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Published online by Cambridge University Press: 21 July 2009
In order to protect European industries against dumped imports from countries which are not members of the EEC, the Community authorities may impose anti-dumping duties. The relevant rules are laid down in Council Regulation 2176/84 and are based on the General Agreement on Tariffs and Trade (GATT) and the GATT Anti-Dumping Code. The European Commission is responsible for investigating cases; it is empowered to impose provisional anti-dumping duties or to accept so-called “price undertakings” offered by the exporters to raise their prices. These price undertakings purport to eliminate the dumping, i.e., generally speaking, the difference between domestic and export price, or its injurious effects. They are advantageous for the exporters since the price increase goes to them rather than to the custom authorities in the form of a duty.
1. L201 Official Journal European Communities (30 July 1984) As from 5 August 1988 Regulation 2176/84 was replaced by Regulation 2423/88, L209 O J. Eur.Comm. (2 August 1988). Regulation 2423/88 introduces some amendments concerning the calculation of the dumping margin. Also, it tries to ensure that anti-dumping duties achieve their aim of raising prices and are not nullified by the exporter bearing the cost of the duty. In these circumstances additional duties can be imposed.
2. Case 258/84, Nippon Seiko KK v. Council; Judgement of 7 May 1987, not yet reported.
3. See Vandoren, The Interface between Anti-Dumping and Competition Law and Policy in the European Community, 2 Legal Issues of European Integration 1–16 (1986).
4. E.g., Photocopiers from Japan, L239 OJ.Eur.Comm. (26 August 1986).
5. L167 O.J.Eur.Comm. (26 June 1987).
6. Regulation 2658/87 of 23 July 1987 (L256 O J-Eur.Comm., September 1987) introduces the combined nomenclature which replaces the EC's previous common customs tariff nomenclature (or classification system) and its statistical nomenclature (Nimexe). Part I contains preliminary provisions, including the Rules of Interpretation. Part n consists of the schedule of customs duties for thousands of products.
7. Without knowing the background of the case, one may question the relevance of the preliminary questions put to the EC Court by the Hessische Finanzgericht in Brother International GmbH v. Hauptzollamt Giessen, Case 26/88, C45 OJ.Eur.Comm. (18 February 1988). Basically, the national court wants to know (i) whether mere assembly (screwdriver operation) is determinative of the origin of a product under Art. 5 of Regulation 802/68 and, if so, (ii) whether under Art. 6 of Regulation 802/68 the resulting “diversion” of the export justifies the presumption that the sole object was to circumvent the existing anti-dumping duties. If the EC Court answers bolh questions affirmatively, a product assembled in Germany would be regarded as originating in Japan. However, it is submitted that such a finding will not subject the product to the anti-dumping duties.
8. The EC Court has denied the direct applicability of GATT-provisions; see: Petersmann, E.U.Application of GATT by the Court of Justice of the European Community, 20 Common Market Law Review 397–437 (1983). However, it is submitted that the Court could review the legality of the amendment in light of the fundamental principle of equality of treatment (in proceedings brought under Art. 173 or 177 of the Treaty).Google Scholar
9. For a detailed analysis and criticism see: Glashoff, Anlidumpingzoll auf in der Europäische Wirtschaftsgemeinschaft montierte oder hergestellte Waren, Heft 10 R.I.W. 774–785 (1987).Google Scholar
10. L101 OJ.Eur.Comm. (20 April 1988).
11. Electronic Typewriters, L123 O J.Eur.Comm. (17 May 1988); L183 O J.Eur.Comm. (14 July 1988) and Electronic Scales, L189 OJ.Eur.Comm. (20 July 1988).
12. C44 OJ.Eur.Comm. (17 February 1988).
13. C150OJ.Eur.Comm. (8 June 1988).
14. It is not in every case that parallel actions are instituted and the proposal could have provided that the CFI shall be competent to entertain state aid cases brought by “individuals” unless the member state also brings action in which event the matter shall be referred by the CFI to the EC Court.
15. Fediol v. Commission, 1983 E.C.R. 191/82,2913; Timex v. Commission, 1985 E.C.R. 264/82,849.
16. Allied Corp. v. Commission, 1984 E.C.R. 239 and 275/82,1005.
17. Allied Corp., supra, note 16, at 1031.
18. Especially the French government also held that case law is undeveloped, making the transfer of jurisdiction too sensitive. However, a number of cases concerning various issues have in the past years been decided by the EC Court and several cases are currently pending before it, such as the Electronic Typewriter cases (e.g. Cases 260/85 and 106/86), the Photocopier Cases (e.g. Case 133/87) and the Electronic Scales Case (Case 196/86). A CFI consisting of competent judges, together with the appellate review of the EC Court, should be able to handle future matters.
19. Nippon Seiko KK, supra, note 2; Cases 187 and 188/85, Fediol v. Commission, Judgement of 14 July 1988, not yet reported.
