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European Business Law

The Commission accepts the undertakings only where it is convinced that they eliminate the injurious effect of the dumping (Regulation No 2016/1036, Article 8(1)). However, according to the General Court, Article 8 does not require the Commission to conduct systematic monitoring of the injurious effects of the dumping, where the Commission accepts satisfactory voluntary undertaking offers submitte …

Elimination of the injurious effect

The Commission accepts the undertakings only where it is convinced that they eliminate the injurious effect of the dumping (Regulation No 2016/1036, Article 8(1)). However, according to the General Court, Article 8 does not require the Commission to conduct systematic monitoring of the injurious effects of the dumping, where the Commission accepts satisfactory voluntary undertaking offers submitted by exporters to revise their prices or to cease exports at dumped prices . Undertakings mainly relate to prices of which the increase cannot be higher than necessary to eliminate the margin of dumping or less than such margin if such increase is adequate to remove the injury to the Union industry . Undertakings may take the form of a minimum price covering imports up to an agreed volume threshold, with imports over and above that threshold being subject to an ad valorem duty , provided that the market structure or the characteristics of the product do not make them inappropriate . 

By contrast, by giving the companies a choice in deciding whether to export or not, undertakings cannot thus give them the option of exporting higher-priced products under the undertakings while lower-priced products bear the duty . The proposed minimum price cannot be 30% below the target price necessary for the Union producer to achieve a reasonable profit . Purely quantitative undertakings which, without any price reference, limit the volume of products concerned exported to the Union, are also refused in practice . An undertaking relating to a fixed price is not suitable where the product concerned is a commodity product with a considerable volatility in prices even in the very short term, which is due to the variation in prices of raw materials and linked to currency exchange rates, which would require a monthly revision of prices .

The acceptable character of the undertakings is defined by the Commission as part of its discretionary power. Thus, to reject an undertaking, they may base themselves on past experience acquired in the sector concerned if that experience has shown that undertakings do not constitute a satisfactory solution to the problems caused by dumping practices .

In order to safeguard the effectiveness of the undertakings and to avoid circumvention of the anti-dumping measures, a duty may be imposed on other imports of the products concerned even if the export prices of producers are, according to their undertakings, at a level where dumping is eliminated and sales at prices below their costs of production are prevented .

Lastly, when examining the undertakings, the Commission must not only make sure that it can remove the injury suffered by the Union industry, but must also make sure that exporter may comply with them. The breach of a prior undertaking is a non-negligible indication in this respect. In principle, the Commission does not accept a second undertaking offered by a company which has violated a previous undertaking . At its discretion, the Commission may however accept the new undertaking where the possibilities of supervision existing in the State concerned are clearly reinforced  or where changes have occurred in the management of the company. In effect, the breach of a first undertaking may result from a lack of internal coordination and the absence of staff capable of managing the obligations taken out. A structural change in the company, with a more competent accounting staff and an efficient IT system capable of implementing the software required for the production of quarterly sales reports to the Commission, may, in such a case, reassure it on the compliance with the undertakings .

Case T-783/14 SolarWorld AG, Judgment of 16 February, LawLex201700000338JBJ.

See Case 294/86 Technointorg v Commission and Council [1988] ECR 6077, LawLex200900002333JBJ, which refuses an undertaking where the price increases offered are far less than those needed to eliminate injury and are to take effect over several years; Council Regulation EU No 733/1999 of 30 March 1999, imports of calcium metal (Russia, China), LawLex200900002502JBJ, which considers that the undertaking offered is not acceptable where the proposed minimum price is 30% below the target price necessary for the Union producer to achieve a reasonable profit.

Case T-97/95 Sinochem v Council [1998] ECR II-85, LawLex200900001353JBJ; Council Regulation (EU) No 95/95 of 16 January 1995, imports of furfuraldehyde (China), LawLex200900002389JBJ; No 81/96 of 19 January 1996, imports of monosodium glutamate (Indonesia, Korea, Taiwan, Thailand), LawLex200900002403JBJ.

Commission Decision No 83/649 of 19 December 1983, imports of hardboard (Sweden), LawLex201100000559JBJ.

Commission Decision No 2002/157 of 5 February 2002, imports of farmed Atlantic salmon importations (Norway), LawLex201100000541JBJ, as regards a partial interim review.

See, inter alia, Council Regulation (EU) No 1531/2002 of 14 August 2002, imports of color television receivers (China, Korea, Malaysia, Thailand, Singapore), LawLex200900002563JBJ; No 190/2000 of 24 January 2000, imports of certain seamless pipes and tubes of iron or non-alloy steel (Russia), LawLex200900002528JBJ; No 2320/97 of 17 November 1997, imports of certain seamless pipes and tubes of iron or non-alloy steel (Hungary, Poland, Russia, the Czech Republic, Rumania and the Slovak Republic), LawLex200900002457JBJ; Commission Decision No 2000/137 of 17 February 2000, imports of certain seamless pipes and tubes of iron or non-alloy steel (Croatia, Ukraine), LawLex201100000522JBJ.

Council Regulation (EU) No 1965/98 of 9 September 1998, imports of polysulphide polymers (United States of America), LawLex200900002483JBJ, for a duopolistic market.

Council Regulation (EU) No 603/1999 of 15 March 1999, imports of polypropylene binder or baler twine (Poland, the Czech Republic, Hungary), LawLex200900002501JBJ.

Council Regulation EU No 733/1999 of 30 March 1999, imports of calcium metal (Russia, China), LawLex200900002502JBJ.

Case T-97/95 Sinochem v Council [1998] ECR II-85, LawLex200900001353JBJ, as regards an undertaking the acceptance of which would result in a high anti-dumping duty being applied to all other imports from the same country and the applicant regaining the monopoly in exports to the Union; Commission Regulation (EC) No 1629/2000 of 25 July 2000, imports of ammonium nitrate (Poland, Ukraine), LawLex200900002856JBJ, as regards an undertaking which would result in exempting a substantial volume of imports from the provisional measures; Council Regulation (EU) No 1786/97 of 15 September 1997, imports of silicon carbide (Ukraine), LawLex200900002441JBJ, as regards a quantitative undertaking which consists of a duty-free quota set at a level equivalent to a market share significantly higher than that held by the exporter concerned in the years prior to the investigation; Compare, as regards a non-purely quantitative undertaking: Commission Decision No 2002/683 of 29 July 2002, imports of color television receivers (Malaysia, China, Korea, Singapore, Thailand), LawLex201100000543JBJ, which considers that a minimum price undertaking which provides for quantitative ceilings in defined periods for sales to the Union of the product concerned and the levy of the anti-dumping duty in force once these ceilings are reached, is acceptable.

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; Commission Regulation (EC) No 1251/2003 of 14 July 2003, imports of hollow sections (Turkey), LawLex200900002651JBJ.

Case 240/84 Toyo v Council [1987] ECR 1809, LawLex200900001716JBJ; Case 255/84 Nachi Fujikoshi v Council [1987] ECR 1861, LawLex200900001771JBJ and 256/84 Koyo Seiko v Council [1987] ECR 1899, LawLex200900002295JBJ.

Council Regulation (EU) No 611/93 of 15 March 1993, imports into the Community of certain electronic microcircuits known as DRAMs (Korea), LawLex200900002446JBJ; No 584/96 of 11 March 1996, imports of certain tube or pipe fittings, of iron or steel (China, Croatia, Thailand), LawLex200900002406JBJ.

European Business Law

455. Elimination of the injurious effect

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455. Elimination of the injurious effect

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise