of proportionality, as expressed in Article 3b of the Treaty (now Article 5 EC), the legality of Community rules is subject to the condition that the means employed must be appropriate to attain the legitimate objective pursued and must not go further than is necessary to attain it, and, where there is a choice of appropriate measures, it is necessary, in principle, to choose the least onerous.

It is apparent from Article 9(4) and Article 21(1) of the basic anti-dumping regulation (No 384/96) that the objective pursued by the Community institutions in imposing an anti-dumping duty is the elimination of the dumping margin in so far as that margin harms the Community industry. Nevertheless, having regard to the fact that Article 14(1) of the basic regulation leaves the Community institutions a wide discretion to determine, in each case, the appropriate type of duty, review by the Community judicature must be limited to ascertaining whether the measures adopted by the Community legislature are manifestly inappropriate having regard to the objective pursued.

Before imposing anti-dumping duties, the Community institutions balance the various interests at stake. They take into account not only the interests of the importers and exporters being investigated, but also the interests of the Community industry, and, as is apparent from Article 21 of the basic anti-dumping regulation (No 384/96), the interests of users and consumers. The fact that various interests are to be balanced is conveyed by the wording of Article 9(4) of the basic regulation, which provides that the amount of the anti-dumping duty may not exceed the amount necessary to remove the injury to the Community industry.

Therefore, it is reasonable for the Community institutions to take into account considerations relating to the effectiveness of the measure which they may take when choosing the type of duty to be imposed. It follows that in deciding upon the appropriate anti-dumping duty the institutions may take into account the risk of the duty in question being circumvented. Where circumvention of a type of duty is foreseeable, that duty will be inappropriate, because applying it will not result in the elimination of the injury caused to the Community industry.

( see paras 39-40, 42, 52-53 )

3. The statement of reasons required by Article 190 of the Treaty (now Article 253 EC) must show clearly and unequivocally the reasoning of the Community authority adopting the contested measure, so as to inform the persons concerned of the reasons given for the measure adopted and thus enable them to defend their rights and the Community judicature to exercise its power of review. The extent of the obligation to state reasons must be assessed in the light of the context and the procedure in which the contested regulation was adopted and the body of legal rules governing the field concerned.

( see para. 65 )