Opinion of the Advocate General — ECLI:EU:C:2002:253
Date: 2002-04-25
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Dumping;External relations;Commercial policy
Procedure: Action for annulment;Appeal - successful
Origin: Romania;Provisional data

summary manner, for example by a reference to those decisions, the Community authority must give an explicit account of its reasoning if the decision goes appreciably further than the previous decisions. Finally, it might be thought reasonable that the obligation to state reasons, in a measure of general application, should be heightened when, as in the present case, the method of calculation applied is one which is known to be controversial. 57. However, the adequacy of the reasoning will depend on the whole context. For example, Article 2(10) on comparison sets out 10 types of factor in respect of which adjustments may be made, including such items as quantity discounts or differences in transport or credit costs. Where no such factors are present, it would clearly be excessive to require an explanation for the absence of any adjustment in their regard, unless they have been alleged to be present in the course of the investigation. (Thus, recital 21 in the preamble to the contested regulation gives reasons for rejecting claims of differences in credit terms, commissions and level of trade.) - The present case 58. Article 2(11) of the basic regulation lays down a normal basis for comparison (one or other of the symmetrical methods) and an exceptional basis (the asymmetrical method) if two conditions are fulfilled. If the normal basis is used, I agree that no explanation is required unless one has been requested during the course of the preliminary procedure. Where the exceptional basis is used, however, it is in my view necessary to explain the departure from the normal procedure, in particular by establishing that the two conditions are met. This is so - in order at least to enable the Court to exercise its power of review - even when no objections have been made to the choice of method, but the reasoning to be given may obviously be more succinct in such cases than where there is a need to reply to objections. 59. I agree moreover with Petrotub that something more than a mere repetition of the terms of the conditions - that there is a pattern of export prices which differs significantly among different purchasers, regions or time periods, and that the symmetrical methods would not reflect the full degree of dumping - is required as a minimum. Such a repetition is fundamentally uninformative and in fact states no verifiable reasons for the choice of method. It allows neither the Court to exercise any review nor any other interested party to ascertain the circumstances in which the rules have been applied. (32) 60. The reason for choosing the asymmetrical method given in the provisional regulation is that it was necessary in order to reflect the full degree of dumping being practised and because there was a pattern of export prices which differed significantly between different customers and regions. In the contested regulation, the reasons given for not acceding to the request that the first symmetrical method be used are that for one company, there was no difference in dumping margin between both methods as all export transactions were made at dumped prices and that for three companies, a pattern of export prices which differed significantly by destination or time period was found. 61. Is such reasoning adequate with regard to the context and to all the legal rules governing the matter? 62. The provisional regulation contains no information as to the factual basis on which the Commission founded its choice, and thus cannot elucidate the scarcely more informative statements in the contested regulation. The only additional indication which may be inferred from the latter - and which seems clear from the Commission's final disclosure referred to in paragraph 110 of the judgment under appeal - is that the first symmetrical method was judged inadequate to reveal the full extent of dumping because it produced a lower margin. (It may be noted here that the only new reason given explicitly in the contested regulation - that the choice of method made no difference to the result in the case of one company - should in fact be a reason for not departing from the normal basis of comparison.) 63. At first sight, therefore, the contested regulation does not contain any statement from which the Court or any interested party could ascertain the reasons for which the asymmetrical method was used. It is however necessary to examine the three specific points on which adequate reasoning was or may have been required. To what extent must reasons be stated on those points and, in the light of the whole context, were such reasons given? (a) Consideration of the second symmetrical method 64. The contested regulation gives no reason for not applying the second symmetrical method. Furthermore, it appears to be undisputed that no reasons were either given or requested during the preliminary procedure. The question is whether reasons should none the less have been stated for discarding it since the terms of both Article 2(11) of the basic regulation and Article 2.4.2 of the 1994 Anti-dumping Code imply that the asymmetrical method may be used only if both the symmetrical methods are unsatisfactory. 65. In my view, a statement of reasons was required. 66. The Council and the Commission have argued that, because there is no indication as to which of the symmetrical methods is to be used in which circumstances, they may choose freely between them. To that extent I agree. I do not however accept their conclusion that it is sufficient to explain why the symmetrical method chosen was unsatisfactory in order to proceed to the use of the asymmetrical method. That is simply not consistent with the scheme or wording of the provisions, which clearly allow use of the asymmetrical method only if neither symmetrical method would reflect the full degree of dumping or allow differences in the pattern of export prices to be taken into account appropriately. 67. The institutions have also submitted that the second symmetrical method is never used - and there was no question of using it here - because it is generally considered to be impractical and arbitrary, as noted at paragraph 101 of the judgment under appeal. That may be so, and it may be a clearly unsatisfactory method in many cases, but it has been provided for both in the 1994 Anti-dumping Code and in the basic regulation, and there must thus be circumstances in which it is to be considered appropriate. At the hearing, the Commission indicated that a small number of countries, including New Zealand, consistently or traditionally use the second symmetrical method. If that is so, it seems to me that it cannot be discarded without an explanation, however obvious that explanation may be in the minds of the Community institutions - if indeed any thought is ever given, as it should be, to the question. 68. Nor is it relevant that Petrotub did not ask for any explanation in the course of the preliminary procedure. Determination of the dumping margin is an essential step in the procedure, and it is necessary to give the reasons for any departure from the normal basis of comparison for that purpose. In the circumstances, the relevant explanation could have been succinct, but it could not be omitted. 69. I therefore take the view that, by not explaining why the second symmetrical method was not appropriate, the Council failed to state adequate reasons for departing from the normal basis of comparison laid down in Article 2(11) of the basic regulation. Since the statement of such reasons is an essential procedural requirement, the Court of First Instance should have examined the question regardless of the stage in the proceedings at which it was raised. (b) Existence of a significant pattern of export prices 70. Under the basic regulation, one of the two necessary conditions for departing from the normal basis of comparison is that there must be a a pattern of export prices which differs significantly among different purchasers, regions or time periods. In order to enable the Court to exercise its power of review, and to give all interested parties (in world trade) an opportunity of ascertaining the circumstances in which the Community applies its anti-dumping rules, it is in principle necessary for a regulation imposing a duty on the basis of a dumping margin calculated by the asymmetrical method to state the reasons for concluding that such a pattern exists. As I have indicated above, I do not consider a mere statement of its existence to be sufficient. 71. In the contested regulation however, no explanation is given beyond such a statement. Moreover, the statement that for three companies, a pattern of export prices which differed significantly by destination or time period was found is not the same as the statement in the provisional regulation that there was a pattern of export prices which differed significantly between different customers and regions. The apparent discovery of significant differences by time period between the provisional and the final regulation calls, prima facie, for an explanation. 72. It is therefore my view that the statement of reasons in the contested regulation was inadequate on this point too. However, Petrotub did not raise the issue of inadequate reasoning in this context at first instance (33) nor has it done so on appeal. In those circumstances, and because the statement of reasons is in my view inadequate in other regards, I do not consider it necessary for the Court to rule on this aspect. (34) (c) Reflection of the full degree of dumping 73. The second of the two necessary - and cumulative - conditions for departing from the normal basis of comparison is that the normal basis would not reflect the full degree of dumping being practised. 74. From what the Council has stated in its pleadings and at the hearing, the fact that the first symmetrical method produced a significantly lower dumping margin than the asymmetrical method seems to have been the decisive reason for concluding that the former did not reflect the full degree of dumping, and no other reason appears to have been given at any stage. 75. That reason is not stated explicitly in the contested regulation, but it may be inferred from the statement that for one company, there was no difference in dumping margin between both methods as justification for rejecting the claim that the first symmetrical method should have been used and, more clearly, from the Commission's statement in its final disclosure that the difference in dumping margin obtained by the two methods was such that it could be concluded that the first symmetrical method did not enable the real extent of the dumping to be reflected. 76. It is moreover apparent that both the Council and the Commission consider the existence of a difference between the dumping margins obtained by the two methods to be a valid justification. Thus, in their view, a complete - and therefore by definition adequate - statement of reasons was given in that regard. And what Petrotub is challenging is in fact, they say, the validity rather than the adequacy of that reasoning. 77. On a purely formal level, that view is perhaps defendable. However, the borderline between the adequacy of a statement of reasons and the validity of the assessment which it embodies cannot be entirely clear-cut in a formal manner. Where no reasons at all are given for departing from the normal basis of calculation, there is clearly a failure to fulfil the obligation imposed by Article 253 EC. But simply to state, for example, that the Commission's computer program determined that the asymmetrical method was necessary would fall in the same category, since it would again give no indication from which to ascertain whether the departure from the normal basis was justified. In those circumstances, even though a formal reason has been given, the proper challenge would be to its adequacy as a statement of reasons and not to its validity as a correct assessment. 78. In my view, the mere assertion that the first symmetrical method produces a significantly lower result than the asymmetrical method is of the same order. Certainly, if one method reveals the full degree of dumping being practised and the other does not, it is clear that the result produced by the latter will be lower. The converse, however, is not automatically true; the higher of two results is not necessarily the more accurate (and the term full degree must in my view be taken to mean true degree) since the method might simply be inappropriate in the specific circumstances. 79. In that regard, it may be relevant that if - as is apparently systematically the case - zeroing is used with the asymmetrical method, it seems to lead automatically to a higher result whenever some transactions with a negative dumping margin are included in the calculation. (35) However, the mere fact that some transactions show a negative margin does not necessarily mean that there has been targeted dumping and it is therefore necessary to indicate, for this purpose also, the grounds on which it was concluded that such targeting existed. 80. Be that as it may, a mere assertion that the method producing the higher result was used does not in any event enable the Court or anyone else to decide whether there might have been a manifest error of assessment. Thus, the proper challenge is not, as the Council argues, that the wrong test was used, but that insufficient reasons were stated in order to determine whether the right test was used. 81. Since no further reason is given in the contested regulation (or indeed elsewhere), I therefore take the view that the statement of reasons is defective in that regard also. 82. It may consequently be unnecessary to consider specifically whether, in addition to being inadequate in the light of Article 2(11) of the basic regulation, the statement of reasons was also inadequate in the light of Article 2.4.2 of the 1994 Anti-dumping Code in that no explanation was given as to why the differences found in the pattern of export prices could not be taken into account appropriately by the use of either of the symmetrical methods. That requirement is in my view in practice very much the same as the obligation, when departing from the normal basis of comparison, to state why that normal basis would not reveal the full - true - extent of dumping. None the less, the fact that the reasons which must be stated flow not only from the basic Community regulation but also from an international instrument binding on the Community can only strengthen the obligation. - Conclusion 83. I am therefore of the opinion that the contested regulation did not contain an adequate statement, such as to enable the Court to exercise its power of review and interested parties to ascertain the circumstances in which the Community anti-dumping rules were applied, of the reasons for departing from the normal basis of comparison to be used in accordance with Article 2(11) of the basic regulation, in particular by not providing any reasons whatever as to why the second symmetrical method could not be used and by not providing any verifiable reasons as to why the symmetrical methods would not have revealed the full extent of dumping being practised. Republica Background, proceedings at first instance, judgment under appeal 84. Republica's appeal concerns the calculation of normal value on the domestic market, prior to comparison with export prices for the purpose of determining dumping margins. Under Article 2(1) of the basic regulation, normal value is normally based on the prices paid or payable, in the ordinary course of trade, by independent customers in the exporting country. However, under the third subparagraph: Prices between parties which appear to be associated or to have a compensatory arrangement with each other may not be considered to be in the ordinary course of trade and may not be used to establish normal value unless it is determined that they are unaffected by the relationship. 85. The provisional regulation makes no reference to compensatory arrangements in the context of calculating normal value for Romanian products. It appears that, following the adoption of that regulation on 29 May 1997, a hearing was held at the Commission on 9 July 1997, at which Republica made representations explained in paragraphs 68 and 69 of the judgment under appeal: 68 The applicant maintains that its domestic sales made on the basis of compensatory arrangements accounted for some 24% of domestic sales of the product concerned during the investigation period. The compensation system is imposed on the applicant by major clients, such as Romanian utilities companies, and the prices charged under that system, which are non-negotiable, are considerably lower than normal market prices. Those sales ought therefore to have been excluded for the purposes of determination of normal value in accordance with the third subparagraph of Article 2(1) of the basic regulation. 69 The applicant made no reference to those sales in its reply to the questionnaire because it was never asked to do so. It admits raising the question of sales under compensatory arrangements for the first time during the hearing on 9 July 1997, and in the summary of arguments on dumping produced on that occasion. Moreover, a document entitled Total Value of Compensatory Arrangements, listing those arrangements, was submitted to the Commission as an annex to the summary mentioned above. The contents of that document were then explained by the applicant in a fax sent to the Commission on 21 July 1997. ... 86. It might be wondered at this point what motivated Republica to argue that sales made on the basis of compensatory arrangements should be excluded from the calculation since, as stated in the extract just cited, the sales in question, some 24% of domestic sales, were at considerably lower than normal market prices. If they had been excluded, that should have led to a higher normal value and thus a higher dumping margin, contrary to Republica's apparent interest. The issue underlying Republica's claim is thus far from being as clear as that underlying Petrotub's claim. 87. However, a possible explanation was suggested by the Council at the hearing: exclusion of those sales might have meant that there were insufficient sales in the ordinary course of trade to calculate normal value, in which case a constructed normal value would have had to be established in accordance with Article 2(3) of the basic regulation, which might have been advantageous to Republica. In any event, the Council has not contended that the appeal is inadmissible on the ground that Republica has no interest in seeking the exclusion of the disputed transactions. 88. In the preamble to the contested regulation then adopted, the Council stated: One company claimed only at a very late stage in the proceeding (at the hearing for comments on provisional disclosure) that ... all sales made using compensation as means of payment should ... be excluded as not being in the ordinary course of trade. [That claim was] not made in an opportune manner, having been made neither in the response to the questionnaire, nor on-the-spot, nor at any subsequent stage of the proceeding when the company was invited to make comments. ... during the course of the investigation, it was found that sales made using compensation were indeed made in the ordinary course of trade. Consequently, [the claim was] rejected. 89. In Case T-34/98, Republica sought annulment of the contested regulation in so far as it concerned the applicant. It argued, as explained in paragraphs 69 to 71 of the judgment under appeal, that: 69 ... The request for exclusion, for the purposes of determining normal value, of sales made on the basis of compensatory arrangements was not ... made out of time, having regard to the time-limit laid down by Article 20(5) of the basic regulation. [(36)] 70 Moreover, under the third subparagraph of Article 2(1) of the basic regulation, it is for the Community institutions to establish, by means of checks during the investigation, whether domestic sales involved compensatory arrangements. If that is the case, there is a presumption that they were not made in the ordinary course of trade unless the Community institutions can establish that the prices applied were unaffected by the relationship. 71 By merely stating in recital 19 of the contested regulation that during the course of the investigation, it was found that sales made using compensation were indeed made in the ordinary course of trade, without indicating whether the Community institutions had examined whether the prices for sales based on those arrangements were affected by them, as required by the third subparagraph of Article 2(1) of the basic regulation, the contested regulation is vitiated by inadequacy of the statement of the reasons on which it is based. 90. The Council maintained that Republica's claim had been made too late and was unsubstantiated. 91. The Court of First Instance found, at paragraphs 74 and 75 of the judgment under appeal: 74 It is plain that the applicant has produced no evidence to show or any reason to conclude that the compensatory arrangements to which it refers, mentioned in the document entitled Total Value of Compensatory Arrangements relating to sales made on the basis of compensatory arrangements made during the investigation period, affected the prices charged in such transactions, as required by the third subparagraph of Article 2(1) of the basic regulation. 75 Moreover, in the absence of any contrary indication from the applicant, the Council gave, in the contested regulation, an adequate statement of the reasons for its refusal to exclude compensatory sales from the determination of normal value, by stating that it was found that sales made using compensation were indeed made in the ordinary course of trade. The appeal 92. Republica asks the Court to set aside the judgment under appeal and annul the contested regulation, in so far as those acts relate to it. It makes the same preliminary remarks as Petrotub (37) and puts forward a single plea to the effect that the Court of First Instance erred in law at paragraph 75 of its judgment by holding that the statement of reasons for the contested regulation was adequate as regards the refusal to exclude sales made using compensation from the determination of normal value. 93. Once it had accepted that it was dealing with sales made using compensation and thus with prices between parties which appear to be associated or to have a compensatory arrangement with each other, the Council was not free to use such prices to establish normal value without the proof required by the basic regulation that such prices were unaffected by the relationship. The Court of First Instance therefore erred in finding that, because ... the applicant has produced no evidence to show or any reason to conclude that the compensatory arrangements ... affected the prices charged in such transactions ..., the Council's statement of reasons was adequate. 94. The only statement given in the contested regulation and relied upon by the Court of First Instance, that during the course of the investigation, it was found that sales made using compensation were indeed made in the ordinary course of trade, merely reproduces the words of the provision in question, and cannot be an adequate statement of reasons. The Council should have explained, at least briefly, why those sales were indeed made in the ordinary course of trade, but it did not even go as far as the laconic statements of reasons approved of in Nicolet and Ferchimex. (38) Admissibility of the appeal 95. The Council and the Commission both consider that Republica's appeal is inadmissible essentially because it (i) does not identify any errors of law made by the Court of First Instance (but addresses the substance of the assessment in the contested regulation) and (ii) merely repeats arguments already put at first instance. 96. For essentially the same reasons as those I have set out with regard to Petrotub, (39) I disagree with those objections. At first instance, Republica argued that the contested regulation failed to state adequate reasons for finding that the transactions in issue were made in the ordinary course of trade; the Court of First Instance accepted that the reasoning was adequate in that it stated that it was found that sales made using compensation were indeed made in the ordinary course of trade, having also found as a fact that the applicant had produced no evidence to contradict that statement. In the appeal, Republica does not take issue with that finding of fact but is entitled in my view to argue that the Court of First Instance failed to give proper reasons for finding the statement of reasons adequate. Substance of the appeal 97. The Council, supported by the Commission, considers that the statement of reasons in the contested regulation was adequate; the aspect in question was not challenged during the administrative procedure, and Republica is wrong in its contention that the logical link between the text and the assessment must be explained. There was no need to add the reasons for concluding that the sales in question took place in the ordinary course of trade. In addition, recital 19 indicates that Republica's claim was rejected both because it was not justified and because it was made too late in the procedure; the Court of First Instance could have held simply that sufficient reasons had been stated on the first aspect. Even if its actual finding were held to be an error in law, the appeal should still be dismissed on the ground of lateness of the application. In its rejoinder, the Council argues that the plea is unfounded because Republica did not discharge its burden of proof during the administrative procedure. 98. The main issue between the parties is what they have described as the burden of proof, although the obligation to state reasons operates at a different level from proof, which is a matter of substantive assessment. However, the question to be answered is whether the Council was obliged to state its reasons for finding that the disputed sales were made in the ordinary course of trade if Republica had not substantiated its claim that they were not. 99. I take the view, in line with my reasoning with regard to Petrotub, that there was such an obligation. The first subparagraph of Article 2(1) lays down the basic rule for determining normal value (on the basis of prices paid or payable, in the ordinary course of trade, by independent customers in the exporting country). Under the third subparagraph, prices of the kind in issue may not be considered to be in the ordinary course of trade and may not be used to establish normal value unless it is determined that they are unaffected by the relationship. It is thus an exceptional departure from the normal procedure and requires an explanation going beyond a mere statement that the sales in question were indeed made in the ordinary course of trade - which provides no information from which to determine whether there may have been a manifest error of assessment - yet there was no such explanation in the contested regulation. 100. It is admittedly to be expected that exporters' interests will be the opposite of Republica's in the present case. They will usually wish to have transactions with associated parties or compensatory transactions - which are likely to be at lower prices than other transactions - included in the calculation of normal value which in turn will be lowered, thus reducing the extent of any dumping margin calculated on that basis. The onus of establishing that there are grounds for departing from the standard procedure will thus fall on the exporter and not on the Community institution in those circumstances. Here, however, for whatever reason, the position is reversed and that is accepted by the Council. 101. It is thus the Community institution which is seeking to depart from the standard method of calculation and its reasons for doing so must be stated in a manner sufficient to enable the Court to exercise its power of review and interested parties to ascertain the circumstances in which the Community anti-dumping rules were applied. If the Council had alleged and established bad faith on Republica's part, the situation would have been different, but it has not sought to do so and it must be assumed that there is no bad faith. 102. In this instance, moreover, there seems to be no evidence or allegation that any explanation was given to Republica at any stage. Both at first instance and on appeal, the Council has argued simply that Republica's request for the transactions to be excluded was presented too late and was not properly substantiated. However, assuming that Republica had a justifiable interest in the exclusion of the disputed transactions, it was for the Council to provide reasons for the exceptional course it took and not for the exporter to demonstrate, at any stage, why the normal course should be followed. 103. Consequently, the question whether Republica's request was submitted at too late a stage in the preliminary procedure is of no relevance. 104. I am therefore of the opinion that the contested regulation did not contain an adequate statement, such as to enable the Court to exercise its power of review and interested parties to ascertain the circumstances in which the Community anti-dumping rules were applied, of the reasons for departing from the normal basis of determining normal value to be used in accordance with Article 2(1) of the basic regulation. Consequences of possible success in one appeal and failure in the other 105. Both appellants argue that since (despite their objections) a single dumping margin and a single rate of duty were specified, any invalidity of one dumping margin renders the other invalid. 106. Since I have reached the view that the appeal should succeed independently in respect of both appellants, there is no need to consider this argument. However, if the Court were to uphold the appeal as regards one appellant and dismiss it as regards the other, that argument must fail in accordance with the Court's consistent case-law, most recently reaffirmed in Nachi Europe. (40) Conclusion 107. Since the contested regulation contains inadequate reasoning with regard to both appellants, which the Court of First Instance wrongly accepted as adequate, it is necessary to set aside the judgment under appeal. The state of the proceedings is such that the Court may itself give final judgment and annul the contested regulation with regard to Petrotub and Republica. Both the appellants have asked for costs at first instance and on appeal. 108. I am therefore of the opinion that the Court should: - set aside the judgment of the Court of First Instance in Joined Cases T-33/98 and T-34/98; - annul Council Regulation (EC) No 2320/97 in so far as it concerns the appellants; - order the Council to pay the costs at first instance and on appeal, except those of the Commission, which must bear its own costs. 1: - Original language: English. 2: - By judgment of 15 December 1999 in Joined Cases T-33/98 and T-34/98 Petrotub and Republica v Council [1999] ECR II-3837, hereinafter the judgment under appeal. 3: - Council Regulation (EC) No 2320/97 of 17 November 1997 imposing definitive anti-dumping duties on imports of certain seamless pipes and tubes of iron or non-alloy steel originating in Hungary, Poland, Russia, the Czech Republic, Romania and the Slovak Republic, repealing Regulation (EEC) No 1189/93 and terminating the proceeding in respect of such imports originating in the Republic of Croatia, OJ 1997 L 322, p. 1 (the contested regulation). 4: - Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community, OJ 1996 L 56, p. 1. 5: - See recitals 32 to 34 in the preamble to the basic regulation. 6: - Uruguay Round of Multilateral Trade Negotiations (1986-1994) - Annex 1 - Annex 1A - Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (WTO-GATT 1994), OJ 1994 L 336, p. 103; see recitals 3 to 5 in the preamble to the basic regulation. 7: - Further explanations may be found in, for example, Ivo Van Bael and Jean-François Bellis, Anti-Dumping and other Trade Protection Laws of the EC (3rd ed., 1996), paragraphs 338-340, or Clive Stanbrook and Philip Bentley, Dumping and Subsidies - The Law and Procedures Governing the Imposition of Anti-dumping and Countervailing Duties in the European Community (3rd ed., 1996), Chapter 3.4. 8: - In a real calculation, it would be necessary to distinguish between the ex-works and the c.i.f. prices, since dumping margins are calculated on the basis of a comparison between ex-works prices, but expressed as a percentage of the export price c.i.f. Community frontier; however, the illustration will be simpler, and will not be impaired, if the c.i.f. price is for the moment ignored. 9: - I shall leave dumping margins in absolute terms, although they are normally expressed as a percentage of c.i.f. prices, which I am omitting from these examples. 10: - If an anti-dumping duty is applied, however, it applies equally to undumped exports, although there is a (cumbersome) procedure, under Article 11(8) of the basic regulation, whereby importers may request a refund of anti-dumping duties if they can show that the dumping margin has been reduced or eliminated. 11: - The need to use specific methodology to deal with such situations has been accepted by the Court in Case 240/84 Toyo v Council [1987] ECR 1809, paragraph 23 of the judgment. 12: - GATT Committee on Anti-dumping Practices, panel report ADP/137 of 4 July 1995 (EC - Imposition of anti-dumping duties on imports of cotton yarn from Brazil), in particular at paragraphs 240-252 and 498-502. However, the arguments considered seem to have turned on issues of inflation rather than the justification for the technique itself. (The case concerned a previous version of the Anti-dumping Code.) 13: - European Communities - Anti-dumping duties on imports of cotton-type bed-linen from India, Panel report WT/DS141/R of 30 October 2000, in particular at paragraphs 6.102 and 6.117, and appellate body report WT/DS141/AB/R of 8 February 2001, especially at paragraph 55. 14: - See, with regard to that case, Council Regulation (EC) No 1644/2001 of 7 August 2001 amending Regulation (EC) No 2398/97 imposing a definitive anti-dumping duty on imports of cotton-type bed linen originating in Egypt, India and Pakistan and suspending its application with regard to imports originating in India, OJ 2001 L 219, p. 1; reassessment in line with the WTO rulings revealed a lower level of dumping - see recital 4 of the preamble. The same original regulation has very recently been further amended with regard to imports from Pakistan; applying the same considerations as in the case of India, the revised calculation shows no dumping at all for exports from Pakistan (Council Regulation (EC) No 160/2002 of 28 January 2002 amending Council Regulation (EC) No 2398/97 imposing a definitive anti-dumping duty on imports of cotton-type bed linen originating in Egypt, India and Pakistan, and terminating the proceeding with regard to imports originating in Pakistan, OJ 2002 L 26, p. 1; see in particular recitals 5, 6 and 13 in the preamble). 15: - Commission Regulation (EC) No 981/97 of 29 May 1997 imposing provisional anti-dumping duties on imports of certain seamless pipes and tubes of iron or non-alloy steel originating in Russia, the Czech Republic, Romania and the Slovak Republic, OJ 1997 L 141, p. 36. 16: - This should read Ferchimex v Council. 17: - Case 240/84 Toyo v Council, cited above in note 11, paragraph 23 of the judgment. 18: - 4 March 1996, World Trade Organisation G/ADP/W/301, G/SCM/W/309 (Annex V to the Appeal). 19: - See, most recently, the Order of the Court in Case C-351/99 P Eridania v Council [2001] ECR I-5007, paragraph 36. 20: - See also paragraphs 29 and 30 of my Opinion in Case C-154/99 P Politi v ETF [2000] ECR I-5019, with which the Court apparently agreed at paragraph 12 of its judgment. 21: - See Case C-367/95 P Commission v Sytraval and Brink's France [1998] ECR I-1719, paragraph 67 of the judgment, and Case C-265/97 P VBA v Florimex [2000] ECR 2061, paragraph 114. 22: - For an excellent and thoughtful review of the subject in a comparative context, see Martin Shapiro, The giving reasons requirement, University of Chicago Legal Forum 1992, p. 179. 23: - See, most recently, the judgment of 7 February 2002 in Case C-328/00 Weber, at paragraph 42; cf. also paragraph 106 of the judgment under appeal and, for a recent instance with regard to anti-dumping measures, Case T-87/98 International Potash Company [2000] ECR II-3179, paragraph 65. 24: - See, for example, Case 24/62 Germany v Commission [1963] ECR 63, at p. 69. 25: - Case 5/67 Beus [1968] ECR 83, at p. 95. 26: - See, for example, Case C-75/92 Gao Yao v Council [1994] ECR I-3141, paragraph 26 of the judgment. 27: - See, in a slightly different context, Case C-478/93 Netherlands v Commission [1995] ECR I-3081, paragraphs 49 and 50 of the judgment. 28: - Case 24/62 Germany v Commission, cited above in note 24, and Case 294/81 Control Data v Commission [1983] ECR 911, paragraphs 14 and 15. 29: - See the judgment in Nakajima, paragraphs 30 and 31, cited in paragraph 105 of the judgment under appeal. 30: - See, for example, Case C-315/90 Gimelec v Commission [1991] ECR I-5589, paragraph 27 of the judgment. 31: - Case C-350/88 Delacre v Commission [1990] ECR I-395, paragraph 15 of the judgment; see also Case 73/74 Papiers Peints v Commission [1975] ECR 1491, paragraph 31, and, for a recent confirmation, the judgment of 8 November 2001 in Case C-228/99 Silos e Mangimi Martini, paragraph 28. 32: - The famous parental reason of last resort, Because I say so, does not render the parental command reasonable to the child or to anyone else; Shapiro, op. cit., p. 192-3. 33: - It raised instead a plea of manifest error of appraisal (see paragraph 55 of the application at first instance and paragraphs 122 to 128 of the judgment under appeal). 34: - However, see paragraph 79 below. 35: - See paragraphs 8 to 20 above. 36: - Representations made after final disclosure is given shall be taken into consideration only if received within a period to be set by the Commission in each case, which shall be at least 10 days, due consideration being given to the urgency of the matter; final disclosure in the present case took place on 19 August 1997 (see paragraph 16 of the judgment under appeal). 37: - See paragraphs 24 and 25 above. 38: - Case 203/85 Nicolet [1986] ECR 2049, paragraph 10 of the judgment; Case T-164/94 Ferchimex v Council [1995] ECR II-2681, paragraph 118 of the judgment, cited by the Court of First Instance in paragraph 114 of the judgment under appeal. 39: - See paragraphs 38 to 40. 40: - Judgment in Case C-239/99 Nachi Europe [2001] ECR I-1197, in particular at paragraphs 22 to 27; see also my Opinion in the same case, especially at paragraphs 36 to 53.