ECJ 1. Common commercial policy – Protection against dumping practices – Dumping margin – Determination of the normal value – Constructed value – Taking into account a reasonable profit margin (Council Regulation No 2176/84, Art. 2 (3) (b) (ii)) 2. Common commercial policy – Protection against dumping practices – Dumping margin – Comparison between the normal value and the export price – Choice of the level of trade at which the values to be compared are determined -Taking into account the specific features of the commercial organization of the manufacturer concerned – Legality (Council Regulation No 2176/84, Art. 2 (9))
1. Where the Community institutions are obliged, under the procedure for calculating anti-dumping duties, to take the constructed value as a basis for establishing the normal value, they are entitled to adopt as a reasonable profit margin the margin obtained on the domestic market of the country of manufacture for similar products by a competitor of the manufacturer practising the dumping, particularly where they adopt the margin of the competitor with the lowest profit, and it is no defence to argue that the information in question is not known to the manufacturer concerned. Where it is impossible to take real prices as a basis, references to factors not known to the manufacturer concerned are often necessary under the system laid down by Regulation No 2176/84 and the degree of unforeseeability resulting therefrom has to be accepted. 2. Under the procedure for calculating anti-dumping duties, the Community institutions are not mistaken in making, for the purpose of establishing the dumping margin, a comparison between export prices established at the manufacturer’ s ‘ex-factory’ level and a constructed normal value at the ‘ex-exclusive distributor’ level, where it is apparent that, in view of the particular commercial structure adopted by the manufacturers of the exporting country which consists in entrusting to an exclusive distributor tasks normally carried out by a sales department, only the price charged by that distributor can be regarded as the normal value of the product. It is of little importance that the exclusive distributor does not sell the dumped products, since the normal value of those products must be constructed as if they had been sold on the domestic market.
Citations:
Case 301/85, C-301/85, [1988] EUECJ C-301/85
Links:
European, Commercial
Updated: 22 May 2022; Ref: scu.134223
