08 June 2015

ADD – Inclusion of non-cooperating producers in Domestic industry

European Union’s Court of Justice has upheld the investigation authority’s conclusion of including non-cooperating domestic manufacturers in the definition of domestic industry for the purpose of injury analysis. Further, noting that provisions under Article 4(1) of the EU’s Basic Regulations [Definition of ‘domestic industry’ as available in Rule 2(b) of the Indian ADD Rules] provided for two options, the court was of the view that institutions enjoy a broad discretion as regards the choice between the two options, and that wording of the said provision does not mean that all EU producers must cooperate in order for the authorities to consider the domestic industry as all the EU producers of the like product. It was also held that EU industry (domestic industry) for the purposes of determining injury does not necessarily have to comprise the same EU producers as those taken into consideration in order to ascertain whether the original complaint or the request for a review enjoyed sufficient support. The court in its decision dated 20-5-2015 also observed that the definition of EU (domestic) industry in context of injury determination [EU producers as a whole of the like product] serves as a basis for examining the economic situation of all the producers concerned.
Appellant’s (exporter) argument that the EU authorities should exclude, for the purposes of the injury analysis, the producer which did not manufacture the like product during or after the investigation period, was also rejected by the court. Noting that Article 4(1) does not contain details as to the period during which an EU producer must have manufactured the like product in order to be included in the EU industry for the purposes of injury assessment, the court was of the view that inclusion of all available data relating to the period considered, including that of producers which had ceased their production during that period, in order to obtain a reliable representation of the economic situation of the industry, is compatible with the objective of the first option referred to in Article 4(1).

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