European Business Law, the fourth volume in our series, shows how the European authorities simultaneously abolish all restrictions on access to and exercise of economic activities and support the growth of domestic markets, through the harmonization the internal legislation or the enactment of genuinely unified regulations.

European Business Law

The Commission establishes provisional or final findings, affirmative or negative, on the basis of the facts available where the undertaking refuses to cooperate, significantly impedes the investigation or supplies false or misleading information (Regulation No 2016/1036, Article 18(1)) . The non-cooperation or the partial cooperation places the interested party in a situation less favorable “than …

Effects of non-cooperation

The Commission establishes provisional or final findings, affirmative or negative, on the basis of the facts available where the undertaking refuses to cooperate, significantly impedes the investigation or supplies false or misleading information (Regulation No 2016/1036, Article 18(1)) . The non-cooperation or the partial cooperation places the interested party in a situation less favorable “than if it had cooperated” (Regulation No 2016/1036, Article 18(6)). In effect, in such a case, the Commission uses the other data available to present its findings , from a method the objective of which consists in not rewarding non-cooperation and in avoiding circumvention . Account is not taken of provided information where the nature and extent of certain false and misleading information that undertakings have provided cast doubt on the integrity of all the data submitted by them .

Findings may be made on the basis of Eurostat statistics , CN codes of a product not concerned by the proceedings , information from industry publications and press articles  or in accounting records , or information contained in the complaint . Where the findings relating, in particular, to normal value, are based on information supplied in the complaint, the Commission must, where practicable and with due regard to the time-limits of the investigation, check the validity of the information by reference to information from other independent sources which may be available, such as published price lists, official import statistics and customs returns, or information obtained from other interested parties during the investigation , or even relevant data pertaining to the world market or other representative markets (Regulation No 2016/1036, Article 18(5)). The verification may be made through internet searches of data from an independent importer and data from Eurostat . For the calculation of export prices, where no information is available, the Commission may retain the applicants' lowest prices , the average import price reported by Eurostat  or the export trade statistics of the exporting country where they are more reliable for the products concerned than Eurostat data .

Even though the possibility given to the Commission to fix anti-dumping duties on the basis of the available information in the event of failure to give information is not aimed at penalizing traders for their failure to participate in an anti-dumping investigation , they must not take advantage thereof. Thus, in order to avoid giving bonus for non-cooperation, the Commission applies the highest duty to non-cooperating undertakings . The highest duty is established on the basis of a residual dumping margin set at the level of the highest dumping margin established for a cooperating company if the overall level of cooperation in that country is high, and at a level higher than the highest dumping margin established for a cooperating company if the overall level of cooperation in that country is low .

Lastly, the effect of non-cooperation is to exclude European producers from the definition of Union industry .

Council Regulation (EU) No 993/93 of 26 April 1993, imports of certain electronic weighing scales originating in Japan, LawLex200900002451JBJ, on the false and misleading character of significant corrections to replies to questionnaire which impeded the investigation process where they were presented during the verification visit and had a confusing and conflicting nature which precluded an identification and verification of actual costs for purpose of calculating normal value; Council Regulation (EU) No 950/2001 of 14 May 2001, imports of certain aluminum foil (China, Russia), LawLex200900002608JBJ, stating that the conditions of use of Article 18 where the company invited to provide information during the on-spot investigation, then through a supplementary questionnaire, refused to provide them on the grounds of the allegedly large amount of work involved in preparing the information, and the difficulties encountered to establish one of the major costs elements and assess its assets; Council Regulation (EU) No 954/2006 of 27 June 2006, imports of certain seamless pipes and tubes, of iron or steel originating in Croatia, LawLex200900002492JBJ, on the deficient and inconsistent information disclosed.

Commission Regulation (EC) No 2318/95 of 27 September 1995, on imports of certain tube or pipe fittings, of iron or steel (China, Croatia, Thailand, the Slovak Republic, Taiwan), LawLex200900002762JBJ; No 1778/97 of 12 September 1997, imports of ferro-silico-manganese (China), LawLex200900002809JBJ; No 1497/2001 of 20 July 2001, imports of urea (Belarus, Bulgaria, Croatia, Estonia, Libya, Lithuania, Rumania, Ukraine, Egypt, Poland), LawLex200900002834JBJ; Council Regulation (EU) No 397/2004 of 2 March 2004, imports of cotton-type bed linen originating in Pakistan, LawLex200900002525JBJ.

Council Regulation (EU) No 976/2002 of 4 June 2002, imports of certain ring binder mechanisms (RBM) (Indonesia, India), LawLex200900002500JBJ.

Case T-155/94 Climax Paper Converters v Council [1996] ECR II-873, LawLex200900001262JBJ.

Council Regulation (EU) 901/2001 of 7 May 2001, imports of urea (Russia), LawLex200900002606JBJ.

Council Regulation (EU) No 964/2003 of 2 June 2003, imports of certain tube or pipe-fittings, of iron or steel (China, Thailand, Taiwan), LawLex200900002549JBJ, stating, with respect to non-cooperating exporting producers, that the export price is determined on the basis of the exporting country's export trade statistics where they are more reliable for the products concerned than Eurostat data, which, by referring to ex codes, do not exclusively include the products concerned.

Case T-7/99 Medici Grimm v Council [2000] ECR II-2671, LawLex200800000095JBJ.

Council Regulation (EU) No 1251/91 of 13 May 1991, imports of audio tapes in cassettes (Japan, Korea, Hong-Kong), LawLex200900002427JBJ.

Commission Regulation (EC) No 124/2000 of 20 January 2000, imports of polyester staple fibres (Australia, Indonesia, Thailand), LawLex200900002895JBJ.

Commission Regulation (EC) No 1645/95 of 5 July 1995, imports of microwave ovens (China, Korea, Thailand, Malaysia), LawLex200900002748JBJ.

Commission Regulation (EC) No 1629/2000 of 25 July 2000, imports of ammonium nitrate (Poland, Ukraine), LawLex200900002856JBJ.

Council Regulation (EU) No 1763/2002 of 30 September 2002, imports of sacks and bags made of polyethylene or polypropylene (India), LawLex200900002560JBJ.

Council Regulation (EU) No 1697/2002 of 23 September 2002, imports of certain welded tubes and pipes, of iron or non-alloy steel (the Czech Republic, Poland, Thailand, Turkey, Ukraine), LawLex200900002562JBJ, regarding the residual margin of injury; No 901/2001 of 7 May 2001, imports of urea (Russia), LawLex200900002606JBJ (export price determined on the basis of the average import price reported by Eurostat); No 469/2001 of 6 March 2001, imports of certain electronic weighing scales (Singapore), LawLex200900002604JBJ (use of information provided by the only exporting producer having provided data given the inappropriate character of the Eurostat data which give no indication on the models concerned); Commission Regulation (EC) No 837/2000 of 19 April 2000, imports of certain cathode-ray color-television picture tubes (India, Malaysia, China, Korea), LawLex200900002879JBJ (use of the Eurostat statistics to assess all imports of the product concerned in the Union).

Council Regulation (EU) No 2463/93 of 1 September 1993, imports of fluorspar (China), LawLex200900002733JBJ.

Commission Decision No 2001/230 of 21 February 2001, imports of ferro-silicon originating in Brazil, LawLex201100000528JBJ.

Council Regulation (EU) No 397/1999 of 22 February 1999, imports of bicycles (Taiwan), LawLex200700001665JBJ.

Case T-161/94 Sinochem Heilongjiang v Council [1996] ECR II-695, LawLex200900001272JBJ, considering that the Commission may exclusively base itself on the information submitted by the applicant rather than on the reply to the questionnaire of the only cooperating exporter where it, along, not sufficiently representative and the possibility of making dual provision: one anti-dumping duty for the applicant and another, higher, anti-dumping duty for all other exporters, cannot be contemplated owing to the risk of circumvention; Commission Regulation (EC) No 967/2000 of 8 May 2000, imports of hairbrushes (China, Korea, Taiwan, Thailand, Hong-Kong), LawLex200900002873JBJ, stating that normal value and export price may be determined on the basis of the data contained in the complaint; Council Regulation (EU) No 92/2002 of 17 January 2002, imposed on imports of urea originating in Belarus, Bulgaria, Croatia, Estonia, Libya, Lithuania, Romania and the Ukraine, LawLex200900002602JBJ, on the possibility to establish normal value on the basis of information contained in the complaint where the producer failed consistently to submit essential information in its reply to the questionnaire and never satisfactorily explained inconsistencies and contradictions revealed during the verification visit, despite of the fact that these were expressly pointed out by the Commission in deficiency letters and on-spot.

See Council Regulation (EU) No 976/2002 of 4 June 2002, imports of certain ring binder mechanisms (RBM) (Indonesia, India), LawLex200900002500JBJ, stating that where the exporting producer failed to provide data for the establishment of normal value, information supplied in the complaint may be cross-checked through Internet searches, examination of data from an independent importer and analysis of data from Eurostat; Case 53/83 Allied Corporation v Council [1985] ECR 1621, LawLex200900002215JBJ, on the possibility to establish normal value on the basis of prices which firms undertake to observe then revoked which may be considered to be closest to economic reality; Commission Regulation No 510/2003 of 20 March 2003, imports of paracresol (China), LawLex200900002755JBJ, which retains for the calculation of normal value, where there is no cooperation, the sales of a producer of a third one where they are representative.

European Business Law

442. Effects of non-cooperation

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

442. Effects of non-cooperation

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise