61986CC0305_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
++++
Mr President,
Members of the Court,
I - Introduction
1 . By Regulation ( EEC ) No 3019/86 of 30 September 1986 the Commission imposed a provisional anti-dumping duty on imports of standardized multi-phase electric motors originating in Bulgaria, Czechoslovakia, the German Democratic Republic, Hungary, Poland, Romania and the USSR . ( 1 ) By Regulation ( EEC ) No 864/87 of 23 March 1987 the Council imposed a definitive anti-dumping duty on imports of the abovementioned electric motors originating in all the State-trading countries mentioned above but Romania . ( 2 ) Both regulations were adopted under the regulation then in force, namely Council Regulation ( EEC ) No 2176/84 of 23 July 1984 on protection against dumped or subsidized imports from countries not members of the European Economic Community . ( 3 )
2 . Three Community importers of electric motors ( namely the Italian undertaking, Enital, the German undertaking, Neotype Techmashexport ( hereinafter referred to as "Neotype ") and the French undertaking, Stanko France ( hereinafter referred to as "Stanko ") ) which are linked to the Soviet exporter, Energomachexport, challenge the legal validity of both the provisional regulation and the definitive regulation ( Joined Cases C-304/86 and C-185/87, Joined Cases C-305/86 and C-160/87, and Joined Cases C-320/86 and C-188/87 ). The Bulgarian exporter of electric motors, Electroimpex, and three Community importers of such products ( namely the French undertaking, Sofbim, and the German undertaking, Elprom-Verkaufs-GmbH, which are linked to Electroimpex, and the Italian undertaking, Elprom-Parma, which entered into an exclusive sales agreement with Electroimpex but is not linked to the latter ) contest the legal validity only of the definitive regulation ( Case C-157/87 ). The trade association known as the Groupement des industries de matériels d' équipement électrique et de l' électronique industrielle associée ( Association of electrical equipment and industrial electronic industies, hereinafter referred to as "Gimelec ") has intervened in all these cases in support of the Commission and the Council .
Since the abovementioned cases relate to the same regulations and the submissions and the arguments put forward by both the applicant and the defendants in the various cases to a large extent overlap, this Opinion is given in respect of all those cases .
As regards the facts, the course of the procedure and the submissions and arguments of the parties, reference is made to the various Reports for the Hearing . Those items shall only be referred to in this Opinion in so far as is necessary for the reasoning .
II - Admissibility
A - The admissibility of the applications brought against the provisional regulation
3 . First, it is necessary to examine whether the proceedings brought by Enital, Neotype and Stanko against the Commission regulation imposing a provisional anti-dumping duty is admissible, in view of the fact that the Council subsequently imposed a definitive anti-dumping duty .
In Case C-305/86 the Commission states that the provisional regulation no longer has legal effect since the definitive regulation provided for the definitive collection of the amounts secured by way of provisional duty at the level of the amounts calculated in accordance with the scale of definitive duties imposed . ( 4 ) Gimelec' s view is similar but is reasoned differently . According to the intervener, the imposition of a provisional anti-dumping duty constitutes an interim measure against which, as such, no proceedings may be brought on the basis of Article 173 of the Treaty . Neotype is the only applicant to have presented argument against the objection of inadmissibility . It asserts that the provisional regulation continues to have legal effect even after the imposition of a definitive anti-dumping duty .
4 . These observations by the parties were submitted before the Court gave judgment in the Technointorg ( 5 ) and Brother Industries ( 6 ) cases . In both cases the question arose whether, following the entry into force of the regulation imposing a definitive anti-dumping duty, the applicants still had an interest in challenging the regulation imposing a provisional anti-dumping duty . In both judgments the Court held that, having regard to the fact that the amounts secured by way of provisional duty had been collected in accordance with the scale of definitive anti-dumping duties in pursuance of the definitive regulation, the applicants were no longer entitled to rely on any legal effect arising from the provisional regulation .
Like the definitive regulation in issue in the abovementioned cases, Regulation No 864/87 similarly provided for the definitive collection of the amounts secured by way of provisional duty, and did so on the basis of the rules applicable to the collection of the definitive duty . In accordance with the abovementioned case-law of the Court, the challenge made by Enital, Neotype and Stanko against the provisional regulation has therefore lost its purpose and there is therefore no need to give a decision on their submissions in that regard . I may confine myself, therefore, to an examination of the submissions relied on against the definitive regulation .
B - The admissibility of the applications brought by the importers against the definitive regulation
5 . Gimelec requests the Court to declare inadmissible the application brought against the definitive regulation by the applicants in their capacity as importers established in the Community ( namely Enital, Neotype, Stanko, Sofbim, Elprom-Verkaufs-GmbH and Elprom-Parma ). It observes that the finding of dumping in Regulation No 864/87 was made by comparing the normal value of electric motors with the export price to the Community and not with the price at which the imported product was resold by the importer to an independent buyer . In Gimelec' s view, the importers in question are therefore in the same situation as the importer Demufert, whose action was declared inadmissible by the judgment given on 21 February 1984 in the Allied Corporation case . ( 7 )
6 . The Council and the Commission do not share that view . Their reasoning is as follows . Although the Council in the present case did not take into account the sales prices charged by connected importers in order to establish the dumping margin it did do so in determining the anti-dumping duty . When it appears to the customs authorities that there is, as between the importer and the exporter or a third party, an association or a compensatory arrangement within the meaning of Article 2(8)(b ) of Regulation No 2176/84 ( see Article 1(4 ) of the definitive regulation ), there is in fact a derogation from the general rule for determining the anti-dumping duty in the manner described in Article 1(3 ) of the definitive regulation . That rule is substituted by another rule whereby it is the price at which the product is resold to an independent buyer which serves as the basis for calculating the anti-dumping duty . According to the Council and the Commission, the important factor from the point of view of admissibility is that the Council did not merely impose that derogating provision on all connected importers but expressly declared it applicable to seven importers named in the regulation, amongst whom were Enital, Neotype, Stanko, Sofbim and Elprom-Verkaufs-GmbH . According to the Council and the Commission, those importers were therefore identified in the definitive regulation in the manner stated in the Court' s case-law .
Enital, Neotype and Stanko also refute the objection of inadmissibility raised by Gimelec . I refer to the various Reports for the Hearing for details of their arguments . ( 8 )
7 . Since the Court may of its own motion raise the admissibility of an application, it is not necessary for me here to go into the question whether an intervener may itself raise an objection of inadmissibility which has not been raised by one of the parties in support of whose conclusions it intervened .
I consider that the objection of inadmissibility which has been raised is not well founded, at least as regards associated importers . In the decision which it gave on 8 July 1987 in the Sermes case, ( 9 ) the Court summarized its case-law on the admissibility of applications against regulations imposing an anti-dumping duty . Although the Court stated at the outset that such regulations are, by their nature and their scope, legislative measures, it nevertheless accepted that importers are directly and individually concerned by such regulations when a finding of dumping is made on the basis of their resale prices, as provided for in Article 2(8)(b ) of Regulation No 2176/84 where there is an association between exporter and importer ( paragraph 16 of that order ).
In the judgment which it gave on 5 October 1988 in the Canon case, ( 10 ) the Court indicated at paragraph 8 that the situation mentioned above is illustrative and that the regulations in question may also be of direct and individual concern to importers by virtue of other provisions than those concerning a finding of dumping . That is the situation in the present cases since ( where there is an association between exporter and importer ), for the purpose of calculating anti-dumping duty account is to be taken ( see Article 1(4)(a ) of the definitive regulation ) of the customs value as determined in accordance with Article 6 of Regulation ( EEC ) No 1224/80, ( 11 ) that is to say a customs value based on the price at which the imported products are sold to independent buyers . ( 12 )
It follows, in my opinion, that all associated importers to whom this particular method of calculation is to be applied are directly and individually concerned by the regulation irrespective of whether they are individually named in the regulation .
8 . The foregoing does not apply to Elprom-Parma . That Italian importer of Bulgarian electric motors is not associated with a Bulgarian exporter or manufacturer . In its case the anti-dumping duty is not calculated on the basis of its resale price but in accordance with the net unit price, free-at-Community-frontier, not cleared through customs ( see Article 1(3 ) of the definitive regulation ). The fact that Elprom-Parma entered into an exclusive sales agreement with the exporter of Bulgarian electric motors does not change the situation . The Sermes case, mentioned above, also involved an exclusive importer of electric motors originating, in that case, in the German Democratic Republic . The Court did not consider that factor to be relevant ( paragraph 18 ). I therefore propose that the Court should declare the application brought by Elprom-Parma to be inadmissible, but should otherwise dismiss the objection of admissibility analysed above .
C - The admissibility of the application brought against the definitive regulation as a whole
9 . Neotype and Stanko request the Court to annul the definitive regulation in so far as it relates to imports of electric motors from the Soviet Union . The action brought by Electroimpex and Enital is more broadly based . They request the annulment of the definitive regulation in its entirety .
In four judgments of 7 May 1987 the Court held that an application for annulment against an anti-dumping regulation is admissible only in so far as it is directed against provisions of that regulation which are of individual concern to the applicants . ( 13 ) Therefore the substance of the applications brought by Electroimpex and Enital fall to be examined only in so far as they seek the annulment of those provisions of the definitive regulation which relate to the importation of electric motors originating in Bulgaria and the Soviet Union respectively .
III - The substance
General
10 . Hereinafter I will successively examine the applicants' submissions against the definitive regulation as regards the determination of normal value ( A ), the comparison of normal value with the export price ( B ), the assessment of injury ( C ), the determination of the anti-dumping duty(D ), the application of the duty to spare parts ( E ) and the entry into force of the definitive regulation ( F ).
I would state straight away that I find none of these submissions convincing . Moreover, even if some of them were held to be well founded that would not automatically entail the nullity of the definitive regulation . That particularly applies to the allegations that the Council overestimated the dumping margin . In fact, the applicants have not shown that, had the calculation been more accurate, the dumping margin would have disappeared or would have been reduced to a level lower than the anti-dumping duty imposed . Any such evidence would be difficult to adduce in view of the fact that the Council found considerable dumping margins varying between 121 and 146% ( 14 ) but none the less imposed a moderate anti-dumping duty, namely a variable duty calculated according to the difference between the price to the first independent buyer and a minimum price calculated on the basis of the production costs of the most efficient industrial producers, to which was added a profit margin of 4 %. The anti-dumping duty thereby fixed represents an increase of approximately 25% in relation to the import prices during the reference period . Thus the anti-dumping duty is clearly lower than the dumping margins established . ( 15 )
A - Normal value
Applicable provisions
11 . The concept of dumping involves a comparison between two items . In principle those are : the export price of the relevant product and the normal value of a like product . In accordance with Article 2(3)(a ) of Regulation No 2176/84 the normal value is understood to be :
"the comparable price actually paid or payable in the ordinary course of trade for the like product intended for consumption in the exporting country or country of origin ".
When the product is imported from a country not having a market economy, the Community institutions cannot base themselves on the price of that product on the domestic market because that price does not result from the "ordinary course of trade ". For that reason Article 2(5 ) of Regulation No 2176/84 provides in such a case for the normal value to be determined "in an appropriate and not unreasonable manner" on the basis of one of the following criteria : the price at which the like product of a market-economy third country is actually sold for consumption on the domestic market of that country or to other countries, or the constructed value of the like product in a market-economy third country, or, when neither the first nor the second criterion provides a sufficient basis, the price actually paid or payable in the Community for the like product .
Article 2(12 ) of Regulation No 2176/84 provides that "like product" is to mean a product which
"is identical, i.e . alike in all respects to the product under consideration, or in the absence of such a product, another product which has characteristics closely resembling those of the product under consideration ".
Summary of the applicants' submissions
12 . In the course of the investigation which led to the imposition of a definitive anti-dumping duty, the Commission chose - and the Council was in agreement - Yugoslavia as the "market-economy third country ". Thus, the weighted average of Yugoslav producers' domestic selling prices was taken in order definitively to establish the normal value of products originating in the State-trading countries in question ( Regulation No 864/87, paragraph 8 of the preamble ).
Enital, ( 16 ) Neotype, ( 17 ) Stanko ( 18 ) and Electroimpex ( 19 ) contend that the Council committed serious errors of judgment in calculating the normal value of the electric motors . I consider that their ( numerous ) submissions may be grouped together in three categories . The first submission is that the electric motors manufactured in Yugoslavia are not "like products" in regard to electric motors exported from the Soviet Union ( Enital ). The second category of submissions seeks to challenge the choice of Yugoslavia as the reference country : ( 1 ) the decision to choose Yugoslavia as the reference country instead of one of the countries proposed in the stages preceding the adoption of the definitive regulation is not supported by an adequate statement of reasons ( Neotype and Stanko ); ( 2 ) Yugoslavia, it is argued, cannot be regarded as a country having a market economy ( Neotype, Stanko and Electroimpex ); ( 3 ) even if Yugoslavia is deemed to have a market economy the choice of that country is neither appropriate nor reasonable in view of the manner in which domestic prices for electric motors are determined there ( Neotype and Stanko ). The third category of submissions concern the method of calculating normal value : ( 1 ) and ( 2 ) the Council and the Commission committed an error in calculating the normal value by wrongly taking as their basis the official dinar rate ( Neotype and Stanko ) and by not taking into account the high rate of inflation in Yugoslavia ( Neotype, Stanko and Electroimpex ); ( 3 ) the normal value should have been determined on the basis of the constructed value in accordance with Article 2(5)(b ) of Regulation No 2176/84 ( Stanko ).
Assessment
13 . The answer to this question is, it seems to me, simple . The products referred to in the definitive regulation are standardized multi-phase electric motors, that is to say electric motors in respect of which there is a very advanced form of standardization at international level . Motors manufactured in accordance with those standardization norms may therefore be regarded as having great similarities from the point of view of physical characteristics and, as being mutually interchangeable from the users' point of view . It is not disputed that the Yugoslavian electric motors chosen for reference purposes were manufactured in accordance with the abovementioned standardization norms . That product is therefore a "like product" within the meaning of Article 2(12 ) of Regulation No 2176/84 .
( a ) The statement of reasons
14 . Neotype and Stanko take the view that the definitive regulation does not contain a sufficient statement of reasons for the choice of the reference country . They observe in particular that the regulation does not explain why countries which had been proposed as reference countries at stages prior to the imposition of the definitive anti-dumping duty ( that is Brazil in the context of Commission Regulation ( EEC ) No 724/82 of 30 March 1982 ( 20 ) and Sweden in the context of the provisional regulation ), were no longer deemed appropriate as reference countries .
In accordance with the Court' s consistent case-law, ( 21 ) the statement of reasons required by Article 190 of the EEC Treaty must disclose in a clear and unequivocal fashion the reasoning followed by the Community authority which adopted the measure in question in such a way as to make the persons concerned aware of the reasons for the measure and thus enable them to defend their rights and to enable the Court to exercise its supervisory jurisdiction . If that case-law is applied to the situation before the Court, I do not think that the institutions have fallen short of their obligation to give reasons when they stated the main grounds on which they considered the prices charged in the country ultimately chosen for reference purposes as an "appropriate and not unreasonable" basis for calculating the normal value . In that respect I consider that the Council, in recitals 6 to 8 to Regulation No 864/87, gave adequate reasons for choosing the Yugoslav prices .
( b ) Is Yugoslavia a market-economy country?
15 . Neotype, Stanko and Electroimpex dispute that Yugoslavia can be regarded as a market-economy country .
On that point I would first point out that it is the settled practice of the Council and the Commission to regard Yugoslavia as a market-economy country for the purpose of calculating the normal value of "dumped" products originating in Yugoslavia . Similarly, the Council and the Commission regularly take the prices charged on the Yugoslav market as the basis for determining the normal value of products originating in State-trading countries . ( 22 ). This practice is based on Article 2(5 ) of Regulation No 2176/84 . That provision provides no definition of the concept of "non-market economy countries", but refers to Regulations ( EEC ) Nos 1765/82 ( 23 ) and 1766/82, ( 24 ) which designate the countries which must in any event be regarded as non-market-economy countries . Yugoslavia is not listed amongst the countries cited in those regulations .
The words "in particular" used in Article 2(5 ) of Regulation No 2176/84 indicate that the institutions may also deem a country not listed amongst the countries mentioned in the aforementioned regulation to be a non-market-economy country . In the case of countries which are parties to GATT, ( 25 ) the institutions must however take account of note 2 to Article VI of GATT . In that note a derogation from the normal method of price comparison is recognized only in the case of an exporting country with a State monopoly of trade in which prices are determined by the State authorities . ( 26 ) That is clearly not the case in Yugoslavia as may be seen from the documents annexed by Neotype to its application . ( 27 )
Moreover, in the abovementioned Technointorg judgment the Court, if not expressly then by implication, recognized Yugoslavia as a market-economy country . That case involved an anti-dumping regulation in which Yugoslavia had been chosen as the reference country for determining the normal value of deep-freezers exported from the Soviet Union . In that case Technointorg had contended that the constructed value of the relevant product in Yugoslavia should have been used as the criterion for determining the normal value and not the prices charged on the Yugoslavian market . The Court held that Technointorg had not shown that, by choosing to establish the normal value on the basis of prices on the Yugoslav domestic market, the institutions acted incorrectly .
The foregoing considerations do not mean that the Yugoslav economy does not in certain respects show a similarity with State-trading countries . For example the shortage of foreign currency seems to me to be a significant common characteristic . That factor is not however sufficient to enable Yugoslavia to be regarded as a non-market-economy country for the purposes of the anti-dumping rules . On the other hand the points of similarity mean that Yugoslavia is particularly appropriate as a reference country in calculating the normal value of a product from a State-trading country .
( c ) Do the Yugoslav prices constitute an appropriate and reasonable basis for comparison?
16 . Even if Yugoslavia is deemed to be a country with a market economy, Neotype, Stanko and Electroimpex dispute the choice of Yugoslav prices as an appropriate and reasonable basis of comparison .
17 . In choosing a reference country the institutions must, in my view, try to find a country where the prices of the like product are formed in circumstances which are as comparable as possible to those of the exporting country, provided that it is a market-economy country . The normal value determined on the basis of data relating to a reference country never provides a perfect basis for comparison . Each reference country presents specific problems . Article 2(5 ) of Regulation No 2176/84 therefore merely states that the choice of the reference country must be "appropriate and not unreasonable ".
It follows that the institutions enjoy a wide margin of discretion in this connection and that the Court' s review must be limited to examining whether irregularities were committed in the exercise of that discretion . That means that the Court must verify whether the conditions provided for by the law for the exercise of that discretionary power are fulfilled and whether the procedural guarantees have been observed, whether the factual circumstances on the basis of which the contested decisions were adopted are established and have been correctly assessed and whether the discretionary power was exercised in accordance with the principles of sound administration . ( 28 ) In order to establish whether that is the case here, it is useful to recall the reasons which prompted the Commission and the Council to choose Yugoslavia as the reference country . ( 29 )
18 . Following the imposition of a provisional anti-dumping duty by way of Regulation No 3019/86 - in which the Commission chose Sweden as the reference country - the Commission received a complaint that imported electric motors originating in Yugoslavia were being dumped . The Commission then began an investigation which gave it the opportunity of becoming acquainted with the Yugoslav market and conducting on-the-spot inspections with three Yugoslav manufacturers and exporters of electric motors . Although the anti-dumping proceeding with regard to imports originating in Yugoslavia - for the purposes of which the normal value was determined on the basis of the prices charged on the Yugoslav market - was independent of the proceeding which led to the adoption of Regulation No 864/87, the subject of these proceedings, it nevertheless dealt with like products . In order to place all countries exporting to the Community and concerned by both proceedings on the same footing, the institutions discarded Sweden which had been used as the reference country in the context of the provisional regulation, and in the definitive regulation chose the prices charged on the Yugoslav market as the basis of comparison for the determination of the normal value .
In the circumstances it seems to me that the choice of Yugoslavia as the reference country is in no way arbitrary but was inspired by considerations of sound administration . In making that choice did the institutions commit any irregularities or errors of assessment? That is not, it seems to me, the case, as may be seen from an analysis of the arguments put forward by the applicants, and in particular by Neotype, in this connection .
19 . Neotype submits that the Yugoslav market for electric motors is relatively small and that practically no imported motors are sold in it . Neotype also considers that the prices of electric motors sold on the Yugoslav market are not determined by the interplay of supply and demand and therefore do not afford an appropriate basis for comparison .
The Council and the Commission contend on the other hand that the Yugoslav market is a relevant market in which approximately 250 000 electric motors manufactured by three Yugoslav manufacturers are sold each year . They also point out that those manufacturers are in competition as regards the production of the same range of motors . In reply to questions put to them by the Court, the Council and the Commission stated that the Yugoslav manufacturers may freely determine both their import and export prices ( see also above, at paragraph 15, note 27 ) and that, at the time of the investigation, there were not insignificant price differences on the Yugoslav market, if not as regards the gross price, at least as regards the net price invoiced to customers . In fact significant differences existed with regard to payment periods which is of considerable importance in a country with high inflation . The applicants have submitted no specific evidence in order to invalidate these findings .
In the circumstances the choice of Yugoslav prices as the basis of comparison was not, it seems to me, irregular, but fell within the limits of the discretion enjoyed by the Council and the Commission . That seems to me to be all the more so since the choice of Yugoslav prices led to a finding of a significantly smaller dumping margin ( varying from 121 to 146 %), thus one more favourable to the applicants, than if Sweden had been chosen as the reference country ( margin varying between 192 and 283 %). Moreover, none of the applicants has shown that a comparison with the prices charged in a non-member country would have led to a smaller dumping margin still .
( a ) The rate of exchange of the Yugoslav dinar
20 . Neotype' s view that, instead of the official dinar rate, the buying rate as established by Western banks should have been used for the conversion of Yugoslav prices does not carry conviction .
For the sake of comprehension, the problem should be placed in its general context, that is to say in the context of the provisions on the establishment of the dumping margin . In accordance with Article 2(13)(a ) of Regulation No 2176/84, the dumping margin is established by comparing the export price with the normal value . ( 30 ) As regards products exported from a market-economy country the normal value is in principle established on the basis of the price payable for a like product intended for consumption in the relevant country ( see Article 2(3)(a ) of Regulation No 2176/84 ). In such a situation, two amounts are involved in the finding of the dumping margin - the export price and the price payable for consumption on the domestic market - both formed on the basis of actual transactions, but usually expressed in different currencies . For the purposes of comparison both amounts must then be converted into the same currency .
As the Court held in Nachi Fujikoshi ( paragraph 53 ) that conversion must be effected
"in the light of the official exchange rates on the basis of which international trade transactions take place ".
The rate of exchange of the dinar fixed by the Yugoslav authorities is the only official rate of exchange recognized as such by the International Monetary Fund ( 31 ) All commercial transactions with foreign countries, whether import or export operations, must be conducted through the intermediary of specially recognized banks which apply the official rate of exchange for the conversion of dinars into foreign currency or vice versa . The bank rate suggested by Neotype is not an official rate . Moreover, it is a bank note rate defined on a market which is hardly relevant to and representative of commercial transactions since it relates only to a small volume and functions erratically . In fact the market derives principally from transactions carried out by individuals who wish to acquire dinars in bank notes for the purposes of a stay in Yugoslavia . That is illustrated in particular by the considerable variation in the rate for notes from establishment to establishment . Within the same establishment, moreover, the buying and selling prices differ widely . The exchange rate suggested by Neotype is not an average rate but a buyer' s rate . In the determination of a dumping margin, where it is a question of comparing two amounts expressed in different currencies, the use of a buyer' s rate, it seems to me, is also incorrect .
21 . Neotype does not reject the use of the official dinar rate in an anti-dumping proceeding relating to imports of electric motors originating in Yugoslavia . It is, however, of the opinion that, in the context of an anti-dumping proceeding in which Yugoslavia is not the exporting country but is the reference country for determining the normal value of products originating in the Soviet Union, it is no longer the official rate which should be used but the abovementioned bank rate .
I cannot agree with that argument . I do not see why an unofficial dinar rate unrepresentative of commercial transactions should be used in order to determine the dumping margin in respect of products originating in the Soviet Union, when this rate, on account of its characteristics, cannot be used to establish the dumping margin of goods originating in Yugoslavia itself . Moreover, it is well known that it is the official rate of the rouble ( and not the much lower buying rate used by Western banks ) which is in fact used for commercial transactions with Soviet exporters or importers . Were one to follow Neotype' s suggestion, in establishing the dumping margin for products originating in the Soviet Union a rate would have to be applied which was considerably more advantageous for Soviet exporters than the rate in fact applied for the conversion of the proceeds of their sales .
( b ) Yugoslav inflation
22 . Neotype, Stanko and Electroimpex further contend that the normal value established by the institutions cannot be used as a basis of comparison because it does not take account of the high Yugoslav inflation rate which, during the period of the investigation, was running at about 80% per annum .
In reply to a question on this point from the Court, the Council and the Commission stated that in the definitive regulation normal value is established on the basis of the weighted average of domestic sales prices charged by Yugoslav producers during the course of the 1985 reference year . According to both institutions, the difference between the rate of inflation in the EEC and the Yugoslav rate of inflation was reflected in that year in the development of the official ecu-dinar exchange rate . Whereas in January 1985 the relationship between the ecu and the dinar was still 1 to 147, by December 1985 it had become 1 to 264 . The increase in value of the ecu in relation to the dinar corresponds therefore to the Yugoslav inflation rate so that the Council and the Commission did not deem it necessary specifically to take account of Yugoslav inflation in establishing the normal value .
I do not consider that the view formed by the Council and the Commission can be regarded as erroneous .
( c ) The calculation on the basis of the constructed value
23 . Stanko contends that the normal value ought to have been calculated on the basis of the constructed value taking account of the production costs borne by the Yugoslav manufacturers in accordance with Article 2(5)(b ) of Regulation No 2176/84 .
On that point the Council replies that the proposed calculation on the basis of the constructed value is only appropriate when the normal value cannot be established on the basis of domestic prices .
The Court expressly confirmed this view taken by the Council in its abovementioned judgment of 5 October 1988 in the Technointorg case . In that case the Court held that the constructed value is only to be used where it would be unreasonable in the circumstances to use the domestic price ( paragraph 30 ).
However it is not apparent from the arguments discussed above that to calculate the normal value on the basis of the domestic Yugoslav prices would be unreasonable . That submission must therefore also be rejected .
B - Comparison of the normal value with the export price
Applicable provisions
24 . Under the terms of Regulation No 2176/84 the export price and the normal value of the "dumped" product must be on a comparable basis as regards physical characteristics of the product, quantities and conditions and terms of sale ( Article 2(9 ) ). If the export price and the normal value are not comparable as regards those factors, due allowance is to be made in each case, on its merits, for differences affecting price comparability . Where an interested party claims such an allowance, it must prove that its claim is justified ( Article 2(10 ) ).
Summary of the applicants' arguments
25 . Enital, ( 32 ) Stanko ( 33 ) and Electroimpex ( 34 ) criticize the Council and the Commission for not taking account of numerous differences existing between the various electric motors .
Enital points to differences in the physical characteristics which are said to exist between the Yugoslav electric motors and the exported electric motors, although it does so in support of its view that the motors do not constitute a "like product ". I have already stated ( at paragraph 13 ) that this argument does not carry conviction . For the sake of completeness I wish however to examine whether the differences relied on ought to have led to a price correction . According to Enital the component materials used in the production of electric motors in the Soviet Union are of poorer quality than those used in Yugoslavia, ( 35 ) the content in active components of motors is less than Yugoslav motors, no account was taken of technical differences in electricity input, axle height and noise and vibration levels .
For its part Stanko relies on the following differences between the electric motors produced respectively in the Soviet Union, in Yugoslavia and in the Community, to which the Council and the Commission are alleged to have paid no regard :
( i ) difference in the rationalization of production having regard to the small scale of the Yugoslav market and the lack of any real competition on that market;
( ii ) difference in production costs having regard to the higher wage costs borne by Yugoslav manufacturers;
( iii ) differences in regard to technical characteristics, packaging and transport costs;
( iv ) costs entailed in adjusting the products to the technical norms of the importing countries;
( v ) lower quality of the imported products;
( vi ) poorer reputation of the imported products;
( vii ) less effective after-sales service;
( viii ) costs incurred by the importer as a result of the establishment of an extensive stock of products .
Finally, Electroimpex sets out a number of differences existing between Bulgarian electric motors and the electric motors produced in the Community . According to Electroimpex, those differences show that the quality of motors produced in the Community is clearly higher so that Bulgarian motors are not truly competing products .
Assessment
26 . Under the terms of Article 2(10 ) of Regulation No 2176/84 the parties who wish a correction to be made on account of differences in physical characteristics must request the correction during the investigation procedure, and must prove that such differences affect price comparability . The differences indicated by Enital were already raised in the investigation preceding the adoption of the definitive regulation ( see 12th recital, first paragraph, second indent, of Regulation No 864/87 ). The Commission thereupon conducted an investigation . It appeared therefrom that the use of materials of different origins and the degree of enhancement by the various producers of the active material content of their motors did not result in differences in physical characteristics, nor in other differences affecting price comparability . With regard to differences in physical characteristics, however, an exception was made in respect of ball-bearings ( see 12th recital, second and third paragraphs, of Regulation No 864/87 ).
In the course of that investigation did the Commission overlook any factors? That is not alleged by Enital . Did the institutions, in the context of that investigation, commit an error of assessment? That is alleged by implication by Enital, but it adduces no evidence, so that the Court is not in a position to examine whether the institutions did commit an error . The submission based on the alleged differences in physical characteristics cannot therefore be upheld .
27 . The differences raised by Stanko cannot support the assertion that the institutions compared the export price and the normal value on an incorrect basis . First of all, it should be observed that these differences have been indicated in very general terms and are not supported by evidence . Moreover, contrary to Stanko' s assertions, the Council did in fact take account of differences which may be regarded as differences in conditions of sale, in particular as regards warranties, packing and transport ( see the 11th recital of Regulation No 864/87 ). As regards most of the other differences pointed to by Stanko, it should be observed that they do not fall within any of the categories of factors mentioned in Article 2(9 ) and ( 10 ) of Regulation No 2176/84 . In the abovementioned judgment in the Technointorg case ( paragraph 34 ) the Court stated that allowances may be made only on the basis of the factors mentioned in paragraphs 9 and 10 of that article ( differences in physical characteristics, quantities, conditions and terms of sale, and import charges and indirect taxes ). However, differences such as production rationalization, wage costs, reputation of the imported goods and efficiency of the after-sales service are not included amongst those factors . Finally, the Council observes in its defence that, in determining the amount of anti-dumping duty, it took into consideration a very large average profit margin for importers ( 40% of the import price ). In doing so, the Council enabled importers to absorb on a flat-rate basis the costs arising from the adaptation of imported electric motors to the norms in force on the Community market . Such a large profit margin must also have enabled importers to cover the costs involved in establishing and maintaining considerable stocks .
Having regard to the foregoing, the submission based on the differences between products raised by Stanko cannot in my view be accepted .
28 . As regards, finally, the differences raised by Electroimpex between Bulgarian motors and motors produced in the Community, it is sufficient to observe that such differences are not referred to in Article 2(9 ) and ( 10 ) of Regulation No 2176/84 . Those provisions deal with the adjustments necessary in order to enable there to be a correct comparison between the export price and the normal value of the dumped product . Differences as between the dumped product and the product manufactured in the Community are not covered by those provisions . Should such differences exist Electroimpex could assert that the imported product is not a "like" product with the product produced in the Community and that it could not therefore cause injury to Community products . However, I have already pointed out ( at paragraph 13 above ) that the definitive regulation concerns standardized electric motors which, irrespective of their origin, are "like products" within the meaning of Article 2(12 ) of Regulation No 2176/84 . It will become apparent from what I am going to set out below ( at paragraphs 31 to 36 ) that the Council was entitled to find that dumped imports of electric motors originating from the State-trading countries in question caused significant injury to Community producers . In those circumstances any submission in that regard by Electroimpex is also unfounded .
C - Injury
Applicable provisions
29 . Under Article 2(1 ) of Regulation No 2176/84 it is not sufficient that in relation to a given product dumping is taking place in order for an anti-dumping duty to be imposed . The importation into the Community of the dumped product must also cause injury . Article 4 of the abovementioned regulation defines what is to be understood by injury . It must be a significant injury ( or the threat of injury ) to the detriment of an established Community industry . The article sums up the factors to which an examination of injury is to have regard and states that no one or several of those factors are necessarily decisive in making the assessment .
Summary of the applicants' submissions
30 . All the applicants dispute the manner in which the Council made its determination of injury :
( 36 ) ( 1 ) the Council ought not to have established injury on the basis of global imports into the Community of electric motors from the relevant State-trading countries but ought to have established injury for each exporting country separately ( Stanko and Electroimpex ); ( 2 ) the Council ought not to have calculated the market share of State-trading countries on the basis of imported products but should have taken the actual sales in the Community as the criterion ( Neotype ); ( 3 ) there can be no question of injury in view of the fact that the number of electric motors produced in the Community went up during the reference period and the market share of the State-trading countries concerned went down during the same period ( all applicants ). With regard to the period 1977 to 1981, imports of electric motors originating in the countries concerned even went down in absolute terms ( Neotype ); ( 4 ) in so far as there can be said to be injury there is no causal link between the injury and the dumped imports of electric motors from the countries concerned . The injury, it is alleged, is attributable to other factors, inter alia to an increase in intra-Community competition under the pressure of Italian producers first and foremost ( Enital and Stanko ). On that point the definitive regulation does not contain an adequate statement of reasons ( Enital ).
Assessment
31 . Stanko and Electroimpex consider that the Council acted incorrectly in determining injury on the basis of the consequences of global dumped imports from the relevant State-trading countries .
In that connection I would observe that Regulation No 2176/84 does not impose an obligation to determine the injury suffered by the Community in respect of each exporting country taken separately, just as it does not require a separate assessment of the injury caused by each exporter or exclusive importer . On the contrary, as the Court held in the abovementioned Technointorg judgment ( paragraph 41 ), the combined effect of imports of dumped products originating in different countries must in principle be assessed .
In the 19th recital of the definitive regulation the Council gave a detailed account of the reasons why, in determining definitive injury, it took into account all the dumped imports originating from all the exporters concerned by the proceeding . In adopting that decision the Council applied the usual criteria for conducting an overall assessment, namely the comparability and the interchangeability of the imported products and the similarity of prices from one exporter to another .
In those circumstances there was no reason for the Council to derogate from the principle that injury should be assessed cumulatively .
in the Community?
32 . Neotype alleges that the Council imposed the definitive anti-dumping duty on the basis of erroneous figures as to the market share of electric motors originating in State-trading countries . That market share was calculated on the basis of import figures whereas, according to Neotype, the figures for actual sales in the Community ought to have formed the basis for the calculation . There was a difference between these two figures having regard above all to the necessity on the part of importers to establish major stocks .
The latter argument is not in my view sufficient to show that the Council made an erroneous determination of injury . The choice made by the institutions to calculate market share on the basis of import figures, thus allowing the use of statistics based on customs data, seems to me entirely justified owing to the greater reliability of that method of calculation . Moreover, it may be assumed that the need for considerable stocks will lead to a difference between import figures and sales figures only during the start-up period .
sales and production figures for electric motors in the Community?
33 . All the applicants are of the opinion that it was not possible for the Council to make a determination of injury, having regard to the development of production and sales figures during the reference period ( 1982 to 1985 ). They point out that, on the one hand, EEC production of electric motors went up in absolute terms from 907 000 in 1982 to 990 000 in 1985 and that, on the other hand, the market share of the relevant State-trading countries fell ( according to paragraph 31 of the definitive regulation, from 23% in 1982 to 19.6% in 1985 ). Neotype further points out that, when the figures relating to a longer period are analysed, imports of electric motors from State-trading countries fell even in absolute terms . In particular imports in 1985 represent only 75% of imports in the years 1979 to 1981 .
34 . On the last point it must be stated that the anti-dumping proceeding which led to Regulation No 864/87 was opened in order to examine whether the undertakings to increase prices given by exporters from State-trading countries and accepted by the Council and the Commission in the context of a previous proceeding ( 37 ) were sufficient in order to eliminate the injurious effects of the dumped imports . The figures for the period 1981 to 1982 were therefore already taken into account in the context of that earlier anti-dumping proceeding . In regard to the proceeding under discussion in this case it was important to study the trend in the figures after 1982 in order to ascertain whether the injury found to exist in the previous proceeding had been eliminated .
35 . In their submission on injury the applicants highlighted two factors ( the increase in Community production of electric motors and the improvement in the market share of Community producers ). From that they infer that there was no basis on which the Council could make a finding of injury . However, it appears from recitals 17 to 32 of the definitive regulation, which reflect paragraphs 18 to 33 of the provisional regulation, that the Council made its determination of injury on the basis of various factors which are all mentioned expressly in Article 4(2 ) of Regulation No 2176/84, namely :
( i ) An increase in absolute terms in the volume of dumped imports ( Article 4(2)(a ) )
Cumulated imports of electric motors from the relevant State-trading countries amounted to 716 000 items in 1982, falling to 604 000 in 1983 and rising to 689 500 items in 1984 and 748 300 in 1985, that is to say a higher level in absolute terms than in 1982 . ( 38 )
( ii ) Significant price undercutting ( Article 4(2)(b ) )
The resale prices of electric motors originating from State-trading countries during the reference period was far below the cost price and the sales prices of the most efficient Community manufacturers . ( 39 )
( iii ) The impact on the Community industry ( Article 4(2)(c ) )
It appears from the documents before the Court that EEC producers, in the face of competition from motors imported with a significant dumping margin from State-trading countries, opted for market-share maintenance . However, that compelled them to sell their electric motors at prices far beneath those needed in order to cover their production costs . The Council found that, in spite of the improvement in the economic situation and consumption in the Community, all but two Community producers investigated were unable to operate at a profit in the field of electric motors . In addition, the number of workers immediately engaged in the production of electric motors continued to decline between 1982 and 1985 . ( 40 )
In those circumstances, it seems to me that the finding that the dumping of electric motors from the State-trading countries in question has caused significant injury to Community producers did not exceed the Council' s margin of discretion .
36 . Stanko and Enital contend finally that the Council has not proven that the injury suffered by the Community is a result of imports originating in State-trading countries . In their view, the operating losses of many Community producers are attributable to intra-Community competition as a result of pressure from Italian producers .
That argument is put forward by the abovementioned parties in such summary form as to carry no conviction . Their argument is in stark contrast to the manner in which the Council demonstrated the link between injury and imports from the relevant countries in the definitive regulation . In that context the Council paid particular attention to the argument, already raised during the investigation procedure, as to the impact of certain Italian producers and gave an adequate statement of the grounds on which it had rejected that argument . ( 41 ) Neither of these two parties have therefore shown that the Council committed an error of judgment on that point .
D - The determination of the anti-dumping duty
Applicable provisions
37 . Article 1(4)(a ) of the definitive regulation contains a special provision for determining the anti-dumping duty where it appears that the importer and the exporter are associated undertakings :
"In this case the net unit price, free-at-Community-frontier, shall be the customs value as determined in accordance with Article 6 of Regulation ( EEC ) No 1224/80 . Failing this, in cases where, for an associated importer, it is not possible to determine the customs value in accordance with the foregoing provisions, the net, free-at-frontier price shall correspond to the customs value as determined in accordance with Article 2(3 ) of the said regulation ."
Article 6(1)(a ) of Regulation No 1224/80 provides as follows :
"1.(a ) If the imported goods or identical or similar imported goods are sold in the Community in the condition as imported, the customs value of imported goods ... shall be based on the unit price at which the imported goods are so sold ... at or about the time of the importation of the goods being valued, to persons who are not related to the persons from whom they buy such goods ..."
Article 6(1)(b ) thereof further provides :
"1.(b ) If neither the imported goods nor identical nor similar imported goods are sold at or about the time of importation of the goods being valued, the customs value of the imported goods ... shall ... be based on the unit price at which the imported goods or identical or similar imported goods are sold in the Community in the condition as imported at the earliest date after the importation of the goods being valued but before the expiration of 90 days after such importation ."
Finally, Article 2(3 ) thereof provides as follows :
"3 . Where the customs value of imported goods cannot be determined under Article 3, 4, 5, 6 or 7, it shall be determined using reasonable means consistent with the principles and general provisions of the agreement and of Article VII of the General Agreement on Tariffs and Trade and on the basis of data available in the Community ."
Summary of Neotype' s submissions
38 . Neotype contends that the manner in which the Council determined the anti-dumping duty in the case of associated importers conflicts in two respects with Community law . First, Regulation No 2176/84 does not give the Council the power to impose an anti-dumping duty which varies according to the price at which the imported product is resold for the first time to an independent buyer . Secondly, the method adopted by the Council is said to be too inaccurate for the anti-dumping duty to be determined with any certainty . When the customs value of imported goods cannot be determined in accordance with Article 6 of Regulation No 1224/80 ( that is if within 90 days of importation neither the imported goods nor identical nor similar imported goods are sold ), the customs value must, in accordance with Article 2(3 ) of that regulation, be determined "using reasonable means ". On account of its general nature the latter criterion cannot be used as a basis for fixing an anti-dumping duty .
Assessment
39 . Neither Regulation No 2176/84 nor the GATT dumping provisions stipulate the form to be taken by anti-dumping measures . Article 13(8 ) provides that anti-dumping duties are to be collected by the Member States
"in the form, at the rate and according to the other criteria laid down when the duties were imposed ...".
I agree with the Council that the institutions, within that legal framework, are at liberty to impose anti-dumping measures in the form which appears to them to be most appropriate in order to eliminate injury caused by dumping . In that connection they regularly make use of a variable duty calculated according to the difference between a minimum price and the export price ( or the price paid by the first independent purchaser ). A variable duty moreover has advantages for the parties concerned because it affords them the possibility of avoiding payment of anti-dumping duty if they agree to increase their prices .
Having regard to the discretion conferred on the institutions in this area by Regulation No 2176/84 and the legitimate concern to adjust anti-dumping measures as closely as possible to the injury established, it seems to me that, where there were links between importers and exporters, the Council was entitled to fix the amount of the anti-dumping duty as the difference between a minimum price and the customs value of the imported products, as determined in accordance with Article 6 of Regulation No 1224/80 .
40 . In its second submission Neotype challenges the secondary criterion laid down by the Council in Article 1(4 ) of the definitive regulation for cases where the customs value cannot be determined in accordance with Article 6 of Regulation No 1224/80 . That submission cannot by itself entail the annulment of the whole provision . Moreover, it is based on the purely hypothetical situation in which the customs authorities, when required to apply that secondary criterion in accordance with Article 2(3 ) of Regulation No 1224/80, do so in an arbitrary manner which leads to unacceptable consequences . Interpreted in that way, the submission is not appropriate to an application for the annulment of a regulation . Should such a situation in fact occur, the injured importers must apply to the competent national courts .
I consider therefore that Neotype' s submissions with regard to the method of calculating the anti-dumping duty must be rejected .
E - The application of the anti-dumping duty to spare parts
41 . Enital considers that the definitive regulation conflicts with Article 2(12 ) of Regulation No 2176/84, in so far as it imposed an anti-dumping duty on spare parts for electric motors, although spare parts cannot be deemed to be like products in relation to electric motors . ( 42 )
The applicant already put forward that submission in the statement of claim which it lodged in connection with an application for the suspension of the operation of the provisional regulation . As the President of the Court held in his order of 16 January 1987, ( 43 ) that submission cannot succeed because the definitive regulation did not impose any anti-dumping duties on parts . Article 1(1 ) of the definitive regulation imposes an anti-dumping duty on imports of electric motors falling within subheading ex 85.01 B I ( b ) of the Common Customs Tariff, corresponding to Nimexe code ex 85.01-33, ex 85.01-34 or ex 85.01-36, originating in six State-trading countries . It is clear from the annex to the Common Customs Tariff ( 44 ) that parts of electric motors do not fall within subheading 85.01 B, since there is a separate subheading for them, namely 85.01 C . That is also apparent from the Nimexe codes : ( 45 ) parts for electric motors do not fall within the Nimexe headings indicated in the definitive regulation but within the separate Headings 85.01-89 and 85.01-90 .
F - The entry into force of the definitive regulation
42 . Article 4 of the definitive regulation provides that the regulation is to enter into force on the day following its publication in the Official Journal of the European Communities . Enital points out that the Council gave no reason for the immediate entry into force of the regulation and is of the opinion that the regulation should be annulled on that ground . Enital also takes the view that the entry into force of the regulation on the day following its publication in the Official Journal caused the anti-dumping duty to be imposed with retroactive effect, which is in conflict with the basic regulation . ( 46 )
43 . In accordance with the first paragraph of Article 191 of the EEC Treaty, regulations enter into force on the date specified in them or, in the absence thereof, on the 20th day following their publication . In its judgment of 13 December 1967 in the Neumann case ( 47 ) - a judgment on which the applicant places reliance in connection with its first submission - the Court held :
"An institution cannot, without having an adverse effect on a legitimate regard for legal certainty, resort without reason to the procedure of an immediate entry into force ."
In the same judgment the Court however went on to hold that a special reason need not necessarily be set out in the preamble to the regulation, in so far as the Court finds in the provisions which it enacts serious reasons for holding that any interval between the publication and the entry into force of the regulation might be prejudicial to the Community .
In my view there are such reasons in the present case . Article 11(5 ) of Regulation No 2176/84 stipulates that provisional duties are to have a maximum period of validity of four months . Under certain conditions that period of validity may be extended for a further period of two months . In the present case Regulation No 3019/86 of 30 September 1986 imposing a provisional anti-dumping duty was extended for a maximum period of two months by Council Regulation No 254/87 of 26 January 1987 . ( 48 ) In the latter regulation it was expressly stated that the extended measure was not to apply "in any way beyond a period of two months beginning on 1 February 1987 ". If the Council wished to avoid a hiatus in the protection of Community interests, it had to ensure that the definitive regulation entered into force at the latest on 1 April 1987, so that it had sound reasons to cause Regulation No 864/87 of 23 March 1987 to enter into force on the day following its publication in the Official Journal .
Moreover the applicant cannot claim that the immediate application of the definitive anti-dumping duty was not foreseeable, since that duty entered into force at the end of the maximum period laid down in Regulation No 2176/84 for the validity of the provisional duty and the Commission constantly kept the applicant informed of the course of the procedure .
44 . Enital' s submission that the entry into force of the definitive regulation on the day following its publication in the Official Journal had the effect of imposing the definitive anti-dumping duty with retroactive effect, is difficult to comprehend . In fact it is only intelligible if the applicant can show that the regulation was published in an issue of the Official Journal which, although dated 27 March 1987, was not distributed until later and that the provisions of the regulation had nevertheless been applied with effect from 28 March 1987 . ( 49 ) The applicant makes no such allegation . For its part the Council obtained confirmation from the Office for Official Publications of the European Communities that the issue dated 27 March 1987 was in fact distributed on that same day .
In those circumstances that submission is also without foundation .
General conclusions
45 . On the basis of the foregoing I propose that the Court should :
( i ) give no decision on the application in Cases C-304/86, C-305/86 and C-320/86;
( ii ) declare inadmissible the application brought by Elprom-Parma in Case C-157/87;
( iii ) dismiss the applications brought in Cases C-157/87, C-160/87, C-185/87 and C-188/87;
( iv ) order the applicants to pay the costs .
(*) Original language : Dutch .
( 1 ) Commission Regulation ( EEC ) No 3019/86 of 30 September 1986 imposing a provisional anti-dumping duty on imports of standardized multi-phase electric motors having an output of more than 0.75 kW but not more than 75 kW, originating in Bulgaria, Czechoslovakia, the German Democratic Republic, Hungary, Poland, Romania and the USSR ( OJ 1986 L 280, p . 68 ). This regulation will be referred to in this Opinion as "the provisional regulation" and the electric motors specified therein will be referred to simply as "electric motors ".
( 2 ) Council Regulation ( EEC ) No 864/87 of 23 March 1987 imposing a definitive anti-dumping duty on imports of standardized multi-phase electric motors having an output of more than 0.75 kW but not more than 75 kW, originating in Bulgaria, Czechoslovakia, the German Democratic Republic, Hungary, Poland and the USSR, and definitively collecting the amounts secured as provisional duties ( OJ 1987 L 83, p . 1 ). This regulation will be referred to in this Opinion as "the definitive regulation ".
( 3 ) Council Regulation ( EEC ) No 2176/84 of 23 July 1984 on protection against dumped or subsidized imports from countries not members of the European Economic Community ( OJ 1984 L 201, p . 1 ). This regulation has since been superseded by Council Regulation ( EEC ) No 2423/88 of 11 July 1988 ( OJ 1988 L 209, p . 1 ).
( 4 ) See point III.1.(a ) of the Report for the Hearing in Joined Cases C-305/86 and C-160/87 in which the opinions of the Commission, Gimelec and Neotype on this point are reproduced .
( 5 ) Judgment in Case 294/86 Technointorg v Commission and Council [1988] ECR 6077 .
( 6 ) Judgment in Case 56/85 Brother Industries Ltd v Council [1988] ECR 5655 .
( 7 ) Judgment in Joined Cases 239/82 and 275/82 Allied Corporation [1984] ECR 1005 .
( 8 ) See point III.1 of the Report for the Hearing in Cases C-304/86 and C-185/87, point IV.2.(a ) of the Report for the Hearing in Cases C-305/86 and C-160/87 and point IV.3.(a ) of the Report for the Hearing in Cases C-320/86 and C-188/87 .
( 9 ) Order of 8 July 1987 in Case 279/86 Sermes [1987] ECR 3109 .
( 10 ) Judgment in Joined Cases 277 and 300/85 Canon Inc and Others v Council [1988] ECR 5731 . Paragraph 8 of the judgment reads :
"Importers associated with exporters may challenge a regulation imposing an anti-dumping duty, particularly where, as in the present cases, the export price has been calculated on the basis of their selling prices on the Community market" ( emphasis added ).
( 11 ) Council Regulation ( EEC ) No 1224/80 of 28 May 1980 on the valuation of goods for customs purposes ( OJ 1980 L 134, p . 1 ).
( 12 ) For a further discussion of the manner in which anti-dumping duty is to be calculated in accordance with the definitive regulation, see below, paragraphs 37 to 40 .
( 13 ) See the judgments of 7 May 1987 in Case 240/84 NTN Toyo v Council [1987] ECR 1809, Case 255/84 Nachi Fujikoshi v Council [1987] ECR 1861, Case 256/84 Koyo Seiko v Council [1987] ECR 1899 and in Case 258/84 Nippon Seiko v Council [1987] ECR 1923 .
( 14 ) See paragraphs 15 and 16 of the preamble to the definitive regulation .
( 15 ) See paragraph 39 of the preamble to the definitive regulation .
( 16 ) See paragraph III.2.(d)(i ) of the Report for the Hearing in Cases C-304/86 and C-185/87 .
( 17 ) See paragraph III.2.(b)(i ) of the Report for the Hearing in Cases C-305/86 and C-160/87 .
( 18 ) See paragraph III.2.(b)(aa)(i ) and ( ii ) of the Report for the Hearing in Cases C-320/86 and C-188/87 .
( 19 ) See paragraph III.2.(b ) of the Report for the Hearing in Case C-157/87 .
( 20 ) Commission Regulation ( EEC ) No 724/82 of 30 March 1982 imposing a provisional anti-dumping duty on imports of standardized multi-phase electric motors having an output of more than 0.75 kW but not more than 75 kW, originating in Bulgaria, Czechoslovakia, the German Democratic Republic, Poland, Romania and the Soviet Union and closing the procedure with regard to imports of those products originating in Hungary ( OJ 1982 L 85, p . 9 ).
( 21 ) See inter alia the abovementioned judgment in the Nachi Fujikoshi case, paragraph 39 .
( 22 ) See P . Vandoren : "Mise en oeuvre de la politique antidumping de la CEE contre les importations en provenance des pays à commerce d' État", Revue du marché commun, No 316, April 1988, p . 198 et seq .
( 23 ) Council Regulation ( EEC ) No 1765/82 of 30 June 1982 laying down Community rules for exports from State-trading countries ( OJ 1982 L 195, p . 1 ).
( 24 ) Council Regulation ( EEC ) No 1766/82 of 30 June 1982 laying down Community rules on exports from the People' s Republic of China ( OJ 1982 L 195, p . 21 ).
( 25 ) Yugoslavia acceded to GATT in 1966 . In contrast to the protocol on the accession of Poland, Romania and Hungary, the Yugoslav protocol contains no derogations from GATT principles .
( 26 ) Note 2 to Article VI of the GATT provides as follows :
"It is recognized that, in the case of imports from a country which has a complete or substantially complete monopoly of its trade and where all domestic prices are fixed by the State, special difficulties may exist in determining price comparability for the purposes of paragraph 1, and in such cases importing contracting parties may find it necessary to take into account the possibility that a strict comparison with domestic prices in such a country may not always be appropriate ."
( 27 ) See in particular Annex 25 where it is stated that the Yugoslav economic system differs on essential points ( no central State planning, independence of undertakings inter alia with regard to price formation, no monopoly with regard to external trade ) from East European countries with a centrally planned economic system .
( 28 ) See judgment in Case 191/82 Fediol v Commission [1983] ECR 2913, paragraph 30, and my Opinion in Case 70/87 Fediol v Commission [1989] ECR 1781, paragraph 19 .
( 29 ) See in this connection recitals 2 and 8 of Regulation No 864/87 .
( 30 ) Article 2(13)(a ) of Regulation ( EEC ) No 2176/84 provides :
"' Dumping margin' means the amount by which the normal value exceeds the export price ."
( 31 ) See the 1989 annual report of the IMF on "exchange arrangements and exchange restrictions", in which the exchange arrangement with regard to Yugoslavia ( situation as at 31 December 1988 ) is described as follows :
"The currency of Yugoslavia is the Yugoslav dinar . The authorities do not maintain the exchange rate of the dinar within announced margins . All transactions, other than those effected under the procedures set forth for certain countries with which Yugoslavia has bilateral payments agreements ... take place at an exchange rate adjusted from time to time by the authorities ."
( 32 ) See paragraph III.2.(d)(i ) of the Report for the Hearing in Joined Cases C-304/86 and C-185/87 .
( 33 ) See paragraph III.2.(b)(aa)(iii ) of the Report for the Hearing in Joined Cases C-320/86 and C-188/87 .
( 34 ) See paragraph III.2.(c ) of the Report for the Hearing in Case C-157/87 .
( 35 ) In Enital' s observations it is stated that the components used in Yugoslavia are of poorer quality . I assume that this is an error and that in fact higher quality is meant . If not, that argument would not fit in with the intention of those observations, which is to seek to reduce the dumping margin determined by the Council .
( 36 ) See paragraph III.2.(e ) of the Report for the Hearing in Joined Cases C-304/86 and C-185/87, paragraph III.2.(b)(ii ) of the Report for the Hearing in Joined Cases C-305/86 and C-160/87, paragraph III.2.(b)(aa)(iv ) of the Report for the Hearing in Joined Cases C-320/86 and C-188/87 and paragraph III.2.(d ) of the Report for the Hearing in Case C-157/87 .
( 37 ) See Commission Regulation ( EEC ) No 724/82 of 30 March 1982 ( OJ 1982 L 85, p . 9 ), Council Regulation ( EEC ) No 2075/82 of 28 July 1982 ( OJ 1982 L 220, p . 36 ) and Commission Decision 84/189/EEC of 2 April 1984 ( OJ 1984 L 95, p . 28 ).
( 38 ) See recital 25 of the provisional regulation .
( 39 ) See recitals 23 and 24 of the definitive regulation .
( 40 ) See recital 26 of the definitive regulation .
( 41 ) See paragraphs 29 and 31 of the definitive regulation .
( 42 ) See paragraph III.2.(d)(ii ) of the Report for the Hearing in Joined Cases C-304/86 and C-185/87 .
( 43 ) Order in Case 304/86 R Enital v Council and Commission [1987] ECR 267 .
( 44 ) Annex in the version attached to Council Regulation ( EEC ) No 3618/86 of 24 November 1986 ( OJ 1986 L 345, p . 1 ).
( 45 ) Nimexe annex in the version established by Commission Regulation ( EEC ) No 3840/86 of 16 December 1986 ( OJ 1986 L 368, p . 1 ).
( 46 ) See paragraph III.2.(b ) and ( c ) of the Report for the Hearing in Joined Cases C-304/86 and C-185/87 .
( 47 ) Judgment in Case 17/67 Neumann v Hauptzollamt Hof [1967] ECR 441, at p . 456 .
( 48 ) Council Regulation ( EEC ) No 254/87 of 26 January 1987 extending the provisional anti-dumping duty on imports of standardized multi-phase electric motors having an output of more than 0.75 kW but not more than 75 kW, originating in Bulgaria, Czechoslovakia, the German Democratic Republic, Hungary, Poland, Romania and the Soviet Union ( OJ 1987 L 26, p . 1 ).
( 49 ) See judgment in Case 88/87 Suiker Export [1977] ECR 709, paragraphs 13 to 19 .