Dumping must be distinguished from simple practices of low-price sales resulting from lower costs or greater productivity. The key criterion in this respect is not, in fact, the relationship between the price of the exported product and that on the market of the country of import, but the relationship between the price of the exported product and its normal value. Thus, a product is considered to be dumped if its export price to the Community is less than the comparable price for a like product established in the ordinary course of trade within the exporting country.
The normal value to be taken into account to determine if there is dumping is usually based on the prices paid or payable, in the ordinary course of trade, by independent customers in the exporting country.
However, where the exporter in the exporting country does not produce or does not sell a like product, the normal value may be established on the basis of prices of other sellers or producers. In addition, when there are no or insufficient sales of the like product in the ordinary course of trade (for example, sales by a company with a monopoly) or where because of the particular market situation such sales do not permit a proper comparison, the normal value may be calculated on the basis of the cost of production in the country of origin.
In the case of imports from non-market economy countries, the normal value is determined on the basis of the price or constructed value in a market economy third country, or the price from this country to other countries, or where those are not possible, on any other reasonable basis.
The second basis of comparison, the relationship with the normal value in the country of origin which determines the dumping margin, is the export price. This is the price actually paid or payable for the product when sold for export to the Community.
In cases where there is no export price or where the price is set under an association or a compensatory arrangement between the exporter and the importer or a third party, any reference to the export price becomes impossible. It may thus be constructed on the basis of the price at which the imported products are first resold to an independent buyer, or, if the products are not resold to an independent buyer, or are not resold in the condition in which they were imported, on any reasonable basis. In these cases, adjustments are made to take account of all costs incurred between importation and resale as well as for profits accruing.
The dumping margin is the amount by which the normal value exceeds the export price. The comparison is made between sales at the same commercial stage and on dates which are as close to each other as possible. The necessary adjustments are made to take account of differences in sales conditions, taxation and other differences which affect price comparability.
The application of any anti-dumping duty presupposes the presence of a second key element: significant injury to a Community industry, be it injury caused to an industry established in the Community, the threat of injury or substantial retardation of the establishment of such an industry.
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