Brazil's allegation that the EC failed to exercise its discretion Sample Clauses

Brazil's allegation that the EC failed to exercise its discretion. 300. Brazil argued that there was an important distinction between failing to effectively exercise a discretionary power and exercising it incorrectly. The Agreement established an obligation for anti- dumping authorises to ensure a fair comparison between normal value and export price, and this included the obligation to take into account distortions arising from temporary exchange rate fluctuations, especially in the context of proceedings concerning exports from developing countries. Anti-dumping authorities exercised discretion in how they fulfil these duties. Brazil argued that in this proceeding, the EC effectively failed to exercise its discretion by taking the view that the existence of "exchange dumping" was simply irrelevant to its determinations, even in relation to a developing country. According to the EC, the exchange rates at issue could not be the "subject of appreciation". In taking this position, the EC had infringed the Agreement. Such infringement in itself was sufficient for a recommendation of withdrawal of the measures, without it being necessary to reach any conclusions on the facts of the case. However, should it be considered that the EC did exercise its discretion, Brazil additionally believed that, given the facts, the course of action taken by the EC was so clearly erroneous, that it also infringed the Agreement. The position taken by the EC in this case effectively nullified the two most important principles applicable to this proceeding: the requirement that a fair comparison be made between normal value and export price and the requirement that special account be taken of the position of developing countries.