ECJ 1. The rejection by the Commission of a proposed undertaking in the course of an anti-dumping proceeding is not a measure having binding legal effects of such a kind as to affect the interests of the traders concerned, because the Commission may revoke its decision or the Council may decide not to introduce an anti-dumping duty. Such a rejection is an intermediate measure whose purpose is to prepare for the final decision, and is not therefore a measure which may be challenged by an action for its annulment.
It is by challenging the regulation introducing definitive anti-dumping duties that traders can raise any irregularity associated with the rejection of their proposed undertakings.
2. Regulations introducing an anti-dumping duty are legislative in nature and scope, inasmuch as they apply to all traders generally. Nevertheless, it is conceivable that some provisions of those regulations may be of direct and individual concern to those producers and exporters of the product in question who are alleged on the basis of information about their business activities to be dumping.
This is true in general of producers and exporters who are able to establish that they were identified in the measures adopted by the Commission or the Council or were concerned by the preliminary investigations. The same is true of those importers whose resale prices were taken into account for the construction of export prices, and those traders, limited in number and identified by the institutions, whose business dealings with the producer of the products concerned display particular features which were taken into account in the construction of the normal value and in the calculation of the weighted dumping margin on the basis of which the anti-dumping duty was fixed.
3. No miscalculation of the dumping margin may be said to occur where the institutions determine it solely at the stage of the exporting manufacturer without establishing separate margins for specific exporters, on the ground that those exporters are not established in the country of exportation and do not sell the products complained of on the domestic market of the country of exportation, and therefore the dumping can be attributed only to the exporting manufacturer.
4. The attitude of a trading partner – even a major partner – of the Community towards protection against dumping does not suffice to oblige the Community to follow the same course when applying its own legislation on the matter.
5. For the calculation of the anti-dumping duty, Article 13(3 ) of Regulation No 2176/84 merely requires the institutions not to exceed either the dumping margin established or the extent of the injury, if a duty lower than the dumping margin would be adequate to remove the injury. The institutions thus enjoy a wide discretion in choosing the method for calculating the duty and are not obliged to adopt for that purpose the same method as that used for determining the dumping margin.
6. The imposition of an anti-dumping duty at a standard rate applicable to all imports of a given product does not, even though it may not have the same effect on the profit margins of different importers, infringe the principle prohibiting discrimination; that difference in the effects of the duty is the result not of the introduction of the duty but of the sales policy of the exporting manufacturer, and the introduction of an anti-dumping duty seeks to remove the injury caused to Community producers and not to ensure that all importers enjoy the same profit margin.
7. Article 10 of Regulation No 2176/84 does not rule out the possibility for the Commission of accepting an undertaking offered by an importer, but its wording implies that such an undertaking may be accepted only in exceptional cases. Article 10(4) and (6), dealing with the continuation of the investigation after the acceptance of undertakings and the introduction of anti-dumping duties after the withdrawal of an undertaking or the discovery that it has been infringed, refers only to exporters, that is to say, those traders whose undertakings may a priori be accepted.
[1990] EUECJ C-133/87
Bailii
Citing:
See Also – Nashua Corporation and Others v Commission and Council ECJ 25-Jun-1987
ECJ It does not lie within the jurisdiction of the judge hearing an application for interim measures to allow a request for the suspension of the operation of a council regulation imposing a definitive . .
Lists of cited by and citing cases may be incomplete.
European
Updated: 23 December 2021; Ref: scu.538248
