ECJ The right to a fair hearing, as a principle of fundamental character, must be observed not only in administrative proceedings which may result in the imposition of penalties, but also in investigative proceedings such as those prior to the adoption of anti-dumping regulations which, despite their general scope, may directly and individually affect the undertakings concerned and entail adverse consequences for them.
So far as the defence against dumping practices is concerned, any action taken by the Community institutions must be all the more scrupulous in view of the fact that, as they stand at present, the rules in question do not provide all the procedural guarantees for the protection of the individual which may exist in certain national legal systems.
In performing their duty to provide information under Article 7(4)(b) of Regulation No 2176/84, the Community institutions must act with all due diligence by seeking to provide the undertakings concerned, as far as is compatible with the obligation not to disclose business secrets, with information relevant to the defence of their interests, choosing, if necessary on their own initiative, the appropriate means of providing such information. In any event, the undertakings concerned should have been placed in a position during the administrative procedure in which they could effectively make known their views on the correctness and relevance of the facts and circumstances alleged and on the evidence presented by the Commission in support of its allegation concerning the existence of dumping and the resultant injury.
Although the information requested may, under Article 7(4)(c)(ii) of Regulation No 2176/84, be supplied in a purely oral manner, that possibility cannot release the Community authorities from their obligation to ensure that they have evidence enabling them, if necessary, to prove that such information was actually communicated.
While it is true that the amount of the definitive duty constitutes essential information, such is not the case with regard to the type of duty adopted and its method of calculation, if only because the choice between the various types of anti-dumping duties has in principle no effect on the final amount of that duty. The absence of such information cannot therefore be treated as infringing the right to a fair hearing.
C-49/88,  EUECJ C-49/88
Updated: 23 May 2022; Ref: scu.134823