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European Business Law

Definitive anti-dumping duties apply only to imports of products which enter for free circulation after the date on which they are imposed . Anti-dumping duties are not a penalty relating to earlier behavior but a protective and preventive measure against dumping practices; they cannot, as a general rule, be adopted or increased with retroactive effect . Article 10 of Regulation No 2016/1036 estab …

Retroactivity

Definitive anti-dumping duties apply only to imports of products which enter for free circulation after the date on which they are imposed . Anti-dumping duties are not a penalty relating to earlier behavior but a protective and preventive measure against dumping practices; they cannot, as a general rule, be adopted or increased with retroactive effect . Article 10 of Regulation No 2016/1036 establishes the principle of non-retroactivity and sets out exceptions. A definitive duty may be levied on products which were entered for consumption no more than 90 days prior to the date of application of provisional measures but not prior to the initiation of the investigation, provided that these imports have been registered (Art. 10(4)) . In case of withdrawal or breach of an undertaking, a definitive duty is levied on goods entered for free circulation no more than 90 days before the application of provisional measures, provided that these imports have been registered (Art. 10(5)) . In case of withdrawal by an exporter of its undertakings almost concurrently with the adoption by the Commission of its final decision, definitive anti-dumping duties may be imposed against it with retroactive effect . Lastly, in case of acceptance of undertakings, a provisional anti-dumping duty on imports made before the date of the undertakings is collected at the rates that would have applied had the undertakings not been accepted .

Where the facts as finally established show that there is dumping and injury, the Commission decides, irrespective of whether a definitive anti-dumping duty is to be imposed, on the final collection or not of the provisional duty previously imposed (Art. 10(2)). If the provisional duties are higher than the envisaged definitive duties, those definitive duties are recalculated. Where the final determination of that calculation is negative, the provisional duties will not be confirmed . If the definitive duties are higher than the provisional duties, the difference is not collected (Art. 10(3)). The non-collection of provisional duties may, in particular, be decided given changes in the form of a duty , the clarification of the product definition retained by the Commission which suggests the exclusion of certain types of products from the scope of application of the measures  or the uncertainty which has arisen as to whether the deadline set out for the imposition of provisional duties was met . Moreover, the Commission must release the amount of the provisional duties where the final investigation could not be completed within the time-limits . 

The applicable rules on non-retroactivity are not capable of preventing the Commission from adopting a regulation imposing or re-imposing anti-dumping duties or from opening or resuming the proceeding prior to such adoption solely on the ground that the anti-dumping duties imposed by the definitive regulation and the prolonging regulation had expired on the date of adoption of the regulation at issue, provided that such duties are re-imposed during their initial application period, and therefore, in the present case, with regard to goods put into free circulation after the entry into force of the definitive regulation and the prolonging regulation: Case C-256/16 Deichmann SE, Judgment of 16 March 2018, LawLex201800000438JBJ.

Case C-458/98 P Industrie des poudres sphériques v Council [2000] ECR I-8147, LawLex200700001661JBJ.

Council Regulation (EC) No 541/91 of 4 March 1991, imports of barium chloride (China), LawLex200900002426JBJ; No 173/2000 of 24 January 2000, imports of certain large aluminium electrolytic capacitors (Japan, Korea, Taiwan), LawLex200900002521JBJ, confirmed by Case C-422/02 P Europe Chemi-Con (Deutschland) v Council [2005] ECR I-791, LawLex200900000780JBJ.

Case T-749/16 Stemcor London Ltd, established in London (United Kingdom), Judgment of 8 May 2019, LawLex201900000597JBJ: Article 10(4)(c) of Regulation No 2016/1036 - which provides for a definitive anti-dumping duty to be levied on products which were entered for consumption no more than 90 days prior to the date of application of provisional measures but not prior to the initiation of the investigation, provided, inter alia, that there is, for the product in question, a history of dumping over an extended period, or 'the importer was aware of, or should have been aware of, the dumping as regards the extent of the dumping and the injury alleged or found' - finding that the awareness of importers must be established only in respect of "actual" and not only the "alleged" dumping, without undermining the purpose and general scheme of the regulation, insofar as the retroactive application of definitive anti-dumping duties is to prevent the remedial effect of the definitive measures from being undermined and those measures thereby being rendered meaningless by forcing the importers that stockpiled products after customs clearance to sell the products that were imported during the registration period at non-injurious prices; in addition Article 10(4)(d) of Regulation No 2016/1036 which requires, for the purpose of the retroactive application of a definitive anti-dumping duty, that "in addition to the level of imports which caused injury during the investigation period, there is a further substantial rise in imports" which, "in the light of its timing" and volume and other circumstances, is likely to seriously undermine the remedial effect of the definitive anti-dumping duty to be applied, does not define a specific period in which to determine the existence of a 'further substantial rise in imports', but merely refers to its 'timing', must be interpreted for that purpose in the sense that the level of imports which took place during the investigation period should be compared with the level of imports made during the period following that investigation period, without that provision in any way limiting the period to be taken into consideration to that of the registration of imports.

Commission Regulation (EC) No 452/2002 of 13 March 2002, imports of farmed Atlantic salmon (Norway), LawLex200900002805JBJ, on the imposition of anti-dumping and countervailing duties retroactively to the date of the breach.

Commission Regulation (EC) No 92/96 of 22 January 1996, imports of ferro-silico- manganese (Russia, Ukraine, Brazil, South Africa), LawLex200900002404JBJ; No 452/2002 of 13 March 2002, imports of farmed Atlantic salmon (Norway), LawLex200900002805JBJ, which considers that where information and the findings of an investigation conducted by national authorities indicate the existence of a possible violation of an exporter's undertakings and the Commission's preliminary investigation also suggests that these price undertakings are not being fully respected, imports of the products concerned may be subject to registration in the event of a withdrawal of that undertaking and the imposition of anti-dumping and countervailing duties retroactively to the date of the breach; No 2698/95 of 22 November 1995, imports of ferro-silico-manganese (South Africa), LawLex200900002767JBJ, which considers that in case of withdrawal by an exporting producer of its undertakings immediately prior to the adoption of a regulation which provides an exemption to its benefit from the definitive anti-dumping duty imposed with respect to the other exporting producers, its imports may be subject to registration in the event that a definitive anti-dumping duty would be instituted against it, which would then be levied with retroactive effect on the effective date of this regulation.

Council Regulation (EU) No 1931/97 of 22 September 1997, imports of unwrought, unalloyed zinc (Poland, Russia), LawLex200900002443JBJ.

Council Regulation (EU) No 2852/2000 of 22 December 2000, imports of polyester staple fibres (India, Korea), LawLex200900002599JBJ.

Council Regulation (EU) No 1006/96 of 3 June 1996, imports of powdered activated carbon (China), LawLex200900002410JBJ, which considers that a specific duty is more appropriate than an ad valorem duty or a variable duty to diminish the risk of absorption; See, also, Regulation (EU) 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, which considers that taking into account the change in the form and nature of the definitive measures, as compared with the provisional ad valorem duties imposed and the existing undertakings, the collection of provisional anti-dumping duties is inappropriate.

Commission Decision No 2730/2000 of 14 December 2000, imports of coke of coal (China), LawLex200900002847JBJ.

Council Regulation (EU) No 2398/97 of 28 November 1997, imports of cotton-type bed linen (Egypt, India, Pakistan), LawLex200900002459JBJ.

European Business Law

464. Retroactivity

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464. Retroactivity

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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