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 Union producers are themselves importers, Article 4(1)(a) of the anti-dumping regulation also excludes them from the definition of Union industry . This is the case for the producer who is the sole importer and is a wholly-owned subsidiary of the exporter concerned by the dumping investigation . In effect, the importer cannot be accounted for insofar as the production of the imported product …

Exclusion of importing producers

Where Union producers are themselves importers, Article 4(1)(a) of the anti-dumping regulation also excludes them from the definition of Union industry . This is the case for the producer who is the sole importer and is a wholly-owned subsidiary of the exporter concerned by the dumping investigation . In effect, the importer cannot be accounted for insofar as the production of the imported product is not its main activity . Thus, where imports account for a small part of its turnover - 10% -  and they are made in order to offer customers a complete range of products  and/or to cover shortfalls in supply , the importer may be included in the definition of Union industry.

The importer also belongs to the Union industry where its import activity is a self-defense measure, even an interim one , towards low price imports, even, more rarely, a means to protect and maintain its position in the domestic market during a start-up period . Self-defense measures must be legitimate, reasonable and proportionate. In particular, this is the case where they relate to products sold at a rather low price, only represent a modest proportion of total sales in the Union and only enable a margin below 5% , where the level of imports is limited to the quantity necessary to palliate their insufficient production at a time of rapid market growth and prevented damaging consequences for their continued presence on the market  or where the producer imports the product concerned to avoid losing its market share and not by reason of an inability to manufacture , then stops importing when production at its new plant starts . 

Commission Regulation (EC)  No 1337/81 of 18 May 1980, imports of certain textured polyester fabrics (United States of America), LawLex200900002628JBJ.

Council Regulation (EU) No 174/2000 of 24 January 2000, imports of gas-fuelled, non-refillable pocket flint lighters (Japan), LawLex200900002523JBJ.

Commission Regulation (EC) No 1833/98 of 25 August 1998, imports of bicycles (Taiwan), LawLex200900002862JBJ.

Commission Regulation (EC) No 997/85 of 18 April 1985, imports of glycine (Japan), LawLex200900002663JBJ; No 2479/2001 of 17 December 2001, imports of recordable compact disks (Taiwan), LawLex200900002827JBJ, a producer is not excluded from the definition of Union production where imports represent a relatively low percentage of its production and purchases and are aimed, for a substantial part thereof, at satisfying demand while installing new or additional capacity; Commission Regulation No 823/95 of 10 April 1995, imports of disodium carbonate (United States of America), LawLex200900002744JBJ, which considers that the Union operator who purchased a producer of a country concerned by dumping and imported itself the product concerned, however belongs to Union industry where these imports merely represented 10% of the production sold in the Union and stopped when the existing contracts expired, investments abroad constituting a normal extension of its business activities.

According to the Commission, where a company's sales are mostly of products imported, it should therefore not be considered that the production is its main activity: Commission Regulation No 1465/96 of 25 July 1996, imports of certain ring binder mechanisms (China), LawLex200900002777JBJ.

Commission Regulation No 823/95 of 10 April 1995, imports of disodium carbonate (United States of America), LawLex200900002744JBJ; Commission Regulation No 1069/97 of 12 June 1997, imports of cotton-type bed linen (Egypt, India, Pakistan), LawLex200900002801JBJ; See also Commission Regulation (EC) No 2140/89 of 12 July 1989, imports of certain compact disc players (Japan, South Korea), LawLex200900002683JBJ, for imports representing 2% of the sales; Commission Regulation (EC) No 2318/95 of 27 September 1995, on imports of certain tube or pipe fittings, of iron or steel (China, Croatia, Thailand, the Slovak Republic, Taiwan), LawLex200900002762JBJ; No 1092/97 of 16 June 1997, imports of advertising matches (Japan), LawLex200900002803JBJ, for imports below 4% of the importer's own production; Commission Regulation No 165/97 of 28 January 1997, imports of certain footwear with textile uppers originating in the People's Republic of China and Indonesia, LawLex200900002786JBJ, for imports representing less than 25% of the Union producer's turnover. 

Case 260/85 TEC v Council [1988] ECR 5855, LawLex200900001460JBJ, as regards imports which concern a few models, all of them at the lower end of the range, and made in order to fill gaps in the range of products; Council Regulation (EU) No 2318/95 of 27 September 1995, imports of certain tube or pipe fittings, of iron or steel (China, Croatia, Thailand, the Slovak Republic, Taiwan), LawLex200900002762JBJ, as regards imports which relate to a product intended to complement the Union producer's range of products; 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, as regards a Union operator who keeps its primary activity within the Union, and the imports complete its range.

Commission Regulation (EC) No 1497/2001 of 20 July 2001, imports of urea (Belarus, Bulgaria, Croatia, Estonia, Libya, Lithuania, Rumania, Ukraine, Egypt, Poland), LawLex200900002834JBJ; Council Regulation (EU) No 769/2002 of 7 May 2002, imports of coumarin (China), LawLex200900002578JBJ.

Commission Regulation (EC) No 1418/88 of 17 May 1988, imports of serial-impact dot-matrix printers (Japan), LawLex200900002673JBJ.

Commission Regulation (EC) No 1748/95 of 17 July 1995, imports of peroxodisulphates (China), LawLex200900002750JBJ.

Commission Regulation (EC) No 1418/88 of 17 May 1988, imports of serial-impact dot-matrix printers (Japan), LawLex200900002673JBJ; Council Regulation (EU) No 725/89 of 20 March 1989, imports of paint, distemper, varnish and similar brushes (China), LawLex200900002399JBJ.

Council Regulation (EU) No 534/94 of 9 March 1994, imports of certain magnetic disks (Hong-Kong, Korea), LawLex200900002737JBJ; See also Council Regulation (EC) No 725/89 of 20 March 1989, imports of paint, distemper, varnish and similar brushes (China), LawLex200900002399JBJ; Council Regulation (EU) No 550/93 of 5 March 1993, imports of bicycles (China), LawLex200900002725JBJ; C-156/87 Gestetner Holdings v Council and Commission [1990] ECR I-781, LawLex200900000561JBJ, for plain paper photocopiers; Commission Regulation (EC) No 313/92 of 4 February 1992, imports of radiobroadcast receivers (South Korea), LawLex200900002720JBJ.

European Business Law

425. Exclusion of importing producers

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425. Exclusion of importing producers

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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