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

When producers are related to the exporters or importers, the concept of “Union industry may be interpreted as referring to the rest of the producers” (Regulation No 2016/1036, Article 4(1)(a)). In effect, European undertakings related to exporters behind dumping are to be excluded from the definition of the Union production if this relationship leads the undertakings to behave differently from other producers . The sole fact that there is a link with an importer located outside the Union is, however, not sufficient as such to exclude a producer from the Union industry .

According to Article 4(2) of the anti-dumping regulation, producers are considered to be related if: 

- one of them directly or indirectly controls the other; or

- both of them are directly or indirectly controlled by a third person; or

- together they directly or indirectly control a third person.

Control is defined as the legal or operational power to exercise restraint or direction over the producer concerned . The wholly-owned subsidiary of the exporter concerned by the dumping investigation cannot be included in the definition of Union industry .

Although the exclusion of Union producers is determined on a case-by-case basis , three criteria are mainly drawn from the decision-making practice of the institutions. Thus, a related producer cannot be included in the Union industry where it is protected, one way or another, from the adverse effects of dumping , benefits from them , or does not have sufficient autonomy to adopt a different conduct . In such a case, the subsidiary is an additional source of supply for importers applying dumping . Likewise, a European company who is not related to any exporter behind dumping, but manufactures its products from derivatives exported by its parent company at dumping price  must be excluded. 

However, Union producers having links with export companies behind dumping may be retained in the definition of the Union industry where they behave as autonomic economic agents . When the related company has fully supported the complaint, actively participated in the investigation and is not subject to any restrictive control from its shareholders, it may be described as a Union producer . Likewise, the status of Union producer is recognized to a related producer who manages to show that its import activity with its parent company is a necessary commercial measure until the time when fair conditions of competition are restored , is merely an additional activity supplementing Union production , only covers small quantities  or falls within a business strategy with conflicting interests as compared to the interests of the related producer .

Council Regulation (EU) No 1522/2000 of 10 July 2000, imports of synthetic staple fibres of polyester (Australia, Indonesia, Thailand), LawLex200900002567JBJ.

Council Regulation (EU) No 2852/2000 of 22 December 2000, imports of polyester staple fibres (India, Korea), LawLex200900002599JBJ.

Commission Regulation No 1695/88 of 14 June 1988, imports of polyester yarn originating in Mexico, South Korea, Taiwan and Turkey, LawLex200900002674JBJ.

Council Regulation (EU) No 1522/2000 of 10 July 2000, imports of synthetic staple fibres of polyester (Australia, Indonesia, Thailand), LawLex200900002567JBJ. See also a contrario: Council Regulation (EU) No 1603/2000 of 20 July 2000, imports of ethanolamines (United States of America), LawLex200900002571JBJ.

See, inter alia, Commission Regulation (EC) No 1845/98 of 27 August 1998, imports of certain large electrolytic aluminium capacitors (United States of America, Thailand), LawLex200900002863JBJ; Cf. with the activity of import by a non-related Union producer, as self-defense measure: Council Regulation (EU) No 725/89 of 20 March 1989, imports of paint, distemper, varnish and similar brushes (China), LawLex200900002399JBJ.

Council Regulation (EC) No 535/87 of 23 February 1987, imports of plain paper photocopiers (Japan), LawLex201200000250JBJ; No 423/97 of 3 March 1997, imports of gas-fuelled, non-refillable pocket flint lighters (Thailand, the Philippines, Mexico), LawLex200900002428JBJ.

Council Regulation (EU) No 2320/97 of 17 November 1997, imports of certain seamless pipes and tubes of iron or non-alloy steel (Hungary, Poland, Russia, the Czech Republic, Rumania and the Slovak Republic), LawLex200900002457JBJ.

Commission Decision No 98/230 of 20 March 1998, imports of tungstic oxide and tungstic acid (China), LawLex201100000601JBJ; Council Regulation (EU) No 771/98 of 7 April1998, imports of tungsten carbide and fused tungsten carbide (China), LawLex200900002479JBJ; No 1531/2002 of 14 August 2002, imports of color television receivers (China, Korea, Malaysia and Thailand), LawLex200900002563JBJ.

Council Regulation (EU) No 173/2000 of 24 January 2000, imports of certain large aluminium electrolytic capacitors (Japan, Korea, Taiwan), LawLex200900002521JBJ, for an undertaking jointly held in equal parts by a Union producer and an exporting producer from a country behind dumping. Cf. Commission Regulation (EC) No 2140/89 of 12 July 1989, imports of certain compact disc players (Japan, South Korea), LawLex200900002683JBJ, for an undertaking which constitutes the main Union producer and has a 50% shareholding in a company established in the country concerned by dumping but without substantial influence on its general industrial and commercial behavior.

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

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

Commission Regulation (EC) No 837/2000 of 19 April 2000, imports of certain cathode-ray color-television picture tubes (India, Malaysia, China, Korea), LawLex200900002879JBJ; No 1472/2000 of 6 July 2000, imports of polyester staple fibres originating in India and the Republic of Korea, LawLex200900002858JBJ; No 367/2001 of 23 February 2001, imports of polyethylene terephthalate film (India and Korea), LawLex200900002841JBJ.

Council Regulation (EU) No 2685/90 of 17 September 1990, imports of certain ball bearings originating in Japan and Singapore, LawLex200900002421JBJ; No 2849/92 of 28 September 1992, imports of ball bearings (Japan), LawLex200900002439JBJ; Commission Regulation (EC) No 920/93 of 15 April 1993, imports of certain magnetic disks (Japan, Taiwan, China), LawLex200900002728JBJ; Commission Decision No 1613/90 of 13 June 1990, imports of ball bearings with a greatest external diameter not exceeding 30 mm originating in Thailand, LawLex200900002692JBJ; Council Regulation (EU) No 802/97 of 29 April 1997, imports of ball bearings (Japan), LawLex200900002429JBJ; Council Regulation (EU) No 311/2002 of 18 February 2002, imports of certain magnetic disks (3,5" microdisks) originating in Hong Kong and the Republic of Korea, LawLex200900002589JBJ.

Council Regulation (EU) No 2320/97 of 17 November 1997, imports of certain seamless pipes and tubes of iron or non-alloy steel (Hungary, Poland, Russia, the Czech Republic, Rumania and the Slovak Republic), LawLex200900002457JBJ; Commission Regulation No 1695/88 of 14 June 1988, imports of polyester yarn originating in Mexico, South Korea, Taiwan and Turkey, LawLex200900002674JBJ; Commission Regulation (EC) No 2140/89 of 12 July 1989, imports of certain compact disc players (Japan, South Korea), LawLex200900002683JBJ, for a Union producer who has a 50% shareholding in a company established in the country concerned by dumping but who does not have any substantial influence on its general industrial and commercial behavior; Council Regulation (EU) No 174/2000 of 24 January 2000, imports of gas-fuelled, non-refillable pocket flint lighters (Japan), LawLex200900002523JBJ, for a wholly-owned subsidiary. - The fact that the subsidiary benefitted from the shared know-how of the parent companies is a corroborating factor: Council Regulation (EU) No 173/2000 of 24 January 2000, imports of certain large aluminium electrolytic capacitors (Japan, Korea, Taiwan), LawLex200900002521JBJ, for an undertaking jointly held in equal parts by a EU producer and an exporting producer from a country behind dumping.

Commission Decision No 83/428 of 26 August 1983, imports of caravans for camping and parts thereof (Yugoslavia), LawLex201100000558JBJ; Commission Regulation (EC) No 757/84 of 22 March 1984, imports of certain electronic scales (Japan), LawLex200900002653JBJ;Council Regulation (EU) No 2849/92 of 28 September 1992, imports of ball bearings (Japan), LawLex200900002439JBJ.

Commission Regulation (EC) No 53/97 of 14 January 1997, imports of polyester textured filament yarn (Malaysia), LawLex200900002784JBJ.

424. Exclusion of producers related to exporters or importers