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Caso Huvis Appunti scolastici Premium

La dispensa fa riferimento alle lezioni di Diritto Internazionale, tenute dalla Prof. ssa Alessandra Lanciotti nell'anno accademico 2011.
Il documento riporta il testo in inglese della sentenza del Tribunale di Primo Grado del 2008 relativa al caso Huvis. Parole chiave: dumping, importazione... Vedi di più

Esame di Diritto Internazionale docente Prof. A. Lanciotti

Anteprima

ESTRATTO DOCUMENTO

30 It is appropriate to begin with an examination of the plea alleging infringement of Article 11(9) of the basic regulation and of the obligation to

state reasons.

Arguments of the parties

31 The applicant claims that the institutions concerned infringed Article 11(9) of the basic regulation and failed in their obligation to state reasons.

In breach of that provision, the contested regulation applied a different method to that applied in the initial investigation (the ‘input’ method)

without any change in the factual or legal circumstances. The applicant disputes the Council’s interpretation according to which, in the

applicant’s view, a change in the method may be regarded as a change in circumstances. According to the applicant, any exception to a rule

must be narrowly construed, and the change of circumstances required by Article 11(9) of the basic regulation in order to allow a change in

method must be interpreted as relating only to a change in the factual context. If that were not the case, the reassessment of the original

context would be distorted in the interim review.

32 In the alternative, the applicant submits that if the Court considers that the change in method is consistent with Article 11(9) of the basic

regulation, it should be allowed only if it is established beyond any reasonable doubt that the method originally used was invalid. That would,

in particular, be the case if the Court were to declare such a method unlawful. It is not for the institutions concerned to decide on the legality

of a method because, otherwise, they could change the method in an arbitrary fashion, as they did in the present case. Moreover, as the

institutions have consistently used the ‘input’ method, that method cannot be regarded as flawed.

33 The applicant further maintains that both Article 253 EC and Community case­law impose on the institutions a clear and unequivocal

obligation to provide reasons which was not complied with by the institutions concerned when they changed the method and simply stated,

in recital (128) in the preamble to the contested regulation, that the method used in the original investigation did not reflect the actual level of

duties borne by the like product.

34 The Council disputes the applicant’s interpretation of Article 11(9) of the basic regulation that a change in the calculation method is permitted

only if there is a change in the factual context. That provision refers to a ‘change in circumstances’ and not to a ‘change in the factual

context’ and its sole purpose is to prevent arbitrary changes of methodology. Thus, according to the Council, the ‘change in circumstances’

includes situations where the Community institutions become aware that a method used in the original investigation is inaccurate and that

an alternative method allows for an accurate adjustment and a fair comparison.

35 In addition, the applicant’s interpretation would allow it to justify an infringement of other provisions of the basic regulation, requiring the

institutions to continue to apply in an interim review investigation a method which does not allow for a fair comparison, on the sole ground

that it was used in the original investigation. According to the Council, the application of the ‘input’ method, used in the initial investigation,

would result, in some cases, in an adjustment even though the duty drawback did not result in a cost difference between exported and

domestically sold products and, in other cases, would result in an adjustment exceeding that cost difference.

36 The Council also disputes the alternative claim put forward by the applicant that any change of method under Article 11(9) of the basic

regulation must be limited to cases where the method originally applied is proved, beyond any reasonable doubt, to be invalid. According to

the Council, there is no legal basis for such a claim and it runs counter to the Community institutions’ discretion in anti­dumping cases (Case

Shanghai Teraoka Electronic Council

T­35/01 v [2004] ECR II­3663, paragraphs 48 and 49).

37 As regards the breach of the obligation to state reasons, the Council argues that there was no such breach, since the applicant was closely

involved in the decision­making process and was informed on numerous occasions of the reasons which led the institutions to adopt the

residual method, namely, that an adjustment is possible only in relation to duties paid but not refunded. The applicant itself acknowledged

that it understood that reasoning in a letter of 30 December 2004. In addition, the Council submits that recital (128) in the preamble to the

contested regulation provides sufficient reasons.

Findings of the Court

38 At the outset, it should be borne in mind that, in the sphere of measures to protect trade, the Community institutions enjoy a broad discretion

Ikea Wholesale

by reason of the complexity of the economic, political and legal situations which they have to examine (Case C­351/04

Shanghai Teraoka Electronic Council,

[2007] ECR I­7723, paragraph 40; see v paragraph 48 and the case­law cited).

39 Furthermore, it is settled case­law that the choice between the different methods of calculating the dumping margin and the assessment of the

normal value of a product require an appraisal of complex economic situations, and the judicial review of such an appraisal must therefore

be limited to verifying whether relevant procedural rules have been complied with, whether the facts on which the contested choice is based

Ikea

have been accurately stated, and whether there has been a manifest error in the appraisal of those facts or a misuse of powers (see

Wholesale, paragraph 41 and the case­law cited).

40 The applicant claims that the institutions concerned have infringed Article 11(9) of the basic regulation by not applying the same method in the

contested regulation as that applied in the initial investigation.

41 It follows from Article 11(9) of the basic regulation that, as a general rule, in the context of a review, the institutions are required to use the

same method, including the method for comparing the export price and the normal value pursuant to Article 2(10) of the basic regulation, as

the method used in the initial investigation which led to the duty being imposed. That provision provides for an exception allowing the

institutions to apply a different method to that used in the initial investigation to the extent to which circumstances have changed. In that

Shanghai Teraoka Electronic Council,

regard, any derogation from or exception to a general rule must be interpreted strictly (see v

paragraph 50 and the case­law cited). It is therefore for the institutions to demonstrate that the circumstances have changed if they intend to

apply a different method to that applied in the initial investigation.

42 Moreover, it follows from Article 11(9) of the basic regulation that the method applied must be consistent with Articles 2 and 17 of the basic

regulation.

43 In the present case, it should be borne in mind that the institutions concerned used the ‘input’ method in the initial investigation. In the review,

those institutions applied the residual method. It is thus necessary to examine whether those institutions were entitled to apply a different

method in the review.

44 For that purpose, it must first be examined whether the institutions concerned have demonstrated that the circumstances had changed in the

present case.

45 In regard to the contested regulation, it should be recalled that recital (128) in the preamble to that regulation states:

‘The calculation method used by the companies, similar to the one used in the original investigation, was found to not reflect the actual

import level of duties borne by the like product. It was therefore not in line with the requirements of Article 2(10)(b) of the basic Regulation

and had to be rejected …’

46 However, that recital does not indicate, any more than the other recitals in the preamble to the contested regulation, what the change in

circumstances was, as required by Article 11(9) of the basic regulation, which, where appropriate, could have justified the application, in the

contested regulation, of a method different to that used in Regulation No 2852/2000. No provision of the contested regulation indicates what

change in circumstances had taken place.

47 In regard to the administrative procedure, it should be borne in mind that, in the final disclosure document sent to the applicant on 30

November 2004 (see paragraph 12 above), the Commission did not mention any change in circumstances linked to the comparison

between the export price and the normal value. In the Commission’s response of 16 February 2005 (see paragraph 15 above) to the

applicant’s observations of 30 December 2004 on the final disclosure document, the Commission rejected the applicant’s request for use of

the method which had been applied in the initial investigation on the grounds that the ‘method used by the Commission’s services in the

present review [was] in line with Article 2(10)(b) of the basic regulation, and should therefore be considered valid in the present case’. It

should be noted that that response from the Commission contains no explanation as regards a possible change in circumstances and

confines itself to relying on the legality of the new method used in the course of the review.

48 At the hearing, in reply to a question put by the Court, the Council indicated that the change of circumstances, within the meaning of Article

11(9) of the basic regulation, related to the fact that the institutions ‘[had become] aware that what was appropriate during the initial

investigation was no longer appropriate.’ Such an assertion is not sufficient to justify the use of a different method, since a change of opinion

is not equivalent to a change in circumstances. The possibility that the method used in the initial investigation ‘did not reflect the real level of

import duties borne by the like product’ does not constitute a change in circumstances but concerns whether that method complies with

Article 2 of the basic regulation.

49 It must therefore be stated that the institutions concerned have not demonstrated the existence of a change in circumstances within the

meaning of Article 11(9) of the basic regulation. That being so, it is still necessary to examine whether the requirement of compliance with

Article 2 of the basic regulation precluded application of the ‘input’ method and justified application of the residual method.

50 As the Commission correctly stated at the hearing, Article 11(9) of the basic regulation must be read in conjunction with Article 2 of that

regulation, the requirements of which must be complied with. Thus, if, during the review, it was proved that the use of the ‘input’ method,

applied in the initial investigation in Regulation No 2852/2000, had not been consistent with Article 2(10)(b) of the basic regulation, the

institutions would have been obliged not to use that method any longer. In order to justify a change in methodology, it is not sufficient that a

new method be more appropriate than the former method, assuming always that the former method is consistent with Article 2 of the basic

regulation.

51 In that regard, it is for the institutions concerned to demonstrate that the ‘input’ method was not consistent with Article 2(10)(b) of the basic

regulation.

52 As has been noted above, recital (128) in the preamble to the contested regulation states:

‘The calculation method used by the companies, similar to the one used in the original investigation, was found to not reflect the actual

import level of duties borne by the like product …’.

53 Although, in the final disclosure document of 30 November 2004 (see paragraph 12 above), it is true that the Commission indicated that the

amount claimed by the applicant was higher than the total amount of duty borne by the like product, it must nevertheless be noted that that

statement concerned only the amount resulting from the application of the advantage method, that is to say, the method which the applicant

had requested be applied in its response to the Commission’s questionnaire of 11 March 2004 (see paragraph 10 above). By contrast, in

that final disclosure document the Commission did not set out any grounds establishing the unlawful nature of the ‘input’ method, which it

had used in the initial investigation, nor did it explain why it was appropriate, from that point on, to use a new method, namely, the residual

method.

54 It is apparent from the letter of 30 December 2004 (see paragraph 13 above) that the applicant specifically requested application of the

method used in the initial investigation in the event that the Commission would not use the advantage method. The applicant reiterated that

request in its observations of 11 January 2005 (see paragraph 14 above).

55 As stated at paragraph 47 above, in the letter of 16 February 2005 (see paragraph 15 above), the Commission rejected the applicant’s

request for use of the ‘input’ method on the ground that application of the residual method was consistent with Article 2(10)(b) of the basic

regulation and should, therefore, be considered valid. It must be noted that such a statement does not demonstrate in what respect the

‘input’ method was not consistent with that provision in the present case.

56 In its written pleadings before the Court, the Council justified not using the ‘input’ method again by the fact that that method ‘did not always

allow a fair comparison’. At the hearing, in reply to a question from the Court, the Council explained that the ‘input’ method could ‘in certain

cases’ lead to the granting of an adjustment greater than the cost borne by the product sold on the domestic market and that it appeared, in

the present case, that an adjustment had been made for costs which were, in reality, not borne by the like product sold on the domestic

market. Thus, according to the Council, that method can sometimes lead to higher adjustments which take account of duties actually paid

but which have been reimbursed. The Commission confirmed that the ‘input’ method might indeed lead to an adjustment higher than the

cost borne.

57 In the present case, however, neither the Commission nor the Council has specifically demonstrated that the use of the ‘input’ method had

actually led to overcompensation.

58 Consequently, it must be stated that none of the explanations provided by those institutions demonstrates that, in the present case, the

application of the same method as that used in the initial investigation, that is to say, the ‘input’ method, at the time of the examination which

led to the imposition of an anti­dumping duty rate of 5.7% for the applicant, had not been consistent with Article 2(10)(b) of the basic

regulation.

59 It must be held that neither the Commission nor the Council has demonstrated, either at the administrative procedure stage or in the contested

regulation, that the method used in the initial investigation infringed Article 2(10)(b) of the basic regulation.

60 It follows that the institutions concerned have infringed Article 11(9) of the basic regulation in so far as they did not apply the same method in

the review as that which they had used in the initial investigation.

61 In those circumstances, there is no need to examine the applicant’s other pleas and arguments concerning the unlawfulness of the method for

calculating the adjustment for import charges and indirect taxes.

62 It follows that the contested regulation must be annulled to the extent to which the institutions concerned applied a different calculation

methodology to that applied in the initial investigation with regard to the adjustment for import charges and indirect taxes.

63 The applicant’s line of argument concerning the alleged unlawfulness of the rejection of the credit cost adjustment must still be examined.

The unlawful nature of the rejection of the credit cost adjustment

Arguments of the parties

64 The applicant claims that the institutions concerned infringed Article 2.4 of the 1994 Anti­dumping Code and the principle of sound

administration by rejecting its claim for a credit cost adjustment for domestic sales, as provided for in Article 2(10)(g) of the basic regulation.

65 The credit costs which the applicant relies on result from the use of the open account system, in accordance with the customary rules in force

in Korea, under which deliveries take place throughout the month but invoices are issued only at the end of the month. It is only at that point

that the revenue is recorded in the applicant’s accounting books. In that way, customers thus enjoy an average credit period of 15 days, to

which is added, in accordance with commercial practice in Korea, a further period of 30 days from the date on which the invoice was issued,

namely, a total credit period of 45 days on average. It is on the basis of that period that the applicant claimed an adjustment, calculated

according to the following formula: turnover multiplied by 45 days ÷ 365 days multiplied by the short­term borrowing interest rate.

66 The applicant asserts that the conclusion of the institutions concerned, set out in recital (129) in the preamble to the contested regulation, that,

by using an open account system, the producers did not grant specific credit periods and the credit period could not be accurately

determined, since payments could not be linked to specific invoices, is incorrect. As deferral of payment may be agreed orally on the basis

of customary rules in force in Korea, written evidence of the periods allowed is not required and the rejection of the credit cost adjustment on

that ground alone is contrary to the principle that there should be a fair comparison between the export price and the normal value set out in

Article 2.4 of the 1994 Anti­dumping Code. To carry out such a comparison, differences which affect price comparability should have been

taken into account, which include payment periods agreed with the applicant’s customers in the domestic market in accordance with the

customary rules in force in Korea.

67 Moreover, during the verifications carried out by the Commission at the applicant’s premises, the latter provided the Commission with

documentary evidence showing that an average credit period of 45 days had been granted to its customers. First, it thus provided the

institutions concerned with evidence proving that, for a randomly selected domestic sale bearing No 1923 on the list of domestic sales, the

credit period granted was 42 days, including 30 days granted for payment upon issue of the invoice, to which is added the period resulting

from the time differential between the delivery date and the date of the invoice. Second, in its observations of 30 December 2004 on the final

disclosure document, the applicant showed that, for 10 transactions selected by the Commission during the verification visit, the average

period resulting from the time differential between the date of the invoice and the delivery date was 14.5 days. The applicant claims that the

institutions concerned refused to take that additional evidence into account.

68 Lastly, according to the applicant, the fact that the institutions concerned refused to take account of evidence, other than written evidence,

linking payments to specific invoices imposes an unreasonable burden of proof on the applicant, which is not imposed either by Article 2.4 of

the 1994 Anti­dumping Code or by the basic regulation, and which breaches, moreover, the principle of sound administration. In addition, in

its reply, the applicant claims that the Commission failed to indicate to it during the investigation what information was necessary to be able

to carry out a fair comparison, thereby infringing Article 2.4 of the 1994 Anti­dumping Code.

69 The Council, supported by the Commission, disputes the applicant’s interpretation of Article 2(10)(g) of the basic regulation and of Article 2.4

of the 1994 Anti­dumping Code.

Findings of the Court

70 The applicant claims that the institutions concerned infringed Article 2.4 of the 1994 Anti­dumping Code and the principle of sound

administration in rejecting its request for a credit cost adjustment for sales on the domestic market, as provided for in Article 2(10)(g) of the

basic regulation.

71 It must be recalled at the outset that, according to settled case­law, having regard to their nature and structure, the WTO Agreements are not

in principle among the rules in the light of which the Community Courts are to review the legality of measures adopted by the Community

Petrotub and Republica Council Biret

institutions (Case C­76/00 P v [2003] ECR I­79, paragraph 53; Case C­93/02 P

International Council Ikea Wholesale,

v [2003] ECR I­10497, paragraph 52; and paragraph 29).

72 It is only where the Community intended to implement a particular obligation assumed in the context of the WTO, or where the Community

measure refers expressly to the precise provisions of the WTO Agreements, that it is for the Community Courts to review the legality of the

Portugal Council

Community measure in question in the light of the WTO rules (Case C­149/96 v [1999] ECR I­8395, paragraph 49;

Petrotub and Republica Council, Biret International Council, Ikea Wholesale,

v paragraph 54; v paragraph 53; and

paragraph 30).

73 In the present case, the Community adopted the basic regulation in order to meet its international obligations arising from the 1994 Anti­

Republica Council,

dumping Code (Petrotuband v paragraph 56). Furthermore, by means of Article 2(10) of the basic regulation, it

intended to implement the particular obligations laid down by Article 2.4 of that code. To that extent, it is for the Court to review the legality

Petrotub and Republica

of the contested regulation in the light of that latter provision (see, to that effect, v Council, paragraph 56).

74 Thus, in order to assess the validity of the contested regulation, it is necessary to examine the interpretation by the institutions concerned of

Article 2(10)(g) of the basic regulation in the light of Article 2.4 of the 1994 Anti­dumping Code.

75 Pursuant to Article 2(10)(g) of the basic regulation, an adjustment is made on the basis of the differences in credit costs for the relevant sales,

provided that that factor is taken into account in determining the prices charged.

76 It should be borne in mind that adjustments may not be made automatically; it is for the party which seeks to benefit from them to prove that

Nachi Fujikoshi Council Acme Council

they are justified (Case 255/84 v [1987] ECR 1861, paragraph 33; Case T­48/96 v [1999]

ECR II­3089, paragraph 133). That follows from Article 2(10) of the basic regulation and from Article 2.4 of the 1994 Anti­dumping Code,

both of which refer to differences which are shown to affect the prices and, therefore, their comparability.

77 In contrast to Article 2(10) of the basic regulation, Article 2.4 of the 1994 Anti­dumping Code states that the ‘authorities shall indicate to the

parties in question what information is necessary to ensure a fair comparison and shall not impose an unreasonable burden of proof on

those parties’. Those requirements are not expressly restated in Article 2(10) of the basic regulation. However, they form part of the general

principles of Community law and, in particular, of the principle of sound administration, also set out in Article 41 of the Charter of

Fundamental Rights of the European Union, proclaimed at Nice on 7 December 2000 (OJ 2000 C 364, p. 1). Thus, it is for the Court to

determine whether the institutions have taken account of those requirements in their application of Article 2(10)(g) of the basic regulation.

78 It follows from the foregoing that it is for the party claiming an adjustment under Article 2(10)(g) of the basic regulation to demonstrate, first,

that a credit has been granted and, second, that it affects the prices and their comparability. By contrast, it is for the institutions to indicate to

that party what information is necessary and not to impose on it an unreasonable burden of proof.

79 In the present case, in its response to the Commission’s questionnaire (see paragraph 10 above), the applicant indicated that it granted, in

general, a 30­day credit period to its customers but that, like the majority of Korean companies, it relied on the open account system to

manage the outstanding payments due to it. It added that, given that invoices were normally issued at the end of each month even though

the deliveries had taken place throughout the month, an additional credit period of, on average, 15 days was allowed. The applicant

indicated that, as a consequence, it had taken account of a credit period of 45 days to calculate the credit costs for domestic sales.

80 In the final disclosure document of 30 November 2004 (see paragraph 12 above), the Commission stated that, in general, in that type of

system, exporting producers did not really grant a specific credit period and that, furthermore, it was not possible to determine that period

precisely, since the amounts paid could not be linked to specific invoices. The Commission indicated that, in those circumstances, it had not

been able to grant an adjustment.

81 In its observations of 30 December 2004 (see paragraph 13 above) on the final disclosure document of 30 November 2004, the applicant

limited itself to repeating that the credit period which it normally granted was 30 days, without, however, providing any evidence in that

regard. It simply admitted that, having regard to the open account system, it was difficult to show the exact payment for each transaction.

The applicant also stated that, even if it could not provide such evidence, it took account of the credit costs in determining prices.


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DESCRIZIONE DISPENSA

La dispensa fa riferimento alle lezioni di Diritto Internazionale, tenute dalla Prof. ssa Alessandra Lanciotti nell'anno accademico 2011.
Il documento riporta il testo in inglese della sentenza del Tribunale di Primo Grado del 2008 relativa al caso Huvis. Parole chiave: dumping, importazione di poliestere dalla Corea, discriminazione.


DETTAGLI
Corso di laurea: Corso di laurea magistrale in giurisprudenza
SSD:
Università: Perugia - Unipg
A.A.: 2011-2012

I contenuti di questa pagina costituiscono rielaborazioni personali del Publisher Atreyu di informazioni apprese con la frequenza delle lezioni di Diritto Internazionale e studio autonomo di eventuali libri di riferimento in preparazione dell'esame finale o della tesi. Non devono intendersi come materiale ufficiale dell'università Perugia - Unipg o del prof Lanciotti Alessandra.

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