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European Business Law

The benefit conferred during the investigation period results both from the subsidies granted during that period and from previous subsidies which, because their amount may be spread over on a certain period, still have effects during the investigation period. In order to obtain the total amount of countervailable subsidy - numerator - it is therefore required to identify firstly the subsidies to  …

Calculation methods

The benefit conferred during the investigation period results both from the subsidies granted during that period and from previous subsidies which, because their amount may be spread over on a certain period, still have effects during the investigation period. In order to obtain the total amount of countervailable subsidy - numerator - it is therefore required to identify firstly the subsidies to be allocated to the investigation period. In this respect, a distinction must be made depending on the method of allocation of the benefit.

Since the total subsidy is calculated per unit of subsidized product exported to the Union , the calculation is simple if the benefit is itself granted by reference to the quantities produced, exported or transported: the amount of the subsidy is allocated per unit (ton, square meter, etc.) produced, exported or transported. In the event of an export rebate granted by the public authorities on each ton exported, but which changes according to season, an average value of the rebate granted during the investigation period is established. Since this type of benefit is equivalent to a grant, an interest is added in order to take account of the duration of repayment. The duration corresponds to the duration of the investigation period or a shorter duration if the recipient can provide evidence that it has benefited from the total subsidy only for a shorter duration, and has therefore not benefited from the interest for the whole year corresponding to the investigation period . As regards grants that can be made at any time between the first and the last day of the investigation period, instead of adding annual interest to the whole amount, the Commission considers it more appropriate to assume that an average grant would have been received at the mid-point of the investigation period and therefore to add an interest covering a period of six months .

Where the benefit is not granted by reference to the quantities produced, exported or transported, it is necessary to allocate the total subsidy according to a denominator - level of production, sales or exports of the product during the investigation period - in order to obtain an amount per unit . Where the subsidies are recurring, i.e. cyclical or repetitive, with effects felt once they are granted (tax deductions, preferential loans), only those granted during the investigation period are retained for the calculation. Where the subsidies are linked to the acquisition of fixed assets, the benefit is granted for the period of normal depreciation of such assets. In this case, subsidies may be recurring (exemption from import duties on machinery) or non-recurring (grant for the purchase of machinery). The amount of the subsidy is then allocated over that duration, which most often corresponds to the normal period used for the depreciation of assets in the industry concerned . If such a subsidy dates back several years before the investigation period for the acquisition of fixed assets still being depreciated during the investigation period, part of the subsidy is allocated to the investigation period .

In this last case, the traditional assumption is where the exporter has been applied a reduced or zero rate of duty when importing capital goods provided that these goods are used to produce a certain amount of export goods during a certain period. This subsidy is contingent upon export performance. In the event that no purchase of capital goods is noted during the investigation period but the exporter still benefits from duty exemptions for previously purchased capital goods that have not been fully amortized, the subsidy amount is calculated on the basis of the unpaid customs duties spread across a period reflecting the actual depreciation period of such capital goods. This amount is then adjusted by adding interest during the investigation period . The value of the total subsidy contingent upon export performance is then allocated over the export turnover  achieved during the investigation period . The difficulty for the undertaking involved in an anti-subsidy investigation will then consist in providing very old detailed information on any subsidies received in the previous years or otherwise it may risk being considered as non-cooperating.

Lastly, some duly established elements may be deduced from the total subsidy obtained, such as application fee, or other costs necessarily incurred in order to qualify for, or to obtain, the subsidy  and export taxes, duties or other charges levied on the export of the product to the Union specifically intended to offset the subsidy . On the other hand, costs of recourse to external consultants are not deductible since the benefit can be obtained without the need to have recourse to consultants .

See Commission Guidelines No 98/C 394/04 of 17 December 1998, for the calculation of the amount of subsidy in countervailing duty investigations, OJ C 394 of 17 December 1998, 6, example 1.

Regulation No 2016/1037, Article 7(1)(b).

Commission Regulation No 1556/98 of 17 July 1998, imports of stainless steel bars (India), LawLex200900002859JBJ.

See, for example, Commission Regulation No 1556/98 of 17 July 1998, imports of stainless steel bars (India), LawLex200900002859JBJ.

See, for example, Commission Regulation No 123/2000 of 20 January 2000, imports of polyester staple fibres (Australia, Taiwan, Korea, Thailand), LawLex200900002897JBJ, which considers that the amount of a non-recurring subsidy in the form of grant which can be linked to the acquisition of fixed assets, must be allocated over the normal period used in the industry involved for the depreciation of assets, i.e., in this case, the depreciation period used by the exporting producer in question who is the sole producer of the product concerned.

See Commission Guidelines No 98/C 394/04 of 17 December 1998, for the calculation of the amount of subsidy in countervailing duty investigations, OJ C 394 of 17 December 1998, 6, examples 6 and 7.

Council Regulation (EU) No 193/2007 of 22 February 2007, imports of polyethylene terephthalate (India), LawLex200900002489JBJ; See, also, Council Regulation (EU) No 1599/1999 of 12 July 1999, imports of stainless steel wires (India, Korea), LawLex200900002504JBJ, which states that where several cooperating exporters have benefited from the measure during the investigation period, the amount of the subsidy is spread across an average depreciation period. The Council has retained an average period of twelve years, instead of the period of twenty-one years disclosed by one of the exporters; See, also, Commission Regulation No 708/2003 of 23 April 2003, imports of certain electronic microcircuits known as DRAMs (Korea), LawLex200900002754JBJ, which considers that the most appropriate period for allocating the amount of the subsidy extends beyond the investigation period and is the useful life of the machinery and equipment, considered to be five years, in accordance with the financial accounts of the company and the usual practice in the industry concerned, where the main costs of production are occasioned by the requirement to have assets.

Council Regulation (EU) No 1480/2003 of 11 August 2003, imports of certain electronic microcircuits known as DRAMs (Korea), LawLex200900002542JBJ, which states that the amount of an export subsidy must be allocated over the export turnover instead of the total turnover.

Commission Regulation No 1092/2000 of 24 May 2000, imports of styrene-butadiene-styrene thermoplastic rubber (Taiwan), LawLex200900002871JBJ; See, also, Commission Guidelines No 98/C 394/04, aforementioned, F, b, ii) which specifiy that for subsidies other than export subsidies, total sales (domestic plus export) must be used as denominator since such subsidies benefit both domestic and export sales.

Regulation No 2016/1037, Article 7(1)(a).

European Business Law

495. Calculation methods

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495. Calculation methods

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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