Judgment — ECLI:EU:T:1997:209
Date: 1997-12-18
Language of the case: English
Court formation: Fifth Chamber, Extended Composition
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Dumping;External relations;Commercial policy
Concepts: Statement of reasons;Pleas in law;Anti-dumping and anti-subsidy measures;Rights of the defence and procedural guarantees
Procedure: Action for annulment - unfounded

summary dated 13 December 1989of HSC's request for the adoption of protection measures, to the non-confidentialsummary dated 9 April 1990 of the submissions lodged by HSC, and to the non-confidential summary dated 28 August 1990 of a letter from HSC. NSC alsocomplained that the information contained in those summaries was inadequate. The Commission replied by fax of 4 February 1991, stating that it had initiated aproceeding on the basis of a complaint which it had passed on to the applicant atthe beginning of the proceeding. With regard to its findings, it referred to itsregulation imposing provisional duties. On 5 February 1991 NSC's representatives and the Commission met to discuss theCommission regulation. On 7 February 1991 the applicants offered certain undertakings. On 22 March 1991 the Commission sent its disclosure letter to the applicants. Thereasons for which it intended to recommend the imposition of a definitive anti-dumping duty were set out in that letter. The letter in question contained the same information as that contained in theCommission regulation. By contrast with that regulation, however, it gave figuresfor the calculation of the dumping margin and the losses suffered by NSAG on itssales within the Community, and also included a breakdown, under ten headings,of the production costs used in order to calculate the reference price. The itemsunder each heading were expressed as a percentage of the total costs, within a 10%bracket. The letter also stated that the Commission had determined the normal value ofJapanese aspartame on the basis of the prices charged on the United Statesmarket, not because of any lack of cooperation on the part of Ajico, as indicatedin the Commission regulation, but because the criteria for using Japanese marketprices, as laid down in Article 2(6) of the basic regulation, were not fulfilled. Lastly, the letter contained: a statement concerning the job losses which would result from the cessationof Community production; various remarks concerning the impact of the anti-dumping duties ondemand; a statement to the effect that the production costs of HSC used incalculating the reference price had been adjusted to exclude certain costswhich were not related to sales in the Community; the reasons for which a profit margin of 8% had been applied. On 25 March 1991 the Council adopted Regulation (EEC) No 792/91 extending theprovisional anti-dumping duty on imports of aspartame originating in Japan and theUnited States of America (OJ 1991 L 82, p. 1). On 2 April 1991 NSC requested the Commission to consider two other possibleundertakings. On the same day it submitted its observations on the disclosure letter of 22 March1991 (see paragraph 25 above), complaining that the details which it had beengiven concerning the information provided by HSC were inadequate. It alsocomplained that the Commission had failed to disclose to it any meaningful factsor figures concerning the margin of injury, and that it had provided it with hardlyany of the information used to determine the reference price. It stated that thepercentage bracket system used in disclosing HSC's cost structure provided noindication as to how the injury threshold had been calculated. Ajico also submittedits written observations on 2 April 1991, in which it adopted those submitted byNSC and requested that its comments be treated as confidential. The Commission replied to those letters on 18 April 1991, stating that it haddisclosed all the information which it was permitted to disclose. It further statedthat the start-up costs had been excluded from the calculation, with the exceptionof two items which were written off in accordance with Netherlands law, and thatlegal fees had been totally excluded from the calculation. Lastly, it denied that thereference price had been artificially inflated, and emphasized the connectionbetween, on the one hand, the costs involved and, on the other, the operatingcapacity and size of the plant. By letter of 7 May 1991 the Commission set out the reasons for which it was unableto accept the undertakings offered. On 15 May 1991 NSC sent to the Council its observations on that letter. Itcontested the Commission's reasoning. By Regulation (EEC) No 1391/91 of 27 May 1991 imposing a definitiveanti-dumping duty on imports of aspartame originating in Japan and the UnitedStates of America (OJ 1991 L 134, p. 1, hereinafter 'the Council regulation or'the contested regulation), the Council imposed a definitive anti-dumping duty ofECU 27.21 per kilogram on imports of aspartame originating in Japan andECU 25.15 per kilogram on those originating in the United States of America. That regulation was subsequently repealed by Council Regulation (EC) No 1936/95of 3 August 1995 (OJ 1995 L 186, p. 8). The anti-dumping regulations in issue 1. General remarks The anti-dumping regulations in issue in the present case impose an anti-dumpingduty calculated on the basis of injury and not on the basis of the dumping margin. The Community institutions found that the United States and Japanese exportershad engaged in dumping practices. The dumping margin was calculated bycomparing the price at which the United States producer sold aspartame on theUnited States market with that charged by it in the Community (points 12 to 32 inthe preamble to the Commission regulation and points 8 to 25 in the preamble tothe Council regulation). 2. The Commission regulation In its assessment of injury, the Commission states that the Community market foraspartame increased by 215% between 1986 and 1989 (point 34 in the preambleto the Commission regulation), and that, even though the appearance of HSC in1988 led to a diminution in the market shares of the United States and Japaneseexporters, imports from the United States and Japan nevertheless increased inabsolute terms (point 37). Moreover, the Japanese and United States prices, whichwere already significantly below the Community producer's prices in 1988,decreased still further (point 39). The United States and Japanese prices undercutthe prices of the Community producer during the investigation period (point 40),forcing the latter to sell at a loss and preventing it from increasing its capacityutilization to an adequate extent, thereby increasing its production costs andcausing it, at the same time, to suffer considerable losses (point 45). The loweringof NSAG's export prices coincided with the appearance of the complainant on theCommunity market (point 45). Given the evolution of the Community aspartamemarket, which had expanded considerably, there was no obvious reason for NSAG,which even after 1987 remained by far the most important supplier of aspartameto the Community market, to drop its prices to levels which did not cover costs(point 47). The decision to drop prices to loss-making levels was clearlyattributable to NSAG and the United States and Japanese exporters (point 49). The investigation revealed no other factors which might have caused significantinjury (point 50). The anti-dumping duty was imposed in order to cover the difference between theJapanese and United States prices and the minimum price required for theCommunity industry to cover its costs and to make a reasonable profit (point 63). That profit margin was fixed at 8% of turnover before tax (point 65). Thatminimum price, known as the 'reference price, was compared with the weightedaverage price of imports into the Community (point 65). 3. The Council regulation In its regulation imposing a definitive duty, the Council essentially confirms theconsiderations and findings of the Commission. As regards the calculation of thereference price used to determine injury, the Council states (in point 44 of thepreamble): 'the Commission had to take account of the fact that some of the rawmaterials and services were purchased from a related company and that some costsdid not relate to sales of aspartame in the Community. Actual research anddevelopment costs have now been included as well as direct selling costs. Theseadjustments lead to lower costs of production as a basis for the calculation of thereference price and thus the amount of the duty necessary to eliminate the injury. For the assessment of a reasonable profit margin, the Council took into account thefollowing elements: the fact that the Community producer was just getting beyondits start-up period, the uncertainty about the evolution of future sales and thepossibility of the development of substitute products, which could shorten the life-cycle of the product concerned (point 45). As regards the parties' right to a fair hearing, the Council observes (in point 7): 'The Commission has disregarded all studies and submissions for which nomeaningful non-confidential summary was submitted, since this would havedeprived the other parties of their rights of defence. Judicial procedure By applications lodged at the Registry of the Court of Justice on 6 September 1991,each of the applicants brought an action against the Council regulation. By application lodged at the Registry of the Court of Justice on 6 February 1992,the Commission sought leave to intervene in support of the form of order soughtby the defendant. That application was granted by order of the President of theCourt of Justice of 18 March 1992. By application lodged at the Registry of the Court of Justice on 7 February 1992,HSC, Toyo Soda Nederland BV and DSM Aspartaam BV sought leave to intervenein support of the form of order sought by the defendant. That application waswithdrawn on 21 January 1993. By order of 18 April 1994, the Court of Justice referred the present cases to theCourt of First Instance pursuant to Article 4 of Council Decision 93/350/Euratom,ECSC, EEC of 8 June 1993 amending Decision 88/591/ECSC, EEC, Euratomestablishing a Court of First Instance of the European Communities (OJ 1993L 144, p. 21), as amended by Council Decision 94/149/ECSC, EC of 7 March 1994(OJ 1994 L 66, p. 29). The cases were registered in the Registry of the Court ofFirst Instance under numbers T-159/94 (Ajinomoto v Council) and T-160/94(NutraSweet v Council) respectively and assigned on 2 June 1994 to the FirstChamber. The Judge-Rapporteur was subsequently assigned to the SecondChamber, Extended Composition, and the cases were therefore re-assigned to thatChamber. In consequence of the accession to the European Communities of Austria, Finlandand Sweden, the cases were further re-assigned, on 23 January 1995, to the ThirdChamber, Extended Composition, and a new Judge-Rapporteur was designated. Upon his being thereafter assigned to the Fifth Chamber, Extended Composition,the cases were accordingly re-assigned to that Chamber. Upon hearing the report of the Judge-Rapporteur, the Court of First Instance(Fifth Chamber, Extended Composition) opened the oral procedure. On22 January 1997 it requested the parties, pursuant to Article 64 of the Rules ofProcedure, to reply in writing to various questions concerning the causal linkbetween the dumping and the alleged injury. The applicants were also requestedto provide details of their allegation that their right to a fair hearing had beeninfringed. Having regard to the voluminous nature of those details and the freshlight cast by them, the Court of First Instance authorized the defendant, by letterof 24 March 1997, to submit observations thereon by 9 April 1997. By order of 10 March 1997 the Court of First Instance (Fifth Chamber, ExtendedComposition) joined the two cases, pursuant to Article 50 of the Rules ofProcedure, for the purposes of the oral procedure and of the judgment. The parties presented oral argument and their replies to the Court's questions atthe hearing in open court on 17 April 1997. Forms of order sought by the parties The applicants claim that the Court should: annul the Council regulation in its entirety or, in the alternative, in so faras it applies to each of them; order the restitution of the provisional and definitive anti-dumping dutiescollected pursuant to the Commission regulation and the Council regulation,and the release of any security provided therefor; order the Council to pay the costs; order such other relief as may be lawful or equitable. The defendant contends that the Court should: dismiss the applications; order the applicants to pay the costs. The intervener contends that the Court should dismiss the applications. Substance I  Summary of the pleas advanced The applicants advance six pleas in common against the contested regulation: infringement of essential procedural requirements and of Article 7(4)(a) and(b) of the basic regulation, in that the Community institutions did notprovide them with sufficient information in good time to enable them todefend their interests; infringement of essential procedural requirements and of Articles 7(4)(b)and 8(4) of the basic regulation, in that the Community institutions tookinto account information provided by the Community producer which wasnot summarized in a non-confidential version or accompanied by anadequate statement of the reasons why such information could not beprovided in such summary form; infringement of Article 2(3) of the basic regulation, in that the Communityinstitutions determined normal value on the basis of patent-protected pricescharged in the United States; infringement of Articles 2(1), 4 and 13(2) of the basic regulation, in that theCommunity institutions ignored or misinterpreted the substantial evidenceshowing that the Community producer had not been materially injured; infringement of Articles 2(1) and 4(1) of the basic regulation, in that theCommunity institutions failed to take into account other factors causing theinjury suffered by the Community producer; infringement of Article 13(3) of the basic regulation, in that the Communityinstitutions incorrectly calculated the level of duty needed in order toremove the injury. The applicant in Case T-159/94, Ajinomoto, also raises the following two pleas: infringement of essential procedural requirements and of Article 190 of theTreaty, in that the Community institutions failed, first, to inform theapplicant in good time that it regarded the cooperation afforded by thelatter as inadequate and, second, to give it an opportunity to submit itscomments in that regard; infringement of Article 2(3) and (6) of the basic regulation, in that theCommunity institutions calculated the normal value of Japanese aspartameon the basis of prices in the United States. The applicant in Case T-160/94, NutraSweet, raises the following two pleas inaddition to the common pleas set out above: infringement of essential procedural requirements and of Article 190 of theTreaty, in that the defendant failed to state the reasons for its rejection ofthe undertakings offered by NSC; infringement of the patent rights held by the applicant in the United States,in that normal value was determined on the basis of the applicant'sdomestic market prices. The Court proposes, first, to examine the pleas common to the two cases. II  Pleas common to the two cases The Court considers that the first two common pleas should be examined together. The pleas alleging infringement of essential procedural requirements and infringementof Articles 7(4)(a) and (b) and 8(4) of the basic regulation A  Arguments of the parties According to the applicants, the Community institutions are under a duty to makeall reasonable efforts to provide as much information as possible to undertakingsagainst whom an anti-dumping proceeding is initiated. It is not open to them, therefore, to take refuge behind the argument that theapplicants did not ask sufficiently specific questions. That approach would meanthat the process would involve a constant series of more and more detailedquestions. If Article 7(4)(a) of the basic regulation is not to be rendered meaningless inrelation to Article 7(4)(b), and if the rights of defence of the undertakingsconcerned are not to be infringed, the obligation to provide information must coverall the evidence submitted by third parties in support of their allegations, evenwhere that evidence has been verified by the Community institutions. That obligation to provide information is incumbent on the Community institutionseven before provisional duties are imposed (Case C-49/88 Al-Jubail Fertilizer vCouncil [1991] ECR I-3187, paragraph 15; Article 6(7) of the Anti-Dumping Codeof the General Agreement on Tariffs and Trade, hereinafter 'GATT). Innumerous cases in the past, the Community institutions have disclosed essentialinformation prior to the imposition of such duties; they may, therefore, be boundby that practice (Case C-16/90 Nölle [1991] ECR I-5163). In the present case, the Community institutions infringed Article 7(4)(a) and (b)of the basic regulation, and also the applicants' right to a fair hearing, since theyfailed to provide the applicants in due time with adequate information concerning,first, the allegations and evidence presented by the complainant and, second, thecorrectness and relevance of the facts alleged and the evidence relied on(paragraph 17 of the judgment in Al-Jubail Fertilizer, cited in paragraph 60 above). The information received by the applicants prior to the imposition of provisionalanti-dumping duties (consisting of notice of the initiation of the proceeding, asummary of the complaint and a non-confidential version of the Communityproducer's answers to the Commission's questionnaire) was insufficient to enablethem effectively to present their views on, first, the calculation of the referenceprice, second, the calculation of the dumping margin and, third, the nature andorigin of the injury alleged, notwithstanding their efforts to draw the Commission'sattention, on numerous occasions, to the insufficiency of the information provided(see the letters of 17 April 1990) and the need to organize a hearing (see theletters of 17 April, 28 June and 8 November 1990). Following the adoption of the Commission regulation, the applicants received littleadditional information, particularly concerning the essential issues in the presentcase, namely the reference price and the alleged injury. As regards the reference price, the applicants consider that the Communityinstitutions could have provided a more detailed breakdown of the elementsincluded in that price, and that they could have used narrower percentage ranges,since the reference price in question was calculated on the basis not of HSC'sactual costs, but of its costs as extrapolated from the hypothetical operation of itsfull production capacity. Although the reference price was twice revised, without any reason being given forsuch revision, the Community institutions failed to provide any useful explanationof the assumptions and methods used, in particular, for the purposes of: determining the production capacity of the Community producer and thelevel of utilization of that capacity; establishing that the Community producer, despite being heavily indebted,should have passed break-even point and made an 8% profit within lessthan 18 months of commencing production; attributing the subsidies paid to the Community producer; calculating the rate of depreciation of the plant, property and equipmentused by the Community producer and, in particular, applying a depreciationperiod of ten years; writing off or excluding the extraordinary start-up costs (it was not until theyreceived the letter of 18 April 1991, after the expiry of the period forlodging submissions, that the applicants were informed that the start-upcosts had been excluded from the reference price, with the exception of twoitems which were, in any event, not specified). The applicants also complain that the Community institutions failed to specify: the type of financing costs taken into account and their allocation; the ratio of debt to equity; the selling, general and administrative expenses and investments to whichthe financial costs related, notwithstanding that the composition ofoverheads, administrative expenses and direct selling costs depends on theaccounting system used and the purposes for which the calculation is made; the extent to which raw materials were purchased from related companies;this information would have been helpful for the purposes of determiningthe extent to which the reference price was calculated on the basis ofmarket prices; the extent to which the market development costs borne by NSAG, whichalso benefited the Community producer, were taken into account; the proportion of the overheads paid by the Community producer to DSM. The Community institutions gave no explanation as to why a more detaileddisclosure of the methods used by the Commission might have adversely affectedthe Community producer's business, or, in particular, why narrower percentageranges could not have been used and why it was not possible to disclose thebreakdown of the financing costs, at least in percentage terms. As regards the injury caused to the Community producer, the applicants complainthat the Community institutions failed to state to the requisite legal standard thebasis for their finding that the investigation revealed no factors other than dumpedimports which might have contributed to the injury, despite the fact that theCommunity producer was a start-up company attempting a second entry into ahighly competitive market where prices had been falling steadily since well beforeits arrival in that market, that it was heavily indebted and that its production costswere double those of the applicants. Furthermore, the Community institutions failed to disclose the reasons for theirfinding that the fall in aspartame prices in the Community coincided with thecommencement of production by the Community producer, despite having beenprovided with evidence that prices had been falling steadily since 1983. Similarly, they failed to disclose the basis for the statement that the Communityproducer had gained a relatively small market share; this conflicted with the non-confidential summary of the complaint, which showed that, within 18 months ofcommencing production, the Community producer had gained a significant marketshare. Moreover, the Community institutions infringed the applicants' right to a fairevaluation of the evidence, as established in the judgment in Nölle, cited inparagraph 60 above. The applicants claim that the information provided by the Community institutionsdid not enable them to identify possible errors vitiating the Commission's analysisand to comment effectively on the data on which those institutions based theirfindings. The Community institutions cannot shelter behind their duty to preserve the secrecyof confidential information to such an extent that the right of the undertakingsconcerned to receive information is deprived of its substance (Case 264/82 Timexv Council and Commission [1985] ECR 849, paragraph 29). In order to resolve the conflict between the rights of a person subject toinvestigation and the right of a complainant to the confidential treatment of hisbusiness secrets, and for the purposes of consistency with the principles set out inthe judgments in Timex, cited in paragraph 73 above, and Al-Jubail Fertilizer, citedin paragraph 60 above, the Community institutions must require the submission ofadequate non-confidential summaries in which the information withheld is kept toan absolute minimum. If information is critical to the defence of the party underinvestigation, the Community institutions must disregard that information unless thecomplainant agrees to its being made public. The applicants refer to the relevant case-law establishing the principle that, in thefield of competition law, the Community authority is prohibited from relying, asagainst the undertaking concerned, on facts, circumstances or documents which itcannot in its view disclose if such a refusal of disclosure adversely affects thatundertaking's opportunity to make known effectively its views on the truth orimplications of those circumstances, on those documents or on the conclusionsdrawn by the Commission from them (Case 85/76 Hoffmann-La Roche vCommission [1979] ECR 461, at 512, Case 107/82 AEG v Commission [1983]ECR 3151, at 3192, and Joined Cases 43/82 and 63/82 VBVB and VBBB vCommission [1984] ECR 19, at 60). In order for the principles established in Timexand Al-Jubail Fertilizer to be meaningful, it is necessary that that prohibition shouldapply equally in the context of an anti-dumping proceeding. The institutions are also under a duty, when invoking the argument that they arebound by the obligation to preserve confidentiality, to set out the reasons for whichthe information requested is confidential and cannot be disclosed in non-confidential summaries. In the present case, the Community institutions necessarily relied, directly orindirectly, on some or even all of the allegations made by the Community producer,conducting the investigation on the basis of the information provided by the latter. If the obligation to maintain the confidentiality of information precluded theprovision of an adequate summary of the facts and circumstances alleged by theCommunity producer, the Community institutions should not have used thatinformation, or any other information based thereon, to support their decision. In any event, the conflict between the right to access to the documentation and theduty of confidentiality could have been resolved by resorting to a procedureanalogous to the administrative protective order system operated in the UnitedStates, or the appointment of an independent expert commissioned to draw up anon-confidential summary. Since the applicants were not placed in a position in which they could effectivelycomment on the evidence presented by HSC, on which the Commission regulationand the Council regulation are based, those regulations were adopted in breach ofessential rules of procedure laid down by Community law. Consequently, Articles 1and 2 of the Council regulation should be annulled. The defendant and the intervener contend that the pleas in question should berejected. They maintain, in essence, that the Community institutions fulfilled theirobligation to provide the applicants with information, having regard, first, to thegeneral nature of the requests for information made by the applicants and, second,to the obligation incumbent on the Community institutions to maintain the secrecyof confidential information concerning the Community producer. B  Findings of the Court It is a fundamental principle of Community law that the right to a fair hearing mustbe respected. In the field of protection against dumped imports, that right isspecified in Article 7(1) and (4) of the basic regulation. In particular, the following provisions are laid down by Article 7(4)(a) and (b): '(a) The complainant and the importers and exporters known to be concerned[...] may inspect all information made available to the Commission [...],provided that it is relevant to the defence of their interests and notconfidential within the meaning of Article 8 and that it is used by theCommission in the investigation. [...] (b) Exporters and importers of the product subject to investigation [...] mayrequest to be informed of the essential facts and considerations on the basisof which it is intended to recommend the imposition of definitive duties[...]. The right to such information must be reconciled with the Community institutions'obligation to maintain the confidentiality of business secrets. In any event, theundertakings concerned should have been placed in a position during theadministrative procedure in which they could effectively make known their viewson the correctness and relevance of the facts and circumstances alleged and on theevidence relied on by the Commission in support of its allegation concerning theexistence of dumping and the resultant injury (Al-Jubail Fertilizer, cited in paragraph60 above, paragraph 17), not later than during the procedure for the adoption ofthe Council regulation (see paragraph 87 below). In proceedings for annulment ofan anti-dumping regulation of the Council, the Court's powers of review mayextend to the matters contained in the Commission regulation and the procedurerelating to it, in so far as the Council regulation refers thereto. Before considering whether the Community institutions correctly weighed therequirement of confidentiality against the need to respect the right to a fair hearingand to comply with Articles 7(4)(a) and (b) and 8 of the basic regulation, it isnecessary, first, to define the context of the present case by recalling the specialcharacteristics of the market under consideration and, second, to ascertain theconsequences of those characteristics. 1. The special characteristics of the market under consideration and theconsequences of those characteristics During the investigation period, the aspartame market had unusual characteristics. First, there were only a few suppliers of aspartame operating on a worldwide basis,namely the two applicants, who were the largest by far, and the Communityproducer, HSC. The applicants cooperated very closely with each other, effectingalmost all their sales in the Community through the intermediary of their jointlyowned undertaking, NSAG. Second, since the aspartame produced by the differentmanufacturers was identical, the competition between them related essentially tothe price at which it was sold. As a result of those characteristics, the applicants necessarily possessed a thoroughknowledge of the market, enabling them, on the basis of limited information, todraw conclusions concerning the situation of the Community producer, even to theextent that, shortly after the commencement of the investigation, they were able toobtain, through the intermediary of NSAG, a report by McKinsey containing anestimate of the elements and structure of HSC's production costs (see paragraph9 above). In those circumstances, the Community institutions had to take particularcare to avoid disclosing information which would have enabled the applicants toinfer information of a commercially sensitive nature which could have jeopardizedthe Community producer. Moreover, both HSC and the applicants were adamantthat the information provided was of a confidential nature. 2. The alleged inadequacy of the information provided prior to the impositionof definitive duties Even if it is accepted, as the applicants maintain, that the principle of the right toa fair hearing requires exporters to be informed of the essential facts andconsiderations on the basis of which it is intended to impose provisional duties, afailure to respect that right cannot in itself have the effect of vitiating the regulationimposing definitive duties. Such a regulation is distinct from the regulationimposing provisional duties, even if it is so closely connected with the latter that itmay, in certain circumstances, take its place (Case 56/85 Brother v Commission[1988] ECR 5655, paragraph 6, Joined Cases 294/86 and 77/87 Technointorg vCommission and Council [1988] ECR 6077, paragraph 12, and JoinedCases C-305/86 and C-160/87 Neotype Techmashexport v Commission and Council[1990] ECR I-2945, paragraph 13; order of 10 July 1996 in Case T-208/95 Miwonv Commission [1996] ECR II-635, paragraph 20); consequently, its validity must beassessed in relation to the rules applying at the time of its adoption. Where, in thecourse of the procedure leading to the adoption of a regulation imposing adefinitive duty, steps are taken to remedy a defect vitiating the adoption of thecorresponding regulation imposing a provisional duty, the illegality of theprovisional regulation does not render the definitive regulation illegal. Only in sofar as the defect has not been remedied, and in so far as the definitive regulationrefers to the provisional regulation, will the illegality of the earlier regulation renderthe later one illegal. Consequently, it is necessary in the present case to consider whether the right ofthe parties concerned to a fair hearing was respected in the course of theprocedure leading to the adoption of the contested regulation imposing a definitiveduty and ordering the definitive collection of the provisional duties. 3. The alleged insufficiency, in the light of Article 7(4)(a) of the basicregulation, of the information provided by HSC Article 7(4)(a) of the basic regulation enables the complainant and the importersand exporters known to be concerned to inspect all information made available tothe Commission by any party to the investigation, apart from internal documentsprepared by the authorities of the Community or its Member States, provided, first,that it is relevant to the defence of their interests, second, that it is not confidentialwithin the meaning of Article 8, third, that it is used by the Commission in theinvestigation, and, fourth, that it is requested in writing by the person wishing toinspect it. Article 8(2)(a) of that regulation provides that the Council, the Commission, theMember States and their officials are not to reveal any information receivedpursuant to that regulation for which confidential treatment has been requested byits supplier, without specific permission from the supplier. According to Article8(2)(b), each request for confidential treatment must indicate why the informationis confidential, and must in addition be accompanied by a non-confidentialsummary of the information in question, or a statement of the reasons why thatinformation cannot be provided in summary form. The second subparagraph ofArticle 8(4) provides that, if the supplier of information which can be provided inthe form of a non-confidential summary is unwilling to authorize its disclosure insuch summary form, the Community institutions may disregard it. However, thatprovision does not impose on them any obligation to disregard it. In the present case, the complainant provided non-confidential summaries, whichthe Commission passed to the applicants. Even if, as the applicants claim, thecontents of those summaries were insufficient, the Community institutions were notobliged to disregard them, but were at most entitled to do so. They were obliged,however, to place the applicants, during the administrative procedure, in a positionin which the latter could effectively make known their views on the correctness andrelevance of the facts and circumstances alleged and on the evidence relied on bythe Commission in support of its allegation concerning the existence of dumpingand the resultant injury. It is necessary, therefore, to determine whether theCommunity institutions discharged that obligation. 4. The alleged insufficiency, in the light of Article 7(4)(b) of the basicregulation, of the information provided (a) The criteria to be fulfilled by requests for information According to Article 7(4)(c)(i) of the basic regulation, requests for informationmade pursuant to Article 7(4)(b) must be in writing and must specify the particularissues on which information is sought. The sufficiency of the information provided by the Community institutions must beassessed in relation to how specific the request for information was. (b) The requests for information made in the present case and the informationprovided by the Community institutions (i) General requests for information The applicants made numerous complaints regarding the insufficiency of theinformation supplied to them but merely requested, in general terms, to beinformed of the essential facts and considerations on the basis of which theCommission intended to recommend the imposition of duties (see paragraphs 8, 16and 31 above). The Commission replied to those general requests for information by letter of22 March 1991 (see paragraph 25 above). Having regard to the general nature ofthose requests, that letter and its annexes fulfilled the requirements ofArticle 7(4)(b) of the basic regulation. They contained information which wassufficiently detailed to place the applicants in a position in which the latter couldeffectively make known their views on the correctness and relevance of the factsand circumstances alleged and on the evidence presented by the Commission insupport of its allegation concerning the existence of dumping and the resultantinjury. (ii) Requests for information on particular issues Complaints concerning the requests for information made by letter of 14 December1990 By letter of 14 December 1990 NSC also asked specific questions concerning thereference price. Thereafter, reference was made to that letter not only by NSC butalso by Ajico, even thought the latter had not expressly joined NSC in asking thosequestions; they requested the Commission to clarify a number of its answers to thatletter. However, the applicants did not state during the administrative procedurein what respects the information provided by the Community institutions wasinsufficient, nor did they indicate the specific issues on which they wished to receiveadditional information. The Commission replied to those requests for information by letter of 18 December1990 (see paragraph 15 above). It is necessary to consider the replies given by theCommission in order to determine whether they were sufficient to enable theapplicants effectively to defend themselves. The Court proposes to limit itsexamination of those replies to the issues concerning which the applicants haveraised criticisms. Level of capacity utilization (see the first indent in paragraph 65 above) The applicants cannot criticize the Community institutions for failure to explain theassumptions and methods used to determine the production capacity of theCommunity producer, since they did not request any information in that respect. The information which they requested related to the level of capacity utilizationused to determine the reference price. In that regard, the applicants cannotcomplain of any failure by the Community institutions to state whether that levelreflected the actual level observed at the end of the investigation period or theaverage level of utilization. In its letter of 14 December 1990, NSC requested thatinformation only in the event that it was impossible, for reasons of confidentiality,to indicate a percentage. Since the Commission stated that it had assumed fullcapacity utilization, that is to say, a level of 100%, it was not obliged to answer thequestion posed in the alternative. Since the applicants did not request anyadditional information in that regard during the administrative procedure, theCommission must be considered to have provided a complete answer to thequestion asked by NSC. Moreover, since it is not denied that the Commissionbased its findings on the assumption of maximum utilization of production capacitydetermined at the end of the investigation period, that is to say, on the assumptionwhich was most favourable to the applicants, any additional observations which thelatter might have made would have had no bearing on the level taken by theCommission as the basis for its findings. The period chosen for the purposes of reaching break-even and achievinga profit margin of 8% (see the second indent in paragraph 65 above) In addition to the answer given by it in its letter of 18 December 1990 (seeparagraph 15 above), the Commission stated in its disclosure letter of 22 March1991 (see paragraph 25 above) that it was essential that the duties to be imposedcovered the difference between the export price and the reference price, being theminimum price required to enable the Community industry to cover its costs andto make a reasonable profit. In order to assess that profit margin, the Commissionstated that it had taken into account, first, the fact that the Community producerhad only just got beyond its start-up period, second, the uncertainty about theevolution of future sales, which could be as favourable as in the United States butcould also show a negative trend, and, third, the possibility of the development ofsubstitute products which could shorten the life-cycle of aspartame. That information provides sufficient details regarding the essential facts andconsiderations in response to the request for information under consideration. Moreover, in its letter of 2 April 1991 NSC put forward its views on the issue, andwas therefore fully in a position to exercise its rights of defence (see paragraph 31above). The extent to which the subsidies paid to the Community producer weretaken into account, and their compatibility with the Treaty (see the third indent inparagraph 65 above) The Commission stated in its letter of 18 December 1990 that in determining thereference price it had taken into account the subsidies paid to the Communityproducer, but did not give its view as to their compatibility with the Treaty. The applicants have not indicated how, if the subsidies paid to the Communityproducer were incompatible with the Treaty, that could have resulted in a loweranti-dumping duty. Consequently, the fact that the Commission did not provide explicit information onthat issue does not constitute an infringement of Article 7(4) of the basicregulation, and cannot therefore give rise to annulment of the contested regulation. The proportion of the overheads included in the reference price which werepaid to the associated company, DSM (see the sixth indent in paragraph 66 above) In its reply of 18 December 1990, the Commission merely confirmed that HSC hadcontributed to DSM's overheads, and that it was not in the interests of the othershareholder in HSC to inflate those costs artificially. Although the Commission's response does not provide a clear answer to thequestion posed, the fact remains that disclosure of the proportion contributedwould not have enabled NSC better to defend its interests. Only if there had alsobeen disclosure of the details of the overheads would that information have enabledit to express a view as to whether or not those overheads were reasonable. TheCommunity producer's overheads, which are a component of its production costs,are confidential and could not have been communicated to NSC in their existingform (Case 250/85 Brother v Council [1988] ECR 5683, paragraph 34). Efforts by NSAG to develop the market (see the fifth indent in paragraph66 above) In response to the question whether it had taken account of the fact that HSC hadbeen able to benefit from the market development undertaken by NSAG, theCommission stated, in its letter of 18 December 1990, that it found that questionunclear, and it requested clarification from NSC. Since NSC did not provide suchclarification, the Community institutions cannot be criticized for not having repliedto that question in greater detail. Complaints made in relation to other specific issues Detailed breakdown of the reference price It must be stated, as a preliminary point, that the reference price used to determinethe amount of the duty was calculated largely on the basis of the Communityproducer's production costs. The data relating to those costs are confidential,however (paragraph 34 of the judgment in Brother v Council, cited in paragraph106 above). During the administrative procedure, the applicants merely complained that thestructure of the costs included in the reference price, as shown by Annex 3 to theCommission's letter of 22 March 1991 (see paragraph 25 above), did not containsufficient information regarding the composition of the reference price. Thatgeneral complaint, and the observation that the Commission had not disclosed anymeaningful figures or facts concerning the margin of injury (see paragraph 31above), did not enable the Community institutions to identify the nature of the non-confidential information which would have made it possible for the applicantsbetter to defend their interests. Having regard to the special characteristics of themarket, and taking into consideration the knowledge of that market and of theirEuropean competitor which the applicants possessed (see paragraphs 85 and 86above), as well as the extremely sensitive nature of the components of thereference price from the point of view of confidentiality, the Community institutionshad to take care not to disclose information which would have enabled theapplicants to work out with relative accuracy the elements, the structure and,ultimately, the amount of the Community producer's costs. Since those data areconfidential (see paragraph 34 of the judgment in Brother v Council, cited inparagraph 106 above), it was only with knowledge as to the precise matters onwhich the applicants wished to receive more detailed information, or, at the veryleast, the purpose for which they wished to obtain and use such additionalinformation, that the Community institutions could have been in a position to assesswhether they could disclose further information concerning the reference pricewhilst at the same time complying with the confidentiality requirements applyingin the present case. Having failed to place the institutions in a position which would enable them tomake that assessment, the applicants cannot complain of any failure by theinstitutions to provide them with a breakdown of the reference price which wasmore detailed than that appearing in Annex 3 to the Commission's letter of22 March 1991 (see paragraph 25 above). In particular, since they did not requestspecific information as to the type of financing costs taken into account or theirallocation, or as to the ratio of debt to equity, they cannot complain that theCommunity institutions failed to provide details regarding those points. In the case of Timex, cited in paragraph 73 above, on which the applicants rely, theCommunity institutions merely disclosed the items included in the calculation of thereference price, without providing any figures in relation to those items. In thepresent case, by contrast, the Community institutions disclosed the cost elementstaken into account in the calculation of the reference price, by providing figuresindicating, within a range of 10%, the percentage of the total cost which each ofthose elements represented. Having regard to the requests for confidentialtreatment made by the Community producer, the information communicated to theapplicants in the present case concerning the composition of the reference pricemust be regarded as sufficient. In the case of Al-Jubail Fertilizer, cited in paragraph 60 above, on which theapplicants also rely, the defendant did not deny that the Community institutionshad been in a position to communicate to the applicant company the informationwhich it needed in order to exercise its rights of defence, since it stated that theCommission had sent that information to the applicant by letter. However, theregulation contested in that case had been annulled because the defendant had notproved that the applicant had received that letter. In the present case, by contrast,the defendant states that it was precluded by the obligation of confidentialityincumbent on the Community institutions from communicating some of theinformation at issue. Lastly, in the judgment in Nölle, cited in paragraph 60 above, the Court of Justiceheld the regulation at issue to be invalid, not because of any breach of the rightsof the defence but on the ground that the normal value had not been determined'in an appropriate and not unreasonable manner within the meaning of Article2(5)(a) of the basic regulation. The question whether or not, within the frameworkof the provisions applicable in the present case, the Community institutionsexceeded their power of assessment in the determination of the normal value willbe considered in the context of the next plea, alleging infringement of Article 2(3)of the basic regulation. Inclusion of the Community producer's start-up costs in the calculation ofthe reference price and depreciation (see the fourth and fifth indents in paragraph65 above) In their submissions of 2 April 1991 (see paragraph 31 above), NSC and NSAGstated that HSC had incurred considerable expense and faced many difficulties instarting up, and that the costs relating to the start-up of the plant could not betaken into account in the calculation of the reference price. They also consideredthat the legal costs incurred by HSC in bringing proceedings against them could notbe regarded as production costs, and that, at the very least, they should be spreadout over time. On the other hand, they did not request any detailed informationconcerning the assumptions and methods used for the purposes of including thestart-up costs in the calculation of the reference price (particularly as regards thedepreciation methods used and the reasons for the application by the Communityinstitutions of a depreciation period of ten years), or any details concerning the twoitems of start-up costs which were taken into account. In its letter of 18 April 1991 (see paragraph 32 above), the Commission stated that,with the exception of two items which were written off in accordance withNetherlands law, the start-up costs, including the legal fees, had been excludedfrom the calculation. Thus, even assuming that the submissions of NSC and NSAG of 2 April 1991constituted a valid request for information within the meaning of Article 7(4)(b) ofthe basic regulation, the Commission's letter of 18 April 1991 answered that requestin full. Raw materials purchased from associated undertakings (see the fourthindent in paragraph 66 above) The applicants cannot complain that the Community institutions failed to providethem with information concerning the proportion of the raw materials purchasedby the Community producer from associated suppliers, since they did not requestany information regarding that particular point. (c) Conclusion It follows from the foregoing, having regard in particular to the specialcharacteristics of the market (see paragraphs 85 and 86 above), the extensiveknowledge of that market which the applicants possessed and their ability, on thebasis of that knowledge, to request such relevant details as they might require, thatthe Community institutions fulfilled their obligations to provide information arisingfrom Article 7(4)(a) and (b) of the basic regulation. Consequently, the plea must be rejected. The plea alleging infringement of Article 2(3) of the basic regulation Arguments of the parties The applicants maintain that, by comparing the prices charged in the domesticmarket of the United States with the prices prevailing in the Community marketin order to determine the normal value, the defendant committed a manifest errorof assessment, failed to take essential factors into consideration and infringed theTreaty and the basic regulation. According to the applicants, the prices on the United States market did not permita valid comparison to be made within the meaning of Article 2(3)(a) and (b) of thebasic regulation, and did not result from operations in the ordinary course of trade. Unlike the Community market, which is fully competitive, the United States marketis monopolistic, on account of the patent protecting aspartame. In a non-competitive market, the Community institutions are required to calculate thedumping on the basis of a constructed value. Comparison of the prices charged intwo structurally different markets is not permissible, as the Court of Justiceacknowledged in its judgment in Brother v Council, cited in paragraph 106 above. It is also apparent from the Commission's decision in the 'Pears in syrup fromAustralia case that competition must exist. United States law also recognizes thatit is inappropriate to make price comparisons which ignore the effect of intellectualproperty protection (decisions in the cases of Lightweight Polyester Filament Fabricfrom Japan, 49 Fed. Reg. 472 (1984), and Generic Cephalexin Capsules fromCanada, 53 Fed. Reg. 47562 (1988)). A patent confers on its holder the right to increase prices by a premium,constituting a reward for the invention. Determination of the normal value on thebasis of prices charged in the context of protection under a patent penalizes theinventor exercising his rights in the patent, whereas neither Community law nor theGATT requires a patent holder to give up those rights in order to export. Torequire patent holders to sell in the Community at prices higher than the marketprice would constitute discrimination against foreign patent holders and giveCommunity producers an unfair advantage. Lastly, by failing to state the reasons for finding that the patent-protected priceswere comparable to prices for export to the Community, the defendant hascommitted a breach of its obligation to provide a statement of reasons (Article 190of the Treaty). The defendant contends that this plea should be rejected. It denies that normalvalue was determined in an unlawful manner, since it was calculated on the basisof prices resulting from normal market forces and enabling a valid comparison tobe made. The intervener adds that there is no reason why normal value should not be basedon patent-protected prices if those prices reflect the actual market situation in theexporting country. Findings of the Court There is nothing in the wording of the basic regulation which indicates that theimposition of anti-dumping duties is dependent on any factor other than aninjurious price differentiation as between the prices charged in the domestic market(in this instance, the United States market) and those charged in the export market(in this case, the Community market). The criteria of the market structure or the level of competition are not inthemselves decisive for the purposes of applying a constructed normal value ratherthan a normal value based on actual prices, where the latter are the result ofmarket forces. As the Commission found in its regulation (point 16 in thepreamble, confirmed by point 8 in the preamble to the Council regulation), a'difference in price elasticity between the US and Community markets is 'aprerequisite for price differentiation and, if it had to be taken into account,'dumping could never be sanctioned. Since the applicants have not shown thatthe prices used to determine the normal value did not result from market forcesor did not reflect the actual situation in the United States market, there was noreason to apply a constructed normal value rather than the prices actually paid onthe United States market. Lastly, the contested regulation has not in any way deprived the applicant NSC ofits United States patent, since it has not prejudiced its right to prevent any thirdparty from producing and marketing aspartame until that patent expires, nor itsright to maximize its prices in that market. In that regard, the production andmarketing monopoly conferred by the patent enables its holder to recover researchand development costs incurred not only for successful projects but also forunsuccessful ones. That factor constitutes an additional economic reason forrelying, for the purposes of determining normal value, on prices charged in thecontext of a patent. Consequently, the applicants have not shown that, by determining the normal valueof imported aspartame on the basis of the patent-protected prices charged in theUnited States, the Community institutions committed an error of law or a manifesterror of assessment of the facts. As regards the complaint that insufficient reasons were given for basing the normalvalue on those prices, it must be recalled that, as has been consistently held in therelevant case-law, the statement of reasons required by Article 190 of the Treatymust disclose in a clear and unequivocal fashion the reasoning followed by theCommunity authority which adopted the measure in question in such a way as tomake the persons concerned aware of the reasons for the measure and thus enablethem to defend their rights, and to enable the Community judicature to exercise itspower of review (Case 203/85 Nicolet Instrument v Hauptzollamt Frankfurt amMain-Flughafen [1986] ECR 2049, paragraph 10, Case 240/84 Toyo v Council [1987]ECR 1809, paragraph 31, and Case 255/84 Nachi Fujikoshi v Council [1987]ECR 1861, paragraph 39). In the present case, the contested regulation confirms (in point 8 of its preamble)points 12 to 19 of the preamble to the Commission regulation. In point 18 of the preamble to the Commission regulation, the Commission statesas follows in relation to the argument that, because of the patent protectionafforded to aspartame in the United States, the United States prices were not reallycomparable: 'The Commission cannot accept this claim as justified. Injurious pricediscrimination is condemned by Community and international law irrespective ofthe reasons and motives underlying such discrimination. The patent in the US doesnot as such determine the domestic price level. If the exporter uses its position aspatent holder to practise higher prices domestically than for export sales, such apractice results from his free commercial decision. There is no reason why thisprice differentiation, to the extent that it leads to material injury to the Communityindustry, should escape from the application of anti-dumping rules. Those explanations were sufficient to make the persons concerned aware of thereasons for the measure and thus enable them to defend their rights, and to enablethe Community judicature to exercise its power of review. Consequently, theregulation is adequately reasoned as regards the point under consideration. It follows that the plea must be rejected. The pleas alleging infringement of the Treaty and of Articles 2(1), 4 and 13 of thebasic regulation and miscalculation of the anti-dumping duty Arguments of the parties The applicants consider, first, that the Community institutions committed a manifesterror of assessment in their appraisal of the evidence produced by the applicants,and that they infringed the provisions of the GATT Anti-Dumping Code and of thebasic regulation concerning the establishment of injury. According to the applicants, that evidence showed that the Community producerdid not suffer serious injury and that its results were as good as could reasonablybe expected. HSC could not reasonably have expected to be making a profit, muchless a profit of 8%, within one year of commencing production. At the beginning of the investigation period, the Community producer had been inproduction for less than six months and was therefore still at the start-up stage. Asa newcomer in the market, it was faced with numerous obstacles, such as thetechnological leadership of the applicants, the absence of economies of scale duringthe start-up phase and inexperience. Even taking into account relatively lowcapacity utilization, it was inefficient. Its costs were extremely high (see point 49in the preamble to the Commission regulation, which shows that the start-up costswere considerable). In particular, its financial expenses represented between 5%and 15% of its costs, suggesting that it was highly indebted. The applicants point out that the Community producer was operating in a marketin which aspartame prices were being driven down by market forces. Thecompetition existing on the Community market from many other low-priced intensesweeteners, due to the absence of effective regulatory restrictions and the fact thatconsumers in the Community are less concerned about the effects on health ofthose products than their counterparts in the United States and Japan, had resultedin a considerable fall in prices since 1983, five years before HSC commencedproduction. Despite those circumstances, the Community producer achieved a significant shareof aspartame sales. There is no evidence to show that, if prices had been higher,the resulting fall in demand would not have wiped out any increased income, nor,a fortiori, that the problem of the under-utilization of HSC's production capacitywould have been solved. Moreover, in the light of the imminent expiry of NSC'spatent, the Community producer's prospects of extending its sales to theparticularly lucrative United States market and of benefitting from greatereconomies of scale were favourable. As is apparent from the evidence submitted by the applicants, in particular theMcKinsey report (see paragraph 9 above), a newcomer in a developing marketcannot expect to break even in the first few years after commencing its operations. It is an illusion to imagine that customers can be drawn away from establishedproducers without significant price undercutting. Moreover, a second entrantseeking to increase its market share by undercutting prices would run the risk ofincreasing the downward pressure on prices without gaining more than a tokenmarket share, especially where prices were already low as a result of competitionfrom substitute products. In their replies, the applicants complain that the Community institutions failed tostate the reasons for which HSC could have expected to reach a higher level ofcapacity utilization or why it should have been able immediately to sell all theaspartame which it could produce. Second, the applicants add that the Commission was wrong in stating that theimports at issue caused the alleged injury and, in particular, that 'the lowering ofthe export prices by NSAG coincided with the appearance of the complainant onthe Community market (paragraph 45 in the preamble to the Commissionregulation). In addition, the finding (contained in point 54 of the preamble to the Commissionregulation) that competition intensified following the expiry of the patents in theCommunity between 1986 and 1988 cannot be reconciled with the conclusion thatthe imports in issue caused the decline in price levels. On the United Statesmarket, by contrast, the growth in demand, the banning of cyclamates, the healthwarnings on saccharine products and NSC's patent all prompted higher prices. In the past, the Community institutions have taken into account factors similar tothose existing in the present case, in particular intra-Community competition andthe very substantial costs of Community producers, and have found no causal linkbetween the imports in question and the injury suffered by the Community industry(Commission Decision 86/344/EEC of 17 July 1986 terminating the anti-dumpingproceeding concerning imports of Portland cement originating in the GermanDemocratic Republic, Poland and Yugoslavia (OJ 1986 L 202, p. 43, point 24 ofthe recitals in the preamble)). Third, the applicants complain that, by overestimating the level of anti-dumpingduty necessary in order to remove the alleged injury, the Community institutionsinfringed Article 13(3) of the basic regulation. That duty was determined on thebasis of a reference price which the Community institutions calculated withreference to the costs of the Community producer. In view of the excessive amountof those costs, the reference price should have been calculated on the basis of thecosts of one of the exporters or of a producer in a similar industry; alternatively,it should have been set at the level of the Community price or, if price undercuttingwere established, it should have been equivalent to the Community price plus theundercutting found to have taken place, in accordance with the procedure followedby the Community institutions in other cases (see, for example, CommissionRegulation (EEC) No 3232/89 of 24 October 1989 imposing a provisionalanti-dumping duty on imports of small screen colour television receivers originatingin the Republic of Korea (OJ 1989 L 314, p. 1); Commission Regulation (EEC)No 129/91 of 11 January 1991 imposing a provisional anti-dumping duty on importsof small-screen colour television receivers originating in Hong Kong and thePeople's Republic of China (OJ 1991 L 14, p. 31)). In some cases, the Communityinstitutions have even used the costs of the most efficient producer. Even assuming that the alleged injury was caused solely by the imports, thereference price is still incorrect. The production costs used by the Communityinstitutions were so high that they can only have resulted from a miscalculation. The defendant and the intervener contend that those pleas should be rejected. They maintain, in essence, that the determination of the injury, the establishmentof a causal link between that injury and the dumped imports and the calculationof the anti-dumping duty took due account of the fact that the Communityproducer was a newcomer in the market and that it was therefore bound to be lessefficient than the applicants. Furthermore, they deny that there was intense pricecompetition from other sweeteners and that that factor could have given rise to theinjury. Findings of the Court The determination of injury and of the existence of a causal link between thatinjury and dumped imports involves the assessment of complex economic mattersin respect of which the Community institutions enjoy a wide margin of appreciation(see, for example, Case C-69/89 Nakajima v Council [1991] ECR I-2069, paragraph86, and Case T-164/94 Ferchimex v Council [1995] ECR II-2681, paragraphs 111and 131). In point 26 of the preamble to the contested regulation, the defendant stated: '[...] to determine whether the Community industry concerned suffered materialinjury account has been taken of the following factors: The Community producer began selling in 1988 and obtained a relatively small partof the Community market which is still largely held by the US and Japaneseproducers/exporters. This market penetration was countered by the Americancompetitors by a dramatic price drop which resulted in considerable losses for theCommunity industry and prevented it from increasing its utilization of productioncapacity which would have allowed it to benefit from economies of scale. At theend of the investigation period the losses had reached a dimension which wasdirectly threatening the viability of the industry. As regards the alleged inefficiency of the Community producer, it must be recalledthat the fact that a Community producer is facing difficulties, whether or notattributable in part to causes other than dumping, is not a reason for depriving thatproducer of all protection against the injury caused by the dumping (Brother vCouncil, cited in paragraph 106 above, paragraph 42, and Joined Cases 277/85 and300/85 Canon and Others v Council [1988] ECR 5731, paragraph 63). Furthermore, during the investigation period, the Community producer was still atthe start-up stage. It is apparent from a document provided by the applicants inresponse to the Court's questions of 22 January 1997 that their production costsduring their first two years of production were over twice as high as theirproduction costs during the investigation period. Consequently, even assuming that,as the applicants maintain, their production costs were approximately twice as lowas those of the Community producer during the investigation period, theCommunity institutions did not exceed their discretion by relying on the latter'scosts in order to determine the reference price below which the Communityproducer must be regarded as having suffered injury. As regards competition from other low-priced artificial sweeteners, it is apparentfrom point 31 in the preamble to the contested regulation that the defendant tookthe view that the presence on the market of other intense sweeteners did notsignificantly influence the price of aspartame, and that it did not cause the fall inprices which occurred from the time when the Community producer decided toenter the market. In its replies to the Court's questions of 22 January 1997 and atthe hearing, the defendant stated that competition from other sweeteners wasreduced on account of the special qualities of aspartame, particularly its taste. In view of the taste advantages of aspartame, the defendant's finding that demandfor aspartame was not significantly influenced by the presence on the market ofother low-priced intense sweeteners is plausible, having regard to the followingfactors which emerge from the documents before the Court, in particular the tablescontained in the report drawn up at the applicants' request in March 1997 by theconsultancy firm LMC International with a view to answering the Court's questionsof 22 January 1997. First, aspartame has succeeded in establishing itself in themarket despite being more expensive than other sweeteners. Second, those whouse sweeteners do not merely purchase the cheapest varieties; indeed, demand foraspartame in the Community increased after the imposition of the anti-dumpingduties. Third, the proportion of the total cost of the finished product which thecost of an intense sweetener represents is marginal. In those circumstances, it is also plausible that a producer of aspartame should beable, even as a newcomer in the market, to achieve a profit of 8% within a periodof 18 months, a fortiori since that percentage was assessed on the basis of fictitiousproduction costs determined on the assumption of total utilization of productioncapacity. The plausibility of that finding is borne out by the consideration that anewcomer in a monopolistic market could expect to receive a favourable receptionfrom consumers. As regards the fall in aspartame prices in the Community, the applicants have notrebutted the explanation given by the defendant in its answers to the Court'squestions of 22 January 1997 that the decrease in costs could account for the fallin prices between 1983 and 1987 but not for the subsequent fall. Nor have theyrefuted the defendant's assertion that the gap between the fall in prices and the fallin their production costs widened from 1986 onwards, with prices falling morerapidly than costs. Although the statement that 'the lowering of the export prices by NSAG coincidedwith the appearance of the complainant on the Community market (point 45 inthe preamble to the Commission regulation and point 30 in the preamble to theCouncil regulation) is perhaps somewhat vague, the argument that 'the decisionto drop prices to loss-making levels clearly lies in the sphere of responsibility ofNSAG and the US and Japanese exporters, and the effects of such pricing policycannot be attributed to difficulties in HSC's production process (point 49 in thepreamble to the Commission regulation and point 33 in the preamble to theCouncil regulation) is, by contrast, entirely plausible. The applicants do not deny that the chief executive of NSC stated as follows in1989 (see the article published in the Netherlands newspaper De FinanciëleTelegraaf of 2 September 1989, annexed to the defence): 'Maar de prijs is geenpunt. Wij zullen zonodig onder de prijs van iedere concurrent duiken. Dat kunnenwe ons veroorloven omdat wij meer dan ieder ander hebben kunnen investeren inefficiency, daartoe in staat gesteld door de ruime middelen waarover wij dank zijons patent konden beschikken. ('Prices are not a problem. If necessary, we canundercut any price charged by any competitor, since we can invest more thananyone else in efficiency, thanks to the substantial resources generated by ourpatent.) They do not deny having indeed undercut prices (point 40 in thepreamble to the Commission regulation and point 26 in the preamble to theCouncil regulation), increased exports to the Community in absolute terms (point37 in the preamble to the Commission regulation and point 26 in the preamble tothe Council regulation) and lowered their prices substantially (point 39 in thepreamble to the Commission regulation and points 26 and 31 in the preamble tothe Council regulation). It follows that the applicants have not shown that in finding that the Communityproducer had suffered injury caused by the dumped imports the defendantexceeded its margin of appreciation. The amount of the duty imposed in the present case is equivalent to the differencebetween the reference price, that is to say, the minimum price at which aspartamemust be imported into the Community if the Community industry is not to sufferinjury, and the export price. It follows from the Court's findings in paragraphs 150to 158 that the applicants have not established that the Community institutions usedthe wrong basis to calculate the amount of duty needed to remove the injury. Asregards a possible error of calculation, the applicants infer that such an error hasbeen committed from the fact that the costs taken into account in order todetermine the reference price are twice as high as their own costs. As is apparentfrom paragraph 151, it is conceivable that the production costs of an aspartameproducer at the start-up stage may be twice as high as those of an experiencedproducer. The fact that they are does not constitute adequate proof of an errorin the calculation of the reference price, however, or even circumstantial evidenceof such an error. Lastly, the claim that insufficient reasons were given for the finding that HSCshould have been able to achieve a higher level of production capacity utilizationwas raised for the first time in the reply. It is thus out of time and, as such,inadmissible. There is therefore no need to consider it. It follows from the foregoing that the pleas thus examined must be rejected. III  Pleas advanced solely in Case T-159/94 The plea alleging infringement of essential procedural requirements and of Article 190of the Treaty Arguments of the parties Ajico complains that the Community institutions breached its right to a fair hearing(Case 17/74 Transocean Marine Paint v Commission [1974] ECR 1063, paragraph15) and infringed the GATT Recommendation Concerning Best InformationAvailable in Terms of Article 6:8, adopted by the GATT Committee on Anti-Dumping Practices on 8 May 1984 (GATT, BISD, 31st Supplement, p. 283). TheCommission considered that Ajico had not been sufficiently cooperative and thusrefused to base its findings on the information provided by that undertaking andto regard the prices charged on the United States market as constituting normalvalue, with the result that excessive duties were imposed. That assessment and thedecision flowing from it therefore appreciably affected the applicant's interests. However, it was not until the Commission regulation was published that it receivedany notice to that effect; consequently, it was given no opportunity to comment inthat regard. In any event, the applicant did its best to cooperate in the verification proceduresand the investigation. The Commission wished to verify the quantities sold on theJapanese market and the production costs. As regards its sales on the Japanesemarket, the applicant supplied, first, the factory shipment statistics, second, theinvoices relating to all its sales (2.4 million invoices), including those relating toaspartame, and, third, microfilm copies of all monthly and periodic customer salesinvoices, including those relating to sales of aspartame. As regards its productioncosts, Ajico provided complete documentation relating to production costs for itstwo semi-annual accounting periods from 1 October 1988 to 30 September 1989,covering three quarters of the investigation period. At the time when the on-the-spot inspection took place, information was also available relating to its productioncosts during the last quarter of 1989, but this was not broken down between thedifferent products since Ajico did not have sufficient time to carry out a specificcalculation of the production cost of aspartame. Nevertheless, it is normal practice,where there is a time-lag between the investigation period and the accounting yearof the undertaking concerned, to determine the figures by means of extrapolationfrom the data that is available (Council Regulation (EEC) No 112/90 of 16 January1990 imposing a definitive anti-dumping duty on imports of certain compact discplayers originating in Japan and the Republic of Korea and collecting definitivelythe provisional duty (OJ 1990 L 13, p. 21); Commission Regulation (EEC)No 2054/91 of 11 July 1991 imposing a provisional anti-dumping duty on importsof dihydrostreptomycin originating in the People's Republic of China (OJ 1991L 187, p. 23); Council Regulation (EEC) No 729/92 of 16 March 1992 imposing adefinitive anti-dumping duty on imports of certain thermal paper originating inJapan and definitively collecting the provisional anti-dumping duty (OJ 1992 L 81,p. 1)). The defendant and the intervener contend that this plea should be rejected. Theyconsider, in essence, that it is irrelevant, since the legal basis used in the contestedregulation to establish the normal value is not Article 7(7)(b) of the basicregulation, which permits the Community institutions to rely on the data availablewhere there is insufficient cooperation on the part of the party concerned, butArticle 2(6) of that regulation. Findings of the Court This plea alleges breach of the right to a fair hearing, on the ground that theapplicant was not given the opportunity to put forward its views on theCommission's assessment that it had not been sufficiently cooperative. In the contested regulation, the normal value was established not in accordancewith Article 7(7)(b) of the basic regulation, which authorizes the Communityinstitutions to rely on the data available in the event of insufficient cooperation onthe part of the party concerned, but on the basis of Article 2(6) of that regulation. The question whether the applicant was given an opportunity to comment on theassessment in issue therefore has no bearing on the contested regulation. It followsthat, even assuming that the Community institutions failed to afford the applicantthat opportunity, on which point there is no need for the Court to rule, thatconduct did not in any way alter the findings of the Council as set out in thecontested regulation. Consequently, the plea must be rejected. The plea alleging infringement of Article 2(6) of the basic regulation Arguments of the parties Ajico points out that, under Article 2(6) of the basic regulation and GATT, theCommunity institutions must determine the normal value on the basis of acomparable price. In the present case, the price at which aspartame was sold in the United States wasnot comparable, on account of the patent held by NSC in that market. Furthermore, since the patent prohibited the applicant from selling aspartame tothird parties in the United States, its prices could not affect, or be affected by, theprices charged by NSC in that country; they resulted from Japanese market forces. It was unreasonable, therefore, to make the applicant bear the consequences of theparticular economic and regulatory situation in the United States. Since the price payable on the United States market was not comparable, thenormal value should have been determined on the basis of the price in the countryof origin. That solution was all the more ineluctable given that the aspartame shipped fromJapan was merely transhipped through the United States. Transhipment, in thecontext of Article 2(6) of the basic regulation, covers situations in which theshipments to an intermediate country do not influence, and are not influenced by,market conditions in the intermediate country. That was the position in the present case, since the aspartame shipped from Japanwas not intended for resale in the United States but was imported into that countrysolely in order to enable NSC to take advantage of the United States rules on thereimbursement of import duties. Nor, in view of the patent covering the UnitedStates market, did the applicant's shareholding in the jointly owned companyNSAG permit it to influence price levels. The aspartame sold by the applicant toNSC for resale in the United States had no connection with the shipments ofaspartame intended for resale in the Community. Not only were those shipmentsseparately recorded; they were also invoiced at a different price. Ajico retainedcontrol over those shipments after their delivery to NSC, since NSC wascontractually bound to resell them immediately to the applicant's European salessubsidiary, Deutsche Ajinomoto GmbH, for onward sale to NSAG. Lastly, whilstit is true that some of the aspartame originating in Japan was repackaged in largercontainers or granulated to facilitate handling, this related only to a very smallproportion of the aspartame shipped, namely 1.4% and 7% respectively. Furthermore, that practice was followed only during the period from November1988 to December 1989, which corresponds almost exactly with the investigationperiod, and only in order to accommodate demands made by Community customersafter the shipments had left Japan. However, since the volume of sales on the market of the country of origin was lessthan five per cent of sales on the Community market, and since Article 2(6) of thebasic regulation does not preclude the formulation of a constructed normal valuein accordance with Article 2(3) of that regulation, the normal value should havebeen determined by constructing it on the basis of the applicant's manufacturingcosts plus a reasonable profit. As stated in the context of the previous plea, theCommission was able to verify the applicant's manufacturing costs. According to the defendant and the intervener, the criteria laid down by Article2(6) of the basic regulation for determining the normal value on the basis of thecomparable price actually paid or payable in the country of origin (in this instance,Japan) were not fulfilled in the present case, in particular because the aspartamewas not merely transhipped through the country of export (in this case, the UnitedStates) during the investigation period. The defendant adds that, by contrast, thecriteria for determining the normal value on the basis of the price actually paid orpayable in the country of export were fulfilled, because that price was comparable. The defendant and the intervener therefore contend that the plea should berejected. Findings of the Court Article 2(6) of the basic regulation provides: 'Where a product is not imported directly from the country of origin but isexported to the Community from an intermediate country, the normal value shallbe the comparable price actually paid or payable for the like product on thedomestic market of either the country of export or the country of origin. The latterbasis might be appropriate, inter alia, where the product is merely transhippedthrough the country of export, where such products are not produced in the countryof export or where no comparable price for it exists in the country of export. It is not disputed that the aspartame sold by Ajico was not imported direct into theCommunity from the country of origin (Japan) but through an intermediate country(the United States). In such circumstances, Article 2(6) of the basic regulation confers on theCommunity institutions a wide margin of appreciation as to whether to use eitherthe price paid or payable on the market of the country of export or the price paidor payable on the market of the country of origin, provided that the price used iscomparable. In the present case, the Community institutions determined the normal value onthe basis of the price paid or payable on the domestic market of the country ofexport (the United States market). By merely asserting that that price could not be used because the product inquestion was covered by a patent, the applicant has not shown that it was notcomparable (see paragraphs 126 to 129 above). Moreover, the criteria which would have allowed the Community institutions to usethe prices prevailing in the country of origin (in this instance, Japan) were notfulfilled in the present case. The Japanese aspartame was not merely transhippedthrough the United States since, first, it was in fact sold to an American operatorand, second, part of it was transformed and repackaged. It follows that the Community institutions correctly determined the normal valueon the basis of the price paid or payable on the United States market. This plea must therefore be rejected. IV  Pleas advanced solely in Case T-160/94 The plea alleging infringement of essential procedural requirements and of Article 190of the Treaty Arguments of the parties NSC complains that, in the Council regulation, the defendant merely noted that theCommission had rejected the undertakings offered by the applicant, without statingthe reasons for its own decision to reject those undertakings. It is apparent fromthe judgments of the Court of Justice in Toyo v Council and Nachi Fujikoshi vCouncil, cited in paragraph 130 above, and Case 256/84 Koyo Seiko v Council[1987] ECR 1899, read in conjunction with the judgment in Case C-156/87 GestetnerHoldings v Council and Commission [1990] ECR I-781, that the final decision toreject an offer of an undertaking, which is a decision appreciably affecting theapplicant's interests, is a matter for the Council. In order to permit the Communityjudicature to exercise its power of review, the defendant should have stated thereasons for its decision in that regard. By failing to do so, it infringed thefundamental rights of the defence. Furthermore, it did not reply to the arguments advanced by the applicant in itsletter of 15 May 1991, in which the latter contested the Commission's reasons forrejecting the undertakings. It thereby infringed Article 190 of the Treaty and thefundamental rights of the defence. Consequently, Articles 1 and 2 of the contestedregulation should be annulled. The defendant and the intervener contend that this plea should be rejected, sincethe applicant was given a sufficient statement of the reasons for rejecting theundertaking. Findings of the Court Point 49 in the preamble to the contested regulation states: '[...] After consultations these undertakings were not considered acceptable by theCommission. The Commission notified the producers/exporters of the reasons forthis decision. That reference to the reasons given by the Commission must be interpreted asmeaning that the defendant concurred with them. Those reasons were communicated to the applicant by letter from the Commissionof 7 May 1991 (see paragraph 33 above). That letter shows, in essence, that theundertakings offered were unacceptable on account of the restrictions oncompetition to which they would have given rise in the highly oligopolisticaspartame market. The letter further states that those undertakings would haveforced one of the main producers to set its prices in a way which could have beenforeseen by the other producer. Those detailed explanations show clearly and unequivocally the Communityauthority's reasoning and are such as to enable the Court to exercise its power ofreview. Furthermore, it is apparent from the applicant's letter of 15 May 1991 thatNSC did in fact understand the reasons for rejecting the undertakings offered, sinceit challenged them (see paragraph 34 above). Consequently, it must be held thata sufficient statement of reasons was given for the rejection of the undertakingsoffered (see the case-law cited in paragraph 130 above). In any event, it was open to the defendant merely to refer to the Commission'sassessment, since the power to accept proposed undertakings falls within theexclusive competence of the Commission (paragraph 27 of the order in Miwon vCommission, cited in paragraph 87 above). Consequently, the plea must be rejected. The plea alleging infringement of the applicant's rights under the patent held by it inthe United States Arguments of the parties NSC maintains that, by determining normal value on the basis of United Statesprices, the Community institutions indirectly forced it to relinquish the opportunityof maximizing the prices charged by it in the United States market. In so doing,the Community institutions expropriated, unlawfully and without compensation, therights which it enjoyed under its patent. According to the general principles ofCommunity law, however, any expropriation requires the payment of compensation(point 7 of the Opinion of Advocate General Capotorti in Case 44/79 Hauer [1979]ECR 3727, 3752, at 3760). Alternatively, even if the decision of the Community institutions did not amount tosuch an expropriation, it nevertheless constituted a disproportionate interferencewith the free use by the applicant of its patent rights. The Community institutionscould have based their determination on export prices to third countries or, asproposed by the applicant, on the constructed value. The application of thosemethods would have constituted a less serious interference with the applicant'sability to earn a premium from the patent on the United States market. The defendant challenges the applicant's argument; it asserts, in essence, that it wasrequired in the present case to determine the normal value on the basis of theprice paid or payable on the United States market. The intervener considers that,insofar as the plea seeks a finding that the Community institutions infringed orunlawfully expropriated the applicant's industrial property rights under UnitedStates law, the Court of First Instance lacks jurisdiction. They contend that theplea should be rejected. Findings of the Court The applicant has not shown how it was prevented from exercising its patent rights. It has merely asserted that the contested regulation prevented it from maximizingits prices in the United States market. Even assuming that the rights which itderived from its patent in the United States included the right to maximize itsprices in the United States market, that allegation lacks any factual basis. None ofthe anti-dumping measures restricted NSC's ability to charge whatever prices itwished in that market. The plea must therefore be rejected. Costs Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to beordered to pay the costs if they have been applied for in the successful party'spleadings. Since the applicants have been unsuccessful, and since the defendanthas applied for costs, the applicants must be ordered to pay, in addition to theirown costs, the costs of the defendant. Since Article 87(4) of the Rules ofProcedure provides that institutions which intervene in the proceedings are to beartheir own costs, the intervener must be ordered to bear its own costs. On those grounds, THE COURT OF FIRST INSTANCE (Fifth Chamber, Extended Composition) hereby: Dismisses the applications; Orders the applicants to bear their own costs and to pay the costs of theCouncil; Orders the Commission to bear its own costs. García-ValdecasasTiili Azizi Moura Ramos Jaeger Delivered in open court in Luxembourg on 18 December 1997. H. Jung J. Azizi Registrar President Summary Background to the dispute and procedure II - 2 The product II - 3 The protagonists and the market II - 3 The administrative procedure II - 3 The anti-dumping regulations in issue II - 9 1. General remarks II - 9 2. The Commission regulation II - 9 3. The Council regulation II - 10 Judicial procedure II - 10 Forms of order sought by the parties II - 11 Substance II - 12 I  Summary of the pleas advanced II - 12 II  Pleas common to the two cases II - 13 The pleas alleging infringement of essential procedural requirements andinfringement of Articles 7(4)(a) and (b) and 8(4) of the basic regulation II - 13 A  Arguments of the parties II - 13 B  Findings of the Court II - 18 1. The special characteristics of the market under consideration andthe consequences of those characteristics II - 19 2. The alleged inadequacy of the information provided prior to theimposition of definitive duties II - 19 3. The alleged insufficiency, in the light of Article 7(4)(a) of the basicregulation, of the information provided by HSC II - 20 4. The alleged insufficiency, in the light of Article 7(4)(b) of the basicregulation, of the information provided II - 21 (a) The criteria to be fulfilled by requests for information II - 21 (b) The requests for information made in the present case and theinformation provided by the Community institutions II - 21 (i) General requests for information II - 21 (ii) Requests for information on particular issues II - 21 Complaints concerning the requests for information made by letter of14 December 1990 II - 21  Level of capacity utilization (see the first indent in paragraph 65above) II - 22  The period chosen for the purposes of reaching break-even andachieving a profit margin of 8% (see the second indent inparagraph 65 above) II - 22  The extent to which the subsidies paid to the Community producerwere taken into account, and their compatibility with the Treaty(see the third indent in paragraph 65 above) II - 23  The proportion of the overheads included in the reference pricewhich were paid to the associated company, DSM (see the sixthindent in paragraph 66 above) II - 23  Efforts by NSAG to develop the market (see the fifth indent inparagraph 66 above) II - 24 Complaints made in relation to other specific issues II - 24  Detailed breakdown of the reference price II - 24  Inclusion of the Community producer's start-up costs in thecalculation of the reference price and depreciation (see the fourthand fifth indents in paragraph 65 above) II - 26  Raw materials purchased from associated undertakings (see thefourth indent in paragraph 66 above) II - 26 (c) Conclusion II - 26 The plea alleging infringement of Article 2(3) of the basic regulation II - 27 Arguments of the parties II - 27 Findings of the Court II - 28 The pleas alleging infringement of the Treaty and of Articles 2(1), 4 and 13 ofthe basic regulation and miscalculation of the anti-dumping duty II - 29 Arguments of the parties II - 29 Findings of the Court II - 32 III  Pleas advanced solely in Case T-159/94 II - 35 The plea alleging infringement of essential procedural requirements and ofArticle 190 of the Treaty II - 35 Arguments of the parties II - 35 Findings of the Court II - 36 The plea alleging infringement of Article 2(6) of the basic regulation II - 36 Arguments of the parties II - 36 Findings of the Court II - 38 IV  Pleas advanced solely in Case T-160/94 II - 39 The plea alleging infringement of essential procedural requirements and ofArticle 190 of the Treaty II - 39 Arguments of the parties II - 39 Findings of the Court II - 39 The plea alleging infringement of the applicant's rights under the patent held byit in the United States II - 40 Arguments of the parties II - 40 Findings of the Court II - 41 Costs II - 41 1: Language of the case: English. ECR