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

A dumped product may be subject to anti-dumping duty only where its release for free circulation in the Union causes injury. According to Article 3 of the anti-dumping regulation, injury may have three meanings: material injury to the Union industry, threat of material injury or material retardation of the establishment of a Union industry.
1) Imminent and clearly foreseable material injury
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Injury, threat of injury or material retardation in the establishment of a Union industry

A dumped product may be subject to anti-dumping duty only where its release for free circulation in the Union causes injury. According to Article 3 of the anti-dumping regulation, injury may have three meanings: material injury to the Union industry, threat of material injury or material retardation of the establishment of a Union industry.

1) Imminent and clearly foreseable material injury

To establish the existence of injury, Article 3 requires evidence of a material impact on the Union industry. Injury must be clearly foreseen and imminent in view of the current tendency in the market. This is not the case where the increase in the market share of the exporting country concerned is not to the detriment of the Union producers but to that of other producers  or where evidence is not brought of a likely significant increase in the production of the exporting country intended for export to the Union in the near future, although it has the largest reserves in the world . 

Threat must be based on facts and not on an allegation, conjecture or remote possibility (Art. 3(9)). The threat of injury is characterized neither by the risk of exports to the Union from the country at the origin of the dumping arising of the mere finding of the increased production capacity of exporting producers and the absence of increased European consumption , nor by the imposition of an anti-dumping duty on a market other than the Union, such as the United States of America, by reason of the relatively low level of the duty in question - 3 to 5% - and the fact that the exporters concerned have traditionally found markets other than the Union . 

The anti-dumping regulation gives a non-exhaustive list of factors which may be taken into account to determine the existence of a threat of injury (Art. 3(9)):

- a significant rate of increase of dumped imports into the European market indicating the likelihood of substantially increased imports;

- sufficient freely disposable capacity of the exporter or an imminent and substantial increase in such capacity indicating the likelihood of substantially increased dumped exports to the Union, account being taken of the availability of other export markets to absorb any additional exports;

- whether imports are entering at prices that would, to a significant degree, depress prices or prevent price increases which otherwise would have occurred, and would probably increase demand for further imports;

- inventories of the product being investigated .

No one of these factors by itself can lead to the existence of a threat of prejudice but the totality of them may lead to the conclusion that further dumped exports are imminent and that, unless protective action is taken, injury will occur (Art. 3(9)).

3) Material retardation of the establishment of a Union industry

The “material retardation of the establishment of a Union industry” is not defined in the anti-dumping regulation, and judgments finding such an injury are extremely rare. The finding of a material retardation in the establishment of a Union industry implies that the Union production is not fully established yet, but in development. According to the Commission, it can be said that European undertakings have made very serious commitments to start the production of the products concerned in the Union where they have made detailed plans on investment, production, costs, marketing and strict timing schedules with a view to commercial production, have acquired the most advanced technological know-how, have built very costly new facilities, acquired and installed state-of-the-art machinery . The condition of materiality is assessed not only given the time factor but also in view of the significant effects of retardation on the economic and social situation of the European undertakings in question. On the other hand, the repeal of an anti-dumping duty cannot cause retardation of the re-establishment of the Union production where a revival, related to an increase in demand, is limited to the medium and high-quality segment of the market, whilst the product concerned is on the low-quality end of the market .

Commission Decision No 93/325 of 18 May 1993, imports of paint, distemper, varnish and similar brushes (China), LawLex201100000583JBJ, which considers that injury is not imminent and clearly foreseeable in view of the current tendency of the market according to which any increase in the market share of the exporting country concerned is not to the detriment of the Union producers but to that of other producers.

Commission Decision No 94/389 of 6 June 1994, imports of refined antimony trioxide (China), LawLex201100000586JBJ.

Case T-163/94 NTN Corporation v Council [1995] ECR II-1381, LawLex200900001274JBJ.

Commission Decision No 91/303 of 12 June 1991, imports of thin polyester film (Korea), LawLex201100000580JBJ. 

See also Commission Decision No 94/389 of 6 June 1994, imports of refined antimony trioxide (China), LawLex201100000586JBJ, which considers that this situation is not likely to develop into imminent material injury although the exporting country has the largest reserves in the world, as there is no evidence to suggest that a significant increase of its production intended for export to the Union is likely in the near future.

Commission Regulation No 165/90 of 23 January 1990, imports of certain types of electronic microcircuits known as drams (Japan), LawLex200900002686JBJ.

Council Regulation No 2686/90 of 17 September 1990, mechanical wrist-watches (Soviet Union), LawLex200900002423JBJ.

European Business Law

418. Injury, threat of injury or material retardation in the establishment of a Union industry

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418. Injury, threat of injury or material retardation in the establishment of a Union industry

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