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1. Pursuant to this Regulation, the term ‘injury’ shall, unless otherwise specified, be taken to mean material injury to the Union industry, threat of material injury to the Union industry or material retardation of the establishment of such an industry and shall be interpreted in accordance with the provisions of this Article.

2. A determination of injury shall be based on positive evidence and shall involve an objective examination of:

(a) the effect of the sale at less than normal value on prices in the Union market for like vessels; and (b) the consequent impact of that sale on the Union industry.

3. With regard to the effect of the sale at less than normal value on prices, consideration shall be given to whether there has been significant price undercutting by the sale at less than normal value as compared with the price of like vessels of the Union industry, or whether the effect of such sale is otherwise to depress prices to a significant degree or prevent price increases, which would otherwise have occurred, to a significant degree. No one or more of those factors can necessarily give decisive guidance.

4. Where sales of vessels from more than one country are simultaneously subject to injurious pricing investigations, the effects of such sales shall be cumulatively assessed only if it is determined that:

(a) the margin of injurious pricing established in relation to the purchases from each country is more than de minimis as defined in Article 7(3); and (b) a cumulative assessment of the effects of the sales is appropriate in the light of the conditions of competition between vessels sold by non-Union shipbuilders to the buyer and the conditions of competition between such vessels and the like Union vessels.

5. The examination of the impact of the sale at less than normal value on the Union industry concerned shall include an evaluation of all relevant economic factors and indices having a bearing on the state of the industry, including the fact that an industry is still in the process of recovering from the effects of past dumping, injurious pricing or subsidisation; the magnitude of the actual margin of injurious pricing; actual and potential decline in sales, profits, output, market share, productivity, return on investments and utilisation of capacity; factors affecting Union prices; actual and potential negative effects on cash flow, inventories, employment, wages, growth, ability to raise capital or investments. This list is not exhaustive, nor can any one or more of these factors necessarily give decisive guidance.

6. It must be demonstrated, from all the relevant evidence presented in relation to paragraph 2, that the sale at less than normal value is causing, or has caused, injury within the meaning of this Regulation. Specifically, that shall entail demonstrating that the price levels identified pursuant to paragraph 3 are responsible for an impact on the Union industry as provided for in paragraph 5, and that that impact exists to a degree which enables it to be classified as material.

7. Known factors, other than the sale at less than normal value, which at the same time are injuring the Union industry shall also be examined to ensure that the injury caused by those other factors is not attributed to the sale at less than normal value under paragraph 6. Factors which may be considered in that respect shall include: the volume and prices of sales by shipbuilders of countries other than the exporting country not realised at less than normal value; contraction in demand or changes in the patterns of consumption; restrictive trade practices of, and competition between, third country and Union producers; developments in technology; and the export performance and productivity of the Union industry.

8. The effect of the sale at less than normal value shall be assessed in relation to the production of the Union industry of like vessels when available data permit the separate identification of that production on the basis of criteria such as the production process, producers' sales and profits. If such separate identification of that production is not possible, the effects of the sale at less than normal value shall be assessed by examination of the production of the narrowest group or range of vessels, which includes the like vessel, for which the necessary information can be provided.

9. A determination of a threat of material injury shall be based on facts and not merely on allegation, conjecture or remote possibility. The change in circumstances which would create a situation in which the sale at less than normal value would cause injury must have been clearly foreseen and must be imminent. In making a determination regarding the existence of a threat of material injury, consideration should be given to factors such as:

(a) whether there is sufficient freely disposable capacity on the part of the shipbuilder or an imminent and substantial increase in such capacity indicating the likelihood of substantially increased sales at less than normal value, account being taken of the availability of other export markets to absorb any additional exports;

(b) whether vessels are being exported at prices that would, to a significant degree, depress prices or prevent price increases which otherwise would have occurred, and would probably increase demand for further purchases from other countries. No one of the factors listed above by itself can necessarily give decisive guidance, but the totality of the factors considered shall be such as to lead to the conclusion that further sales at less than normal value are imminent and that, unless protective action is taken, material injury will occur.