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

Where there is no actual export price or the export price is unreliable because of an association or a compensatory arrangement between the exporter and the importer or a third party , the export price may be constructed on the basis of the price at which the imported products are first resold to an independent buyer , or, if the products are not resold to an independent buyer, or are not resold i …

Constructed price

Where there is no actual export price or the export price is unreliable because of an association or a compensatory arrangement between the exporter and the importer or a third party , the export price may be constructed on the basis of the price at which the imported products are first resold to an independent buyer , or, if the products are not resold to an independent buyer, or are not resold in the State to which they have been imported, on any other reasonable basis (Art. 2(9)(1), Regulation No 2016/1036). A transaction-by-transaction method may be preferred to a weighted average of the prices charged where it is used to preclude certain maneuvers in which dumping is disguised by charging different prices, some above the normal value and some below it .

In order to establish a reliable export price at the European frontier level, adjustments must be made to take account of all costs, including duties and taxes, incurred between importation and first resale to an independent buyer, and a profit margin (Art. 2(9)(2), Regulation No 2016/1036) . In particular, costs and profits inherent in the activity pursued by the exporter's subsidiary which is established in the Union, and through which export sales are made, shall be deduced . The costs justifying adjustment include those normally borne by an importer but paid by any party, either inside or outside the Union, which appears to be associated or to have a compensatory arrangement with the importer or exporter: usual transport, insurance, handling, loading and ancillary costs, customs duties, any anti-dumping duties, and other taxes payable in the importing country by reason of the importation or sale of the goods, and a reasonable margin for selling, general and administrative costs and profit . An adjustment of the export price can be made not only for differences in commissions paid in respect of the sales under consideration but also for the mark-up received by traders of the products if their functions are similar to those of agents working on a commission basis . 

The adjustments made to the export price intended to determine the export price corresponding to normal trading conditions are different, as regards both their purpose and the conditions under which they are applied, from adjustments made in the construction of the export price intended to rectify the export price or the normal value already calculated pursuant to the rules laid down in Article 2(3) to (9) of the Basic Regulation by reference to objective factors corresponding to the particular features of each market (domestic or export), and have a varying impact on conditions and terms of sale, thus affecting price comparability .

Regulation No 2016/1036, Article 2(9)(1); Case T-51/96 Miwon v Council [2000] ECR II-1841, LawLex200800000099JBJ, stating that the constructed export price may be used not only where the institutions obtain actual evidence of the existence of a compensatory arrangement but also where such an arrangement appears to exist or the export price reported appears to be unreliable; T-88/98 Kundan and Tata v Council [2002] ECR II-4897, LawLex200900001390JBJ, stating that the finding of a compensatory arrangement which may be deduced from the fact that resale price charged by the exported on the European market are lower than the purchase prices charged by the manufacturer with whom it is linked by an exclusive distribution agreement, leads to fix the export price according to the price charged by that exported within the Union.

Case C-172/87 Mita Industrial v Council [1992] ECR I-1301, LawLex200900000738JBJ; Council Regulation (EU) No 3651/88 of 23 November 1988, imports of serial-impact dot-matrix printers (Japan), LawLex200900002383JBJ; No 1074/96 of 10 June 1996, imports of polyester yarn (Taiwan, Turkey), LawLex200900002411JBJ; No 950/2001 of 14 May 2001, imports of certain aluminum foil (China, Russia), LawLex200900002608JBJ; Commission Regulation (EC) No 981/97 of 29 May 1997, imports of certain seamless pipes and tubes of iron or non-alloy steel (Russia, the Czech Republic, Rumania, the Slovak Republic), LawLex200900002794JBJ.

Case 255/84 Nachi Fujikoshi v Council [1987] ECR 1861, LawLex200900001771JBJ and 260/84 Minebea v Council [1987] ECR 1975, LawLex200900001786JBJ. See also Council Regulation (EU) No 1074/96 of 10 June 1996, imports of polyester yarn (Taiwan, Turkey), LawLex200900002411JBJ, which, according to the transaction-by-transaction method, only retains transactions which concern quantities directly sold by the exporter to independent importers in order to determine the export price.

Case 277/85 Canon v Council [1988] ECR 5731, LawLex200900002332JBJ, which, with respect to adjustment factors, retains a 3% profit margin to be deduced from that margin of independent importers; See also C-156/87 Gestetner Holdings v Council and Commission [1990] ECR I-781, LawLex200900000561JBJ, which retains the price invoiced by the subsidiary after deducting from that price a reasonable margin for overheads and profit, estimated at 5%; C-188/88 NMB v Commission [1992] ECR I-1689, LawLex200900000761JBJ, for the deduction of anti-dumping duties; Council Regulation (EU) No 2380/95 of 2 October 1995, imports of plain paper photocopiers (Japan), LawLex200900002395JBJ, regarding deduction of costs incurred by the exported, or its subsidiary, and which would normally have been undertaken by the importer, such as the provision of advertising support or costs relating to the performance of the role of re-invoicing agent.

Case C-172/87 Mita Industrial v Council [1992] ECR I-1301, LawLex200900000738JBJ.

Regulation No 2016/1036, Article 2(9)(3).

Case T-459/08 EuroChem Mineral and Chemical Company OAO (EuroChem MCC), Judgment of 7 February 2013, LawLex201300000248JBJ.

Case C-239/15 P, RFA International LP, Judgment of 4 May 2017, LawLex201700000785JBJ; Case T-383/17 Hansol Paper Co. Ltd, Judgment of 2 April 2020, LawLex202000001666JBJ.

European Business Law

414. Constructed price

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414. Constructed price

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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