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

The anti-dumping regulation requires evidence of dumping, injury and a causal link between dumped imports and the alleged injury to the Union industry. To establish the causal link, the regulation requires a demonstration, according to a double test - positive and negative -, of a material impact of dumping on the Union industry both in terms of volume and price (Art. 3(6)) and the absence of know …

Principle of double testing

The anti-dumping regulation requires evidence of dumping, injury and a causal link between dumped imports and the alleged injury to the Union industry. To establish the causal link, the regulation requires a demonstration, according to a double test - positive and negative -, of a material impact of dumping on the Union industry both in terms of volume and price (Art. 3(6)) and the absence of known factors other than the dumped imports which at the same time may partly or fully cause injury to the Union industry (Art. 3(7)). 

However, in order to institute an anti-dumping duty, the imports concerned need not be the sole cause of injury where, taken in isolation, they have a material impact on the Union industry . It is possible to allocate the liability for injury caused by dumping to an importer, even if the losses resulting from dumping are only part of a greater injury attributable to other factors.

The coincidence between, on the one hand, increase in the imports concerned or the substantial undercutting margin and, on the other hand, the deteriorating situation of the Union industry, clearly establishes the causal link , in particular where the market is highly transparent and price-sensitive . The cause of injury may also be the existence of a direct and proportional link between the difficulties of the Union industry and the presence in the market of dumped imports  or the fact that the sales made by the exporters concerned and by the Union industry went through the same sales channels or to the same customers on a market characterized by a high “price elasticity” . Thus, in the case of a basic product, for which the purchase price appears to be the determining factor and for which the loyalty between supplier and customer appears to be of little or no importance, low-priced offers from outside such as imports at dumped prices are bound to have serious adverse effects on the Union production . Lastly, where only sales by the Union industry of standard products are loss-making while exports from the countries concerned almost exclusively concentrate in that type of product  or where these exports are made by a dominant undertaking , evidence of the existence of a causal link is brought.

Council Regulation (EU) No 2381/95 of 10 October 1995, imports of disodium carbonate (United States of America), LawLex200900002398JBJ; See also Case 277/85 Canon v Council [1988] ECR 5731, LawLex200900002332JBJ and Case T-159/94 Ajinomoto and The NutraSweet Company v Council [1997] ECR II-2461, LawLex200900001263JBJ, which consider that the fact a Union producer is facing difficulties, whether or not attributable to causes other than dumping, is not a reason for depriving that producer of all protection against the injury caused by the dumping.

Commission Regulation (EC) No 1043/2000 of 18 May 2000, imports of glycine (China), LawLex200900002872JBJ, concerning the clear coincidence between the decreased prices of imports from the countries concerned, the fact that these imports virtually doubled in terms of volume and market share, and the deteriorating situation of the Union industry; No 367/2001 of 23 February 2001, imports of polyethylene terephthalate film (India and Korea), LawLex200900002841JBJ, regarding the coincidence between, on the one hand, the significant increase in volume of the imports concerned (more than 83%), the increase in the European market share held by exporters (from 15 to 20.3%) and the substantial undercutting found (up to 49%) and, on the other hand, the deterioration of the situation of the Union industry in terms of loss of market share, of price depression and suppression and of a deterioration of profitability which turned into significant losses; No 1611/2003 of 15 September 2003, imports of certain stainless steel cold-rolled flat products (United States of America), LawLex200900002637JBJ, concerning the coincidence in time between, on the one hand, the increase in export volume and market shares and the undercutting found and, on the other hand, the deterioration of the situation of the Union industry; No 540/2002 of 26 March 2002, imports of certain welded tubes and pipes, of iron or non-alloy steel (the Czech Republic, Poland, Thailand, Turkey, Ukraine), LawLex200900002802JBJ, concerning the coincidence between the significant increase in the volume of the dumped imports, the corresponding market share, and the undercutting found, with the loss of sales volume of the Union industry, market share and a deterioration of profitability.

Commission Regulation (EC) No 2997/95 of 20 December 1995, imports of unwrought magnesium (Russia, Ukraine), LawLex200900002771JBJ; Council Regulation (EU) No 1347/96 of 2 July 1996, imports of unwrought pure magnesium (Russia, Ukraine), LawLex200900002412JBJ; No 2051/98 of 24 September 1998, imports of monosodium glutamate (Brazil, Vietnam, Korea, Taiwan, United States of America, Indonesia), LawLex200900002484JBJ; Commission Regulation (EC) No 1778/97 of 12 September 1997, imports of ferro-silico-manganese (China), LawLex200900002809JBJ.

Commission Regulation (EC) No 1092/97 of 16 June 1997, imports of advertising matches (Japan), LawLex200900002803JBJ, in which the profitability of the Union industry was negative on the sales of products where dumped imports were concentrated and profitable by 6% on sales where these imports were negligible. In addition to that 'coincidence', there was a finding that the imports concerned represented more than one-third of the European market, with an increase in value by 24% while the Union industry's share decreased by 10% and exports prices still lower by 6.2%.

Council Regulation (EU) No 5/96 of 22 December 1995, imports of microwave ovens (China, Korea, Malaysia, Thailand), LawLex200900002402JBJ.

Commission Regulation (EC) No 3339/87 of 4 November 1987, imports of urea (Libya, Saudi Arabia, Czechoslovakia, GDR, Kuwait, the Soviet Union, Trinidad-and-Tobago, Yugoslavia), LawLex200900002376JBJ; See also 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, where price is the main consideration when purchasing products, where there are no real differences in quality, particularly in the case of standard types; Commission Regulation (EC) No 1092/97 of 16 June 1997, imports of advertising matches (Japan), LawLex200900002803JBJ, which considers that low-priced imports have had a negative impact even more material on the deterioration of the situation of the Union industry since the product in question is technically a simple product, offered through similar channels to the same users in the Union.

Commission Regulation (EC) No 2563/1999 of 3 December 1999, imports of compact discs boxes (China), LawLex200900002899JBJ; See also Council Regulation (EU) No 397/1999 of 22 February 1999, imports of bicycles (Taiwan), LawLex200700001665JBJ, in a case where 60% of imports from the countries concerned mainly concentrate in the low-end range products where European prices are mainly depressed; No 2605/2000 of 27 November 2000, imports of certain electronic weighing scales (China, Korea, Taiwan), LawLex200900002591JBJ, also for a case where the Union industry's sales in the low range segment were made at a substantial loss where it is precisely this segment which was targeted by the exporting producers.

Commission Regulation (EC) No 617/98 of 18 March 1998, imports of polysulphide polymers (United States of America), LawLex200900002821JBJ, as regards dumped imports which come from the market leader in the Union with a market share of over 75%.

European Business Law

428. Principle of double testing

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428. Principle of double testing

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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