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 applies the same methodology as in the investigation which led to the imposition of the initial duty in the course of the refund procedure (Regulation No 2016/1036, Article 11(9)). A different methodology may however be used where the circumstances have changed or where the method of calculation initially used does not comply with Articles 2 and 17 of the Regulation . To obtain reim …

Calculation method

The Commission applies the same methodology as in the investigation which led to the imposition of the initial duty in the course of the refund procedure (Regulation No 2016/1036, Article 11(9)). A different methodology may however be used where the circumstances have changed or where the method of calculation initially used does not comply with Articles 2 and 17 of the Regulation . To obtain reimbursement of an anti-dumping duty, an importer must show that the dumping margin on the basis of which duties were paid has been eliminated or reduced to a level which is below the level of the duty in force. A revised dumping margin is established by making a comparison, for the representative period, between the normal value of the exported products concerned and the export price, in accordance with Article 2 of the basic regulation.

An application made by an importer who directly or indirectly paid definitive duties assumed by it, must in particular contain evidence for a representative period, of normal values and export prices to the Union for the producer or exporter to which the duty applies (Art. 11(8)(3)). The admissibility of the application is also dependent on the cooperation of the importer and the exporting producer. The non-cooperation or insufficient cooperation from the exporting producer implies the rejection of the application since the Commission considers in such a case that the dumping margin established during the initial investigation is the best available evidence and does not have to be decreased .

In the specific case where the importer belongs to the same group as the exporting producer, the Commission uses the methodology of the constructed export price on the basis of the price at which the imported products are first resold to an independent buyer. The anti-dumping regulation only states that the export price constructed for the associated importer is calculated with no deduction for the amount of anti-dumping duties paid when conclusive evidence is provided that the duty is duly reflected in resale prices and the subsequent selling prices in the Union (Art. 11(10)). According to the General Court, there is no cause to consider that the passing on of anti-dumping duties must be carried out on the basis of an assessment conducted in the aggregate, i.e. for the product concerned, and not for each of the PCNs of which it is composed according to the “PCN-by-PCN” method, insofar as Article 11(10) does not set out a method by which to determine whether the anti-dumping duty was duly reflected in the selling price to the first independent buyer in the European Union. The “PCN-by-PCN” method is more consistent with a literal and purposive interpretation of that provision which lays down the exception for non-deduction of the anti-dumping duties from the export price constructed, which is interpreted strictly, and must be preferred where it leads to a stricter assessment of whether the anti-dumping duties have been passed on . In practice, the application for a refund is partly rejected and the importer has no right to full reimbursement of the anti-dumping duties paid unless it has brought to an end the original dumping that gave rise to the imposition of the anti-dumping duties, and passed on the amount of these duties (the so-called double jump or “duty as a cost” rule) . The passing on and elimination must have been brought about through a reduction of the normal value, an increase of selling prices in the Union and/or a reduction in marketing costs in the Union . 

See Case T-221/05 Huvis v Council [2008] ECR II-124*, Summ.pub., LawLex200900001327JBJ, which retains that these exceptions must be interpreted strictly as regards a review procedure.

Commission Notice No 2002/C 127/06, point 3.2.4.

Case T-75/12 Nu Air Polska sp. z o.o., Judgment of 18 November 2015, LawLex201500001471JBJ.

The Commission makes a manifest error of assessment affecting the rate of the revised dumping margin and, consequently, the amount of the anti-dumping duties to be repaid to the applicants, by refusing non-deduction of the anti-dumping duties from the export prices of the PCNs for which the anti-dumping duties had nevertheless been reflected in the resale prices and the subsequent selling prices in the European Union: Case T-73/12  Einhell Germany AG, Hans Einhell Nederlands BV, Einhell France (SAS),  Hans Einhell Österreich GmbH v Commission,  Judgment of 18 November 2015, LawLex201500001473JBJ.

Case T-162/94 NMB and others v Commission [1996] ECR II-427, LawLex200900001273JBJ; See, also, Case C-188/88 NMB v Commission [1992] ECR I-1689, LawLex200900000761JBJ, which considers that the anti-dumping duties must be deduced in constructing the export price for the purposes of reimbursement of the duties to an associated importer.

European Business Law

476. Calculation method

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476. Calculation method

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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