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

An appropriate market economy third country must be selected in a not unreasonable manner “due account being taken of any reliable information made available at the time of selection”. A market economy third country which is subject to the same investigation may be retained to take account of time-limits (Regulation No 2016/1036, Article 2(7)(a)). 
According to the Commission , a market economy th …

Choice of reference country

An appropriate market economy third country must be selected in a not unreasonable manner “due account being taken of any reliable information made available at the time of selection”. A market economy third country which is subject to the same investigation may be retained to take account of time-limits (Regulation No 2016/1036, Article 2(7)(a)). 

According to the Commission , a market economy third country is an appropriate analogue country, where the domestic prices are governed by market forces , the market accounts for two producers being in competition  and having both cooperated, imports from third countries are significant , certain factors show that the manufacturing techniques and processes are quite similar and highly cost effective , and the selected producer has very good access to the main raw materials used in the manufacturing process . The size of the third country market is irrelevant: it is sufficient that the minimum threshold of 5% of the sales volume in the Union in relation to the exports in question is reached . 

The products must fall within the same range level .  The representative third country must present a level of economic development similar to that of the exporting country, taking into account gross national income, in order to determine whether the price of a like product is formed in circumstances as comparable as possible to those of the exporting country .

The suitability of the analogue country selected for the purposes of determining the normal value may not be assessed solely in the light of the domestic production (even if a monopoly) of the products at issue, but in the light of the competition on the sales market for the products . In the absence of any analogue third country, the Commission may use the Union as an analogue market .

Although the choice of the appropriate market economy third country falls within the discretion enjoyed by the Commission, there can be no doubt on the competitive character of the country retained . Otherwise, normal value will not be regarded as determined in an appropriate and reasonable manner, in particular where the Commission has not seriously examined another country proposed . The discretion enjoyed by the Commission in the choice of an analogue country does not authorize it to disregard the requirement to choose a market economy third country where such a choice is possible. Therefore, where the Eurostat statistics available at the time of the investigation suggest that products similar to the product concerned are produced in market economy third countries in quantities which are not insignificant, it is the duty of the Commission to examine on its own initiative whether one of those countries could constitute an analogue country for the purposes of Article 2(7) of the basic regulation .

Commission Regulation (EC) No 358/2002 of 26 February 2002, imports of certain tube and pipe fittings, of iron or steel (the Czech Republic, Malaysia, Russia, Korea, the Slovak Republic), LawLex200900002811JBJ.

The mere fact that the reference country subjects imports from certain third countries to anti-dumping duties does not allow the conclusion that there is no price competition: Council Regulation (EU) No 2605/2000 of 27 November 2000, imports of certain electronic weighing scales (China, Korea, Taiwan), LawLex200900002591JBJ.

Commission Decision No 98/90 of 21 January 1998, imports of dihydrostreptomycin, LawLex201100000607JBJ.

Case C-16/90 Panagiotopoulou v Parliament [1992] ECR II-89, LawLex200900000633JBJ. See also, 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, which retains as an indication of the status as a non-market economy country the offer of joint undertaking by the exporting producers underpinned by guarantees given by the national authorities to ensure adequate monitoring, particularly with regard to the maximum volume of anti-dumping duty free imports.

Case C-16/90 Panagiotopoulou v Parliament [1992] ECR II-89, LawLex200900000633JBJ.

Case C-338/10 GLS, Judgment of 22 March 2012, LawLex201200000646JBJ.

The mere fact that there is only one producer in a third country does not preclude from retaining that qualification where genuine price competition may result from significant imports: Case C-26/96 Rotexchemie v Hauptzollamt Hamburg-Waltershof [1997] ECR I-2817, LawLex200900002171JBJ. On the nature of the competitive environment, Commission Regulation (EC) No 255/2001 of 7 February 2001, imports of integrated electronic compact fluorescent lamps (CFL-i) originating in the People's Republic of China, LawLex200900002843JBJ.

Case C-26/96 Rotexchemie v Hauptzollamt Hamburg-Waltershof [1997] ECR I-2817, LawLex200900002171JBJ.

Different methods do not preclude from making any comparison where the selected producer operated in a highly cost effective environment, which is the result of continuous research and investment: Commission Regulation (EC) No 1002/98 of 13 May 1998, imports of unwrought unalloyed magnesium originating in the People's Republic of China, LawLex200900002829JBJ.

Commission Regulation (EC) No 1002/98 of 13 May 1998, imports of unwrought unalloyed magnesium originating in the People's Republic of China, LawLex200900002829JBJ.

Case C-305/86 Neotype Techmashexport v Commission and Council [1990] ECR I-2945, LawLex200900000648JBJ; Council Regulation (EU) No 930/2003 of 26 May 2003, imports of farmed Atlantic salmon (Norway, Chili, Faeroe Islands), LawLex200900002550JBJ.

See also Council Regulation (EU) No 2605/2000 of 27 November 2000, imports of certain electronic weighing scales (China, Korea, Taiwan), LawLex200900002591JBJ, which considers that an appropriate third country may be identified in view of the significant volume of domestic and export sales made as compared to imports into the Union of the products concerned from a non-market economy country, given the level of competition on the markets in that third country and in foreign countries, which allowed for reasonable profits, and to the extent that products fall within the same range level.

Case T-326/21 Guangdong Haomei New Materials Co. Ltd, Judgment of 21 June 2023,

Case T-351/13 Crown Equipment (Suzhou), Judgment of 18 October 2016, LawLex201600001706JBJ. 

European Business Law

409. Choice of reference country

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

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

409. Choice of reference country

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