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

Identifying circumvention suggests that four cumulative conditions have been met:
- a change in the pattern of trade either between third countries and the Union  or between individual companies in the country subject to measures and the Union,
- insufficient due cause or economic justification other than the imposition of the duty,
- evidence of injury or that the remedial effects of the duty are …

Conditions for prohibition

Identifying circumvention suggests that four cumulative conditions have been met:

- a change in the pattern of trade either between third countries and the Union  or between individual companies in the country subject to measures and the Union,

- insufficient due cause or economic justification other than the imposition of the duty,

- evidence of injury or that the remedial effects of the duty are being undermined in terms of the prices and/or quantities of the like products,

- evidence of dumping in relation to the normal values previously established for the like products (Regulation No 2016/1036, Article 13(1)).

Simultaneous increase in imports of substitution products and initiation of the investigation procedure , significant increase in exports of exporting producers from third countries not concerned after the imposition of anti-dumping measures , non-conversion of the product on other markets in the Union , stability of the European consumption despite the change in the product , use of marketing methods which are identical for the products concerned and the altered products (packaging, brochures, advertising, distribution channels) , change in a former product whereas it had never been modified before save for complying with legal requirements , finding of extra-costs in terms of labor and packaging generated by changes in the new product  or yet important additional logistical constraints due to its conversion , are indications of a change in the pattern of trade based on a circumvention purpose.

In order to determine the injury to the Union industry, the Commission assesses to what extent the expected remedial effect of the anti-dumping duties on prices  and/or on quantities  of imports is compromised. The same method as that applied in the original investigation is generally used when comparing the export prices of the products concerned and the other products the imports of which have increased after the imposition of duties . The large scale undermining of the remedial effect of the measures in terms of quantities associated with the extremely low degree of cooperation of exporters from a non-concerned third country is used, moreover, to identify circumvention without it being necessary to further investigate undermining in terms of prices .

Lastly, in order to establish evidence of dumping with respect to import then conversion of a substitution product , the Commission must rely on the original normal values which may be re-examined, and not on a new dumping margin . A weighted average normal value per ton may however be established as part of an anti-circumvention investigation although the normal value used in the original investigation was determined per type of fitting, where the Eurostat data, used because of the absence of cooperation of the exporting producers of the substitution product, do not provide export price data per type of fitting .

A change in the pattern of trade between a third country and the EU just after the imposition of the anti-dumping duty on imports from another third country, making it possible to establish a link based in logic and reason between the considerable increase in imports from the first and the imposition of the anti-dumping duty on the second, is evidence of the existence of the circumvention: Case C-21/13 Simon, Evers & Co, Judgment of 4 September 2014, LawLex201400000843JBJ.

Council Regulation (EU) No 192/1999 of 25 January 1999, imports of gas-fuelled, non-refillable pocket flint lighters (China, Taiwan, Hong Kong, Macao), LawLex200900002498JBJ; See also Council Regulation (EU) No 71/97 of 10 January 1997, imports of bicycles and certain bicycle parts (China), LawLex200900002414JBJ, regarding a decrease in the imports to the Union of the products concerned from the country concerned by more than 98%, concomitant with an increase by more than 139% of imports from that same countries of parts and accessories used in assembling the product concerned; Council Regulation (EU) No 763/2000 of 10 April 2000, imports of certain tube and pipe fittings, of iron or steel (China, Taiwan), LawLex200900002532JBJ, concerning an increase by 300% of exports to the Union at the same time as the imposition of measures.

Council Regulation (EU) No 71/97 of 10 January 1997, imports of bicycles and certain bicycle parts (China), LawLex200900002414JBJ, which considers that the undermining of the remedial effects in terms of sales volume is a direct consequence of the fact that the imported product concerned in the original investigation period has to a substantial extent been replaced, in terms of quantities, by main parts of the same products imported by assembly operations to the Union; Council Regulation (EU) No 2513/97 of 15 December 1997, imports of polyester filament tow (Belarus), LawLex200900002461JBJ, which considers that the almost entire substitution, at the time of the imposition of the duties, of the products concerned for other products imported and converted in the Union, shows that the remedial effects of the anti-dumping duties have been compromised in terms of quantity; No 1023/2003 of 13 June 2003, imports of certain malleable cast iron tube or pipe fittings (Brazil, Argentina), LawLex200900002546JBJ, which considers that the significant change in the pattern of trade after the imposition of measures, characterized by a substitution of exports of products concerned - reduced from 4,518 tons to 15 tons - for exports from a third State of like products, compromises the remedial effects of the measures in terms of quantity imported on the market of the Union.

Council Regulation (EU) No 71/97 of 10 January 1997, imports of bicycles and certain bicycle parts (China), LawLex200900002414JBJ.

Council Regulation (EU) No 763/2000 of 10 April 2000, imports of certain tube and pipe fittings, of iron or steel (China, Taiwan), LawLex200900002532JBJ.

Council Regulation (EU) No 2513/97 of 15 December 1997, imports of polyester filament tow (Belarus), LawLex200900002461JBJ, which considers that evidence of dumping with respect to the import then conversion of a substitution product in the Union implies to use the delivered duty unpaid purchase prices charged to importers as a point of departure, adding the conversion cost in the Union, deducing the freight/handling costs and credit costs, then deducing the freight and handling cost from the exporting country to the European border, as well as the respective mark-up of intermediary trading houses.

Council Regulation (EU) No 163/2002 of 28 January 2002, imports of glyphosate (China, Malaysia, Taiwan), LawLex200900002600JBJ.

Council Regulation (EU) No 163/2002 of 28 January 2002, imports of glyphosate (China, Malaysia, Taiwan), LawLex200900002600JBJ; See, also, Council Regulation (EU) No 1023/2003 of 13 June 2003, imports of certain malleable cast iron tube or pipe fittings (Brazil, Argentina), LawLex200900002546JBJ, which considers that, after the imposition of anti-dumping measures, a significant increase in exports to the Union of exporting producers from countries not concerned, is sufficient to establish a change in the pattern of trade.

Council Regulation (EU) No 2513/97 of 15 December 1997, imports of polyester filament tow (Belarus), LawLex200900002461JBJ, which states that it is not required that the substitution is found to have been made on an identical or similar volume in order to establish a change.

Council Regulation (EU) No 192/1999 of 25 January 1999, imports of gas-fuelled, non-refillable pocket flint lighters (China, Taiwan, Hong Kong, Macao), LawLex200900002498JBJ.

Council Regulation (EU) No 2513/97 of 15 December 1997, imports of polyester filament tow (Belarus), LawLex200900002461JBJ.

Council Regulation (EU) No 2513/97 of 15 December 1997, imports of polyester filament tow (Belarus), LawLex200900002461JBJ, which finds that the remedial effects of the duties are undermined in terms of price where the average sales price of the converted products has undercut the 'undumped' export price by 19.45%; No 1023/2003 of 13 June 2003, imports of certain malleable cast iron tube or pipe fittings (Brazil, Argentina), LawLex200900002546JBJ, which finds that the remedial effects are undermined in terms of prices where adjusted export prices are around 5% below the export prices of the products concerned determined in the original investigation, thus assuming that they are below the injury elimination level as established; Commission Regulation (EC) No 275/2004 of 17 February 2004, imports of steel ropes and cables (China, Morocco), LawLex200900002631JBJ, which considers that the transshipment of the products concerned in a non-concerned third country before being exported to the Union compromises the remedial effects of the anti-dumping duties in terms of price where sufficient evidence certifies that this increase in imports is made at prices well below the non-injurious price established in the investigation that led to the existing measures.

European Business Law

480. Conditions for prohibition

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

480. Conditions for prohibition

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

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise