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

In order to establish the existence of dumping, a fair comparison must be made between the export price and the normal value of the product, even at the same level of trade, in respect of sales made at, as closely as possible, the same time. When this comparison is impossible under such conditions, account is taken of all differences which affect prices and price comparability, in the form of adju …

Normal value/Export price comparison

In order to establish the existence of dumping, a fair comparison must be made between the export price and the normal value of the product, even at the same level of trade, in respect of sales made at, as closely as possible, the same time. When this comparison is impossible under such conditions, account is taken of all differences which affect prices and price comparability, in the form of adjustments.

Article 2(10) of the anti-dumping regulation draws up a non-exhaustive list of adjustment factors; adjustment may be made where the differences relate to : 

- physical characteristics of the product concerned , 

- import charges and indirect taxes borne by the like product and by materials physically incorporated therein , 

- differences in transport, insurance, handling, loading and ancillary costs , 

- commissions paid in respect of the sales  and currency conversions . 

Where the construction of the normal value concerns an operator belonging to a group of companies, the Court of Justice considers that the division of production and sales activities within a group made up of legally distinct companies can in no way alter the fact that the group is a single economic entity which carries out in that way activities that, in other cases, are carried out by what is in legal terms also a single entity . In those circumstances, the fact that the institutions take the prices paid by the first buyer who is independent of the sales subsidiary is justified, given that those prices may quite properly be regarded as the prices actually paid or payable in the ordinary course of trade . In other words, normal value is not established on the basis of transfer prices or of the cost of production of the manufacturing company alone, but on the basis of the prices charged on sales to independent customers . The Court applies this principle by analogy to the calculation of the export price for the determination of the dumping margin .

Proof of the need for the allowance lies on the party claiming it . It is therefore incumbent upon the Commission, where it considers that an adjustment must be made, to establish that it is necessary, adducing at the very least consistent evidence , rather than upon the party affected by the adjustment . 

Council Regulation (EU) No 904/98 of 24 April 1998, imports into the Community of personal fax machines (China, Japan, Korea, Malaysia, Singapore, Taiwan, Thailand), LawLex200900002480JBJ, which states that to show only a difference in costs between the export and the domestic sales departments of the same company is an insufficient basis for a claim for differences in price comparability.

Commission Regulation (EC) No 2463/93 of 1 September 1993, imports of fluorspar (China), LawLex200900002733JBJ, as regards an adjustment corresponding to the drying costs of the exported product where the normal value is that of the dry product; No 920/93 of 15 April 1993, imports of certain magnetic disks (Japan, Taiwan, China), LawLex200900002728JBJ, as regards the taking into account of the lower degree of certification of certain exports of the product concerned; No 1506/94 of 27 June 1994, imports of urea ammonium nitrate solution (Bulgaria, Poland), LawLex200900002741JBJ, as regards an adjustment according to nitrogen content.

Council Regulation (EU) No 976/2002 of 4 June 2002, imports of certain ring binder mechanisms (RBM) (Indonesia, India), LawLex200900002500JBJ, which considers that, where sales to the Union are made through a related company established in a third State, an adjustment must be made to the export price to take account of its functions of a trader by deducting a commission from the export price.

Council Regulation (EU) No 1784/2000 of 11 August 2000, imports of certain malleable cast iron tube or pipe fittings (Brazil, the Czech Republic, Japan, China, Korea, Thailand), LawLex200900002572JBJ, which states that the date of the contract, purchase order or order of confirmation may be used as alternative to the date of sale in order to identify the rate of exchange in force when converting currencies, where one of those dates more appropriately reflects the material terms of sale; however, the exchange rate at the date of payment cannot be used.

Case 260/85 Tokyo Electric Company Ltd (TEC) and others [1988] ECR 5855, LawLex200900001460JBJ.

Case C-171/87 Canon Inc [1992] ECR I-1237, LawLex200900000715JBJ.

Council Regulation (EEC) No 993/93 of 26 April 1993 imposing a definitive anti-dumping duty on imports of certain electronic weighing scales originating in Japan.

Case C-191/09 P Interpipe Nikopolsky Deamless Tubes Plant Niko Tube ZAT, Judgment of 16 February 2012, LawLex201200000633JBJ; Case T-26/12 PT Perindustrian dan Perdagangan Musim Semi Mas, Judgment of 25 June 2015, LawLex201500000830JBJ.

Case C-156/87 Gestetner Holdings v Council and Commission [1990] ECR I-781, LawLex200900000561JBJ.

Case C-239-15 P RFA International LP, Judgment of 4 May 2017, LawLex201700000785JBJ.

Case T-249/06 Interpipe Niko Tube and Interpipe NTRP v Council [2009] ECR II-383, LawLex200900001937JBJ; Case T-122/09 Zhejiang Xinshiji, Judgment of 17 February 2011, LawLex201100000450JBJ on the obligation of the Commission to provide the information necessary to determine whether, in the light of the structure of the market, the adjustment in dispute was appropriate in that it made it possible to compare the export price and the Community industry price at the same level of trade.

Council Regulation (EU) No 2093/2002 of 26 November 2002, imports of polyester textured filament yarn (India), LawLex200900002558JBJ, concerning the repayment of excise duty on the export of the product concerned.

Commission Regulation (EC) No 575/2002 of 3 March 2002, imports of sulphanilic acid (China), LawLex200900002807JBJ, as regard adjustment as discounts.

Commission Regulation (EC) No 2140/89 of 12 July 1989, imports of certain compact disc players (Japan, South Korea), LawLex200900002683JBJ, which excludes adjustment with respect to differences in level of trade where the differences have already been taken into consideration when determining the normal value and the export price; No 1412/2002 of 29 July 2002, imports of polyester textured filament yarn (India), LawLex200900002792JBJ, which refuses an adjustment by reason of differences in the level of trade between the export price and the normal value where no consistent and distinct differences in functions and prices of the companies concerned for the different levels of trade in the domestic market of the exporting country could be found.

Commission Regulation (EC) No 1451/92 of 2 June 1992, imports into the Community of certain large electrolytic aluminium capacitors (Japan), LawLex200900002721JBJ, as regards allowance for salesmen's salaries and transport costs.

Council Regulation (EU) No 1050/2002 of 13 June 2002, imports of recordable compact disks (Taiwan), LawLex200900002510JBJ, as regards differences between individual packing costs per transaction and the weighted average export packing cost; Commission Regulation (EC) No 1412/2002 of 29 July 2002, imports of polyester textured filament yarn (India), LawLex200900002792JBJ, as regards differences in the directly related packing costs between the exported and the domestically sold products.

Council Regulation (EU) No 1497/2001 of 20 July 2001, imports of urea (Belarus, Bulgaria, Croatia, Estonia, Libya, Lithuania, Rumania, Ukraine, Egypt, Poland), LawLex200900002834JBJ, which refuses allowance for credit cost differences where provided information is contradictory and the payment terms were not agreed with the domestic customer prior to the sale; No 575/2002 of 3 March 2002, imports of sulphanilic acid (China), LawLex200900002807JBJ, which refuses credit costs for a number of domestic sales where the credits costs have not been calculated on the net invoice value but on the total invoice value (including indirect taxes such as sales tax and excise duty).

C-511/09 P Dongguan Nanzha Leco Stationery Mfg. Co., Ltd [2011] ECR I-10625, LawLex201200000642JBJ.

Commission Regulation (EC) No 313/92 of 4 February 1992, imports of radiobroadcast receivers (South Korea), LawLex200900002720JBJ, which considers that where it is normal practice in the domestic market of the exporting country not to provide a warranty but to indicate on the invoice a percentage of the amount of the invoice corresponding to the supply of spare parts free of charge, allowance may be granted to all the exporters in respect of the said expenses treated as equivalent to warranties, on the basis of a percentage which was held to be in line with practice within the trade.

European Business Law

416. Normal value/Export price comparison

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

416. Normal value/Export price comparison

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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