Case T-143/06

MTZ Polyfilms Ltd

v

Council of the European Union

(Dumping – Imports of polyethylene terephthalate film originating in India – Regulation terminating an interim review – Minimum import price undertakings – Determination of the export price – Application of a methodology different from that used in the initial investigation – Choice of legal basis – Article 2(8) and (9) and Article 11(3) and (9) of Regulation (EC) No 384/96)

Summary of the Judgment

Common commercial policy – Protection against dumping – Review of factors justifying imposing anti-dumping duties – Methodology for determining the export price

(Art. 5 EC; Council Regulation No 384/96, Arts 2(8) and (9) and 11(3) and (9))

It is not provided in Article 11(3) of the basic antidumping regulation (Regulation No 384/96) that the Council has the power in an initial review to use a methodology for the determination of the export price which is incompatible with the requirements laid down in Article 2(8) and (9) of the basic regulation, by referring to the need to make a prospective assessment of the prices charged by the exporters concerned. It is clear from Article 11(9) of the basic regulation that, as a general rule, in a review, the institutions are required to apply the same methodology, including the method of determining the export price under Article 2(8) and (9) of the basic regulation, as that used in the initial investigation which led to the imposition of the anti-dumping duty.

The same provision contains an exception whereby the institutions may apply a methodology other than that used in the initial investigation only where the circumstances have changed, an exception which must however be interpreted strictly. Furthermore, it is clear from Article 11(9) of the basic regulation that the methodology applied must take account of the provisions of Articles 2 and 17 of the basic regulation.

Moreover, the practical effect of Article 11(3) of the basic regulation is broadly ensured by the fact that when assessing the need to continue existing measures the institutions have a wide discretion, which includes the option of carrying out a prospective assessment of the pricing policy of the exporters concerned. However, once the institutions have assessed that need and decided to amend the existing measures, they are bound, when determining the fresh measures, by the provision in Article 11(9) of the basic regulation which confers on them the express power and obligation to apply the methodology prescribed by Article 2 of that regulation.

It follows, first, that when the institutions are determining the export price, their alleged power to carry out prospective analyses is not necessary to ensure the practical effect of Article 11(3) of the basic regulation, and indeed is ruled out by Article 11(9) of the same regulation, and, second, that the implicit power which supposedly stems from Article 11(3) could not override the express powers provided for by Article 11(9), read with Article 2 of the basic regulation. Consequently, Article 11(3) of the basic regulation cannot serve as a legal basis allowing the institutions, when determining the export price, not to apply the methodology prescribed by Article 2(8) and (9) of the basic regulation.

(see paras 41-42, 45, 48-51)