Council Regulation (EEC) No 812/86 of 14 March 1986 on protection against imports which are the subject of dumping between the Community of Ten and the new Member States or between the new Member States during the period throughout which the transitional measures laid down by the Act of Accession of Spain and Portugal apply

• CELEX: Regulation (EEC) No 812/86
• Articles: 14

Article 1

Applicability

This Regulation lays down provisions for protection against dumping in imports between the Community of Ten and the new Member States or between the new Member States during the period of application of the transitional measures defined by the Act of Accession of Spain and Portugal.

Article 2

Principles and definitions

A. DUMPING

1. The products referred to are products originating in the Community of Ten or in Spain or Portugal.

2. An anti-dumping duty may be applied to any dumped product whose clearance for home use in the Community of Ten or in Spain or Portugal causes inury, where the interests of the Community require Community action.

3. A product shall be considered to have been dumped if its export price to the Community of Ten or to Spain or Portugal is less than the normal value of a like product.

B. NORMAL VALUE

4. For the purposes of this Regulation, normal value means:

(a) the comparable price actually paid or payable in the ordinary course of trade for the like product intended for home use in the exporting country or country of origin, providing that if there is considerable variation in prices within the Community of Ten, the weighted average of the prices prevailing within the Community of Ten may be taken as the comparable price; or

(b) when there are no sales of the like product in the ordinary course of trade on the domestic market of the exporting country or country of origin, or when such sales do not permit a proper comparison:

(i) the comparable price of the like product when exported to any third country, which may be the highest such export price but should be a representative price; or

(ii) the constructed value, determined by adding cost of production and a reasonable margin of profit. The cost of production shall be computed on the basis of all costs, in the ordinary course of trade, both fixed and variable, in the country of origin, of materials and manufacture, plus a reasonable amount for selling, administrative and other general expenses. As a general rule, and provided that a profit is normally realized on sales of products of the same general category on the domestic market of the country of origin, the addition for profit shall not exceed such normal profit. In other cases, the addition shall be determined on any reasonable basis, using available information. 5. Whenever there are reasonable grounds for believing or suspecting that the price at which a product is actually sold for home use in the country of origin is less than the cost of production as defined in paragraph 4 (b) (ii), sales at such prices may be considered as not having been made in the ordinary course of trade if they:

(a) have been made over an extended period of time and in substantial quantities; and

(b) are not at prices which permit recovery of all costs within a reasonable period of time in the normal course of trade.

In such circumstances, the normal value may be determined on the basis of the remaining sales on the domestic market made at a price which is not less than the cost of production or on the basis of export sales to third countries or on the basis of the constructed value or by adjusting the sub-production-cost price referred to above in order to eliminate loss and provide for a reasonable profit. Such normal-value calculations shall be based on available information.

6. Where a product is not imported directly from the country of origin but is exported to the Community of Ten or to Spain or Portugal from an intermediate country, the normal value shall be the comparable price actually paid or payable for the like product on the domestic market of either the country of export or the country of origin. The latter basis might be appropriate inter alia where the product is merely transhipped through the country of export, where such products are not produced in the country of export, or where no comparable price for it exists in the country of export.

7. For the purpose of determining normal value, transactions between parties which appear to be associated or to have a compensatory arrangement with each other may be considered as not being in the ordinary course of trade unless the Community authorities are satisfied that the prices and costs involved are comparable to those involved in transactions between parties which have no such link.

C. EXPORT PRICE

8. (a) The export price shall be the price actually paid or payable for the product sold for export to the Community of Ten or to Spain or Portugal, as the case may be.

(b) In cases where there is no export price or where it appears that there is an association or a compensatory arrangement between the exporter and the importer or a third party or there are other reasons for thinking that the price actually paid or payable for the product sold for export to the Community of Ten or to Spain or Portugal is unreliable, the export price may be constructed on the basis of the price at which the imported product is first resold to an independent buyer, or if the product is not resold to an independent buyer, or not resold in the condition as imported, on any reasonable basis. In such cases, allowance shall be made for all costs incurred between importation and resale, including all duties and taxes, and for a reasonable profit margin.

In particular, allowance shall be made for the following:

(i) usual transport, insurance, handling, loading and ancillary costs;

(ii) customs duties, any anti-dumping duties, and other taxes payable in the importing country by reason of the importation or sale of the goods;

(iii) a reasonable margin for overheads and profit and/or any commission usually paid or agreed.

D. COMPARISON

9. To ensure a fair comparison, the export price and the normal value compared shall be on a comparable basis as regards the physical characteristics of the product, the quantities involved and the conditions and terms of sale. They shall normally be compared at the same level of trade, preferably at the ex factory level, and as nearly as possible at the same time.

10. If the export price and the normal value are not on a comparable basis in respect of the factors mentioned in paragraph 9, due allowance shall be made in each case, on its merits, for differences affecting price comparability. Where adjustment for such differences is claimed by an interested party, the onus shall be on the interested party to prove that its claim is justified.

The following guidelines shall apply in determing such adjustments:

(a) differences in the physical characteristics of the product: adjustment for such differences shall normally be based on their effect on the market value in the exporting country or country of origin; however, where domestic pricing data in that country are not available or do not permit a fair comparison, the calculation shall be based on the production costs accounting for such differences;

(b) differences in quantities: adjustment shall be made when the amount of any price differential is wholly or partly due to either:

(i) quantity discounts that have been freely available in the ordinary course of trade over a representative preceding period of time, usually not less than six months, in respect of a substantial proportion, usually not less than 20 %, of the total sales of the product concerned on the domestic market or,

(ii) savings in production costs for the different quantities.

However, where the export price is based on quantities which are less than the smallest quantity sold on the domestic market or to third countries, as the case may be, an adjustment shall be made to reflect the higher price for which the smaller quantity would be sold on the domestic or third-country market;

(c) differences in conditions and terms of sale: adjustments shall be made only for differences directly relevant to the sales under consideration, including, for example, differences in credit terms, guarantees, warranties, technical assistance, after-sales service, commission or salaries paid to salesmen, packing, transport, insurance, handling, loading and ancillary costs and differences in the level of trade not otherwise allowed for; no adjustment will generally be made for differences in overheads and general expenses, including research development or advertising costs; the size of adjustments shall normally be determined by the cost of such differences to the seller, though consideration may also be given to their effect on the value of the product;

(d) differences in import charges: adjustments shall be made for the exemption of the product exported to the Community of Ten or to Spain or Portugal, as the case may be, from import charges borne by the like product or materials physically incorporated therein when destined for consumption in the exporting country or country of origin, or for the refund of such charges.

E. ALLOCATION OF COSTS

11. In general, all cost calculations shall be based on available accounting data, normally allocated, where necessary, in proportion to the turnover for each product and market under consideration.

F. LIKE PRODUCT

12. For the purposes of this Regulation, 'like product' means a product which is identical, i.e. alike in all respects to the product under consideration, or, in the absence of such a product, another product which has characteristics closely resembling those of the product under consideration.

G. DUMPING MARGIN

13. (a) 'Dumping margin' means the amount by which the normal value exceeds the export price.

(b) Where prices vary, the dumping margin may be established on a transaction-by-transaction basis or by reference to the most frequently occurring, representative or weighted average, prices.

(c) Where dumping margins vary, weighted averages may be established.

H. CONSULTATION OF INTERESTED MEMBER STATES

14. For the purposes of this Regulation, consultation of interested Member States in connection with anti-dumping proceedings means the consultation, in writing and, if necessary, orally, of Member States which have an economic interest in the proceedings and have declared such interest within the period laid down by the Commission when it sent them the information referred to in Article 4 (3) and (6).

Article 3

Injury

1. A determination of injury shall be made only if the dumped imports cause injury, i.e. are causing or threatening to cause, through the effects of the dumping, material injury to an established industry in the Community of Ten or in Spain or Portugal or are materially retarding the establishment of such an industry. Injuries due to other factors, such as the volume and prices of imports that are not dumped or contraction in demand, which, individually or in combination, also adversely affect the industry in the Community of Ten or in Spain or in Portugal, must not be attribued to the dumped imports.

2. The determination of injury shall involve an examination of the following factors, no one or combination of which shall necessarily be conclusive:

(a) the volume of the dumped imports, and in particular whether there has been a significant increase in dumped imports, either in absolute terms or relative to production or consumption in the Community of Ten or in Spain or Portugal, as the case may be;

(b) the prices of the dumped imports, and in particular whether there has been significant price undercutting as compared with the prices of a like product in the Community of Ten or in Spain or Portugal, as the case may be; (c) the consequent impact on the industry concerned as indicated by actual or potential trends in the relevant economic factors such as:

- production,

- utilization of capacity,

- stocks,

- sales,

- market share,

- prices (i.e. depression of prices or prevention of price increases which otherwise would have occurred),

- profits,

- return on investment,

- cash flow,

- employment.

3. A determination of threat of injury may only be made where a particular situation is likely to develop into actual injury. In this regard account may be taken of factors such as:

(a) rate of increase of the dumped exports to the Community of Ten or to Spain or Portugal;

(b) export capacity in the country of origin or export, already in existence or which will be operational in the foreseeable future, and the likelihood that the resulting exports will be to the Community of Ten or to Spain or Portugal.

4. The effect of the dumped imports shall be assessed in relation to the production in the Community of Ten or Spain or Portugal of the like product when available data permit its separate identification. When the production in the Community of Ten or in Spain or Portugal of the like product has no separate identity, the effect of the dumped imports shall be assessed in relation to the production of the narrowest group or range of production which includes the like product for which the necessary information can be found.

5. The term 'industry in the Community of Ten, in Spain or in Portugal' shall be interpreted as referring to all the producers of the like products in the Community of Ten or in Spain or Portugal, as the case may be, or to those of them whose collective output of the products constitutes a major proportion of the relevant production of those products, except that:

- where some of the producers are related to the exporters or importers or are themselves importers of the allegedly dumped product the term 'industry in the Community of Ten, in Spain or in Portugal' may be interpreted as referring to the rest of the producers,

- in exceptional circumstances the Community of Ten may, for the production in question, be divided into two or more competitive markets and the producers within each market regarded as an industry of the Community of Ten, if,

(a) the producers within such market sell all or almost all their production of the product in question in that market, and

(b) the demand in that market is not to any substantial degree supplied by producers of the product in question located elsewhere in the Community of Ten.

In such circumstances injury may be found to exist even where a major proportion of the total industry in the Community of Ten is not injured, provided that there is a concentration of dumped imports into such an isolated market and provided further that the dumped imports are causing injury to the producers of all or almost all of the production of the product within such markets.

Article 4

Complaint

1. Any natural or legal person, or any association not having legal personality, acting on behalf of an industry of the Community of Ten, of Spain or Portugal which considers itself injured or threatened by dumped imports may lodge a written complaint.

2. The complaint shall contain sufficient evidence of the existence of dumping and the injury resulting therefrom.

3. The complaint may be submitted to the Commission, or to a Member State, which shall forward it to the Commission. The Commission shall send Member States a copy of any complaint it receives.

4. The complaint may be withdrawn, in which case proceedings may be terminated unless such termination would not be in the interest of the Community.

5. Where it becomes apparent, after consultation of the Member States concerned, that the complaint does not provide sufficient evidence to justify initiating an investigation, then the complainant shall be so informed.

6. Where, in the absence of any complaint, a Member State is in possession of sufficient evidence both of dumping and of injury resulting therefrom for an industry of the Community of Ten, of Spain or Portugal, it shall immediately communicate such evidence to the Commission, which shall send the other Member States a copy thereof.

Article 5

Initiation and subsequent conduct of proceedings

1. Where, after consultation of the interested Member States, there appears to be sufficient evidence to warrant initiating proceedings, the Commission shall immediately:

(a) announce the initiation of proceedings by publishing a notice in the Official Journal of the European Communities; such notice shall state the product and Member States concerned, summarize the evidence, and invite interested parties to submit relevant infor mation to the Commission; they shall state the period within which interested parties may make written representations and apply to be heard orally by the Commission in accordance with paragraph 5;

(b) so advise interested Member States, the complainants and the exporters and importers known to the Commission to be concerned;

(c) commence an investigation at Community level, acting in cooperation with the Member States; the investigation shall cover both the alleged dumping and the resultant injury and shall be carried out in accordance with paragraphs 2 to 8; the investigation of dumping shall normally cover a period of not less than six months immediately prior to the initiation of proceedings.

2. The Commission shall seek all information it deems necessary and may, where it considers it appropriate to do so, examine and check the records of importers, exporters, traders, agents, producers, and trade associations and organizations.

3. (a) The Commission may request Member States:

- to supply information,

- to carry out all necessary checks and inspections, particularly on importers, traders and producers,

- to afford the necessary assistance to the officials authorized by the Commission to enable them to make their investigation.

(b) Member States shall take whatever steps are necessary to comply with requests from the Commission. They shall supply the Commission with the information requested and with the results of any inspections, checks or investigations carried out.

(c) Where the information is of general interest or where its circulation has been requested by a Member State, the Commission shall circulate the information to the interested Member States, except where it is confidential, in which case a non-confidential summary shall be circulated.

(d) Officials of the Commission shall be authorized, if the Commission or a Member State so requests, to assist the officials of Member States in carrying out their duties under this paragraph.

4. (a) The complainant, the importers and exporters known to be concerned and the representatives of the exporting Member State may inspect all evidence supplied to the Commission by any party to the investigation (as opposed to internal documents prepared by the authorities of the Community or its Member States), provided that it is relevant to the defence of their interests, not confidential as defined in Article 6 and being used by the Commission in the investigation. Requests to see such evidence shall be made in writing to the Commission specifying the evidence concerned.

(b) Exporters and importers of the product under investigation may request to be told the essential facts and grounds on which it is intended to authorize the injured Member State or States to impose anti-dumping duties.

(c) (i) Requests for information pursuant to (b) shall:

(aa) be made to the Commission in writing;

(bb) specify the particular matters on which information is sought;

(cc) be received, in cases where a recommendation has been issued to the party or parties found to be responsible for dumping, not later than one month after publication of the recommendation.

(ii) the information may be given orally or in writing, as the Commission considers appropriate. Its disclosure shall be without prejudice to any subsequent recommendations or authorizations contemplated by the Commission. Confidential information shall be treated in accordance with Article 6.

(iii) The information shall normally be given no later than 15 days before the Commission authorizes the injured Member State or States to impose anti-dumping duties. Representations made after the information is given shall be taken into consideration only if received within a period to be set by the Commission in each case depending on the urgency, but being not less than 10 days.

5. The Commission may hear interested parties orally. It shall do so if they request such a hearing in writing within the period prescribed in the notice published in the Official Journal of the European Communities, showing that they are an interested party likely to be affected by the outcome of the proceedings and that there are particular reasons why they should be heard orally. 6. Furthermore the Commission shall, on request, give the parties directly concerned an opportunity to meet, so that opposing views may be presented and rebuttal arguments put forward. In providing this opportunity, the Commission shall take account of the need to preserve confidentiality and of the convenience of the parties. There shall be no obligation on any party to attend a meeting and failure to do so shall not be prejudicial to that party's case.

7. Anti-dumping proceedings shall not constitute a bar to customs clearance of the product concerned.

8. A proceeding shall be concluded either when it appears at the end of the investigation that it is not necessary to take measures, or when, as a result of a Commission recommendation, the enterprise undertakes to terminate dumping or by the Commission's authorizing the injured Member State or Member States to impose anti-dumping duties as provided for in Article 10.

Article 6

Confidentiality

1. Information acquired pursuant to this Regulation shall be used only for the purpose of the relevant investigation.

2. (a) The Commission and the Member States, and their respective officials, shall not disclose any information received pursuant to this Regulation for which confidentiality has been requested by the supplier of the information, without specific permission from the supplier.

(b) Requests for confidentiality shall indicate why the information is confidential and shall be accompanied by a non-confidential summary of the information, unless the supplier furnishes good reasons why the information is not susceptible of such summary.

3. Information will ordinarily be considered to be confidential if its disclosure is likely to have a significantly adverse effect upon the supplier or the source of the information.

4. However, if it appears that a request for confidentiality is not warranted and if the supplier is unwilling to make the information public or to authorize its disclosure in generalized or summary form, the information in question may be disregarded.

The information may also be disregarded where such request is warranted, but the supplier is unwilling to provide a non-confidential summary although the information is susceptible of such summary.

5. This Article shall not preclude the disclosure by the Commission of general information, and in particular of the grounds on which recommendations or authorizations under Articles 8 and 9 are based, or of such evidence as is necessary to justify its action in court proceedings. Such disclosure must take into account the legitimate interest of the parties in the preservation of their trade secrets.

Article 7

Closure of proceedings where no protective measures are necessary

1. If it becomes apparent, after consultations of the interested Member States, that no protective measures are necessary, the proceedings shall be closed.

2. The Commission shall announce the closure of proceedings by publishing a notice in the Official Journal of the European Communities summarizing its findings and the gounds on which they are based.

Article 8

Recommendations and undertakings

1. Where the facts indicate that there was dumping during the period covered by the investigation, and injury, the Commission may address to the party or parties who were the originators of the dumping recommendations that dumping be terminated, within the period it lays down, by means of a measure which eliminates the dumping margin or puts an end to the injury resulting therefrom.

2. The party or parties who are the originators of the dumping shall communicate, to the Commission, their undertakings to this effect before expiry of the period laid down.

3. Before addressing its recommendations to the enterprises, the Commission shall consult with the Member States concerned.

4. The Commission may require any party from whom an undertaking has been accepted to provide periodically information relevant to the fulfilment of the undertaking, and to permit verification of pertinent data. Non-compliance with such requirements shall be construed as a violation of the undertakings.

5. Where an undertaking has been withdrawn or the Commission has reason to believe that it has been violated, the Commission may, where the Community interest calls for such action, after consultations of the interested Member States and after having offered the exporter concerned an opportunity to comment, authorize the imposition of anti-dumping duties on the basis of the facts established before acceptance of the undertaking. Article 9

Protective measures

Where the originator or originators of the dumping fail to comply with the recommendations of the Commission or fail to give an undertaking to this end within the period laid down, or fail to comply with such undertaking, the Commission shall authorize the injured Member State or Member States to introduce anti-dumping duties and shall define the conditions and procedures for such duties after consultation of the interested Member States.

Article 10

General provisions on duties

1. Authorizations to impose anti-dumping duties shall state, in particular, the amount and type of duty imposed, the product concerned, the exporting country or country of origin, the name of the supplier, if available, and the grounds on which they are based.

2. The rate of such duties shall not exceed the dumping margin; it should be less if such lesser duty would be adequate to remove the injury.

3. (a) Anti-dumping duties may not be imposed or increased with retroactive effect.

(b) However, where the Commission finds that an undertaking has been violated, anti-dumping duties may be levied on products which are or would have been liable to import duties under Council Directive No 79/623/EEC of 25 June 1979 on the harmonization of provisions laid down by law, regulation or administrative action relating to customs debt (1) from up to 90 days before the date of imposition of the duties, except that such retroactive levying of duties shall not apply to imports entered for home use in the Community of Ten before the violation.

4. Where a product is imported into the Community of Ten or into Spain or Portugal from more than one country, duty shall be levied at an appropriate rate on a non-discriminatory basis on all imports of such products found to be dumped and to be causing injury except those from sources in respect of which undertakings have been accepted.

5. Where the producers in only part of the Community of Ten have been taken to represent an industry, the Commission shall give the exporters concerned an opportunity to offer undertakings pursuant to Article 8 in respect of that part. If an adequate undertaking is not given promptly or is not fulfilled, a duty may be imposed in respect of the injured Member State or States.

6. Except where specifically provided otherwise when the anti-dumping duty is imposed, the rules on the common definition of origin and the relevant common implementing provisions shall apply.

7. Anti-dumping duties shall be collected by the injured Member State or States authorized to take protective measures in the form, at the rate and on the other terms laid down when the duties are imposed, and independently of the customs duties, taxes and other charges normally charged on imports.

Article 11

Review

1. Measures imposing anti-dumping duties and decisions to accept undertakings pursuant to Article 8 shall be subject to review, in whole or in part, where warranted.

Such review may be held either at the request of a Member State or on the initiative of the Commission. A review shall also be held at the request of an interested party who submits evidence of changed circumstances sufficient to warrant such review. Such requests shall be made to the Commission, which shall inform the interested Member States.

2. Where, after consultations of interested Member States, a review is found to be warranted, the proceedings may be reopened in accordance with Article 5 if the circumstances so require. The reopening of proceedings shall not, by itself, have any effect on measures already in operation.

3. In the light of the review, carried out with or without reopening proceedings, the recommendation, undertakings or anti-dumping duties shall, if necessary, be varied or withdrawn in such manner as the Commission shall determine after consulting the interested Member States.

Article 12

1. Subject to paragraph 2, anti-dumping duties and undertakings shall lapse five years after the date on which they took effect or were last varied or confirmed.

2. Anti-dumping duties and undertakings shall also lapse on the expiry of the transitional measures applicable to the product in question pursuant to the Treaty of Accession of Spain and Portugal.

3. At least six months before the expiry of the five-year period referred to in paragraph 1, the Commission shall, after consultation of interested Member States, publish a notice in the Official Journal of the European Communities of the impending expiry of the measures in question and shall inform the Community producers known to be concerned. The notice shall state the period within which interested parties may make written representations and may apply to be heard orally by the Commission in accordance with Article 5 (5).

Where an interested party shows that the expiry of the measure would lead again to injury or threat of injury, the Commission shall carry out a review of the measure. The measure shall remain in effect pending the outcome of the review.

Where anti-dumping duties and undertakings lapse pursuant to this Article, the Commission shall publish a notice to that effect in the Official Journal of the European Communities.

Article 13

Refund

1. Where an importer can show that the duty collected exceeds the actual dumping margin, consideration being given to any application of weighted averages, the excess amount shall be refunded.

2. An application for the refund of duties under paragraph 1 shall be submitted by the importer to the Commission via the Member State in whose territory the products were entered for home use, once the amount of the duties to be levied has been duly determined by the competent authorities.

The Member State shall forward the application to the Commission as soon as possible, with or without an opinion as to its merits.

The Commission after consultations of the interested Member States shall determine whether and to what extent it can comply with the application.

Article 14

Final provisions

This Regulation shall be without prejudice to Community Regulations in the agricultural sector or to Regulations (EEC) No 1059/69 (1), (EEC) No 2730/75 (2) and (EEC) No 2783/75 (3), except that it shall be applied so as to supplement those Regulations and override any of their provisions that preclude the imposition of anti-dumping duties.

Article 15

Entry into force

This Regulation shall enter into force on the day following its publication in the Official Journal of the European Communities.

It shall apply to:

- proceedings initiated after 1 January 1986,

- proceedings initiated before accession in Spain, Portugal or the Community of Ten,

- the review of measures adopted before accession pursuant to Regulation (EEC) No 3017/79 (4), as last amended by Regulations (EEC) No 1580/82 (5) and (EEC) No 2176/84 (6),

- the review of measures decided before accession pursuant to the anti-dumping legislation of the new Member States with regard to the Community of Ten.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels, 14 March 1986.

For the Council

The President

N. SMIT-KROES

(1) OJ No L 179, 17. 7. 1979, p. 31.

(1) OJ No L 141, 12. 6. 1969, p. 1.

(2) OJ No L 281, 1. 11. 1975, p. 20.

(3) OJ No L 282, 1. 11. 1975, p. 104.

(4) OJ No L 339, 31. 12. 1979, p. 1.

(5) OJ No L 178, 22. 6. 1982, p. 9.

(6) OJ No L 201, 30. 7. 1984, p. 1.