ECJ 1 It is clear from the wording of Article 2(3)(b)(ii) of the basic anti-dumping regulation, Regulation No 2423/88, which sets out three methods of calculating the constructed normal value, that those methods must be considered in the order in which they are set out. It is only where none of those methods can be applied that recourse must be had to the general provision at the end of Article 2(3)(b)(ii), to the effect that expenses and profit may be calculated `on any other reasonable basis’. Moreover, each of the methods of calculating constructed normal value must be applied in such a way that the calculation remains reasonable. Accordingly, the institutions cannot take into consideration accounting data which are unreliable.
Article 2(3)(b)(ii) also confers a wide discretion on the institutions in assessing accounting data submitted to them for the purposes of determining constructed normal value. The Court’s review must therefore be restricted to verifying whether the procedural rules have been complied with, whether the facts on which the contested assessment is based are accurate or whether there has been a manifest error in the appraisal of those facts or a misuse of powers.
The Community judicature cannot intervene in assessments reserved to the Community authorities but must restrict its review to satisfying itself that the institutions took account of all the relevant circumstances and appraised the facts of the matter with all due care, so that normal value may be regarded as having been determined in a reasonable manner.
2 Under the basic anti-dumping regulation, Regulation No 2423/88, it is for the Commission, as the investigating authority, to determine whether the product in question is being dumped and causing damage when it is released into free circulation in the Community. To that end, the Commission must verify whether the export price to the Community of the product in question is lower than the normal value of a similar product and, in so doing, must use the data available at the time without imposing the burden of proof on one of the parties.
However, the basic regulation does not confer on the Commission investigating powers enabling it to compel producers or exporters in respect of whom a complaint has been filed to participate in an investigation or to produce information. The replies given by undertakings to the questionnaire, and the verification after which the Commission may act on the spot are therefore essential to the course of the procedure.
Thus, the risk that the institutions may take into account data other than that provided in reply to the questionnaire is inherent in the anti-dumping procedure and is intended to encourage genuine cooperation on the part of the undertakings targeted by the investigation.
3 Costs relating to product repairs, incurred after the sale of the product, are by definition selling expenses within the meaning of Article 2(3)(b)(ii) of the basic anti-dumping regulation, Regulation No 2423/88. It follows that those costs must be taken into account when calculating the constructed normal value. The way in which undertakings treat certain types of costs when drawing up their annual accounts cannot call into question the classification of those costs for the purposes of an anti-dumping investigation.
Furthermore, by their nature, reductions for payment in cash do not affect the price payable by customers but correspond to the value attributed to early payment of the invoiced price. They are not therefore deductible from the constructed normal value and must be treated as selling expenses.
Citations:
T-48/96, [1999] EUECJ T-48/96
Links:
European
Updated: 06 June 2022; Ref: scu.173176
