13.

It is clear from those arguments of the parties that none of them disputes that the information ‘used by the Commission in the investigation’ is ‘relevant to the defence of [the complainant's] interests’. ( 18 ) Must one therefore assume, like the institutions, that the right to be heard laid down in Article 7 (4) (a) covers only information provided by the reference undertakings? That interpretation, which is far too restrictive, cannot be accepted. In the first place, it is contrary to the very purpose of Article 7 (4) (a). The provisions of Article 7, which deal with the initiation and subsequent conduct of the investigation,empower the Commission to carry out investigations directly or through Member States into undertakings in nonmember countries, provided that they give their consent. ( 19 ) That information may be used by the Commission during the investigation and may determine its decision with regard to the antidumping duties. Therefore, it is difficult to see why it should not be made available to, and discussed by, the complainant as well as the person on whom levies may be imposed, who would be deprived in such a case of the opportunity to protect their interests ( 18 ) properly. Secondly, that interpretation is hardly compatible with the very wording of Article 7. It may in fact be observed that it expressly restricts the number of parties concerned only in the later stages of the investigation. Thus, only the parties ‘affected by the result of the proceeding ... ’ may be heard and only the views of parties which are also ‘directly concerned’ may be presented. ( 20 ) Moreover, I should point out that the views heard in this case included those of an officer of one of the Hong Kong undertakings besides those of representatives of Timex and the main importer of the product in question. Must one therefore assume, like Timex, that the Commission failed in its duty under Article 7 (4) (a) to provide information and consequently initiated the lawfulness of the contested regulation? In this regard it must be pointed out that it is an undisputed fact that no information on either watch cases and dials or the prices of the various wristwatch components assembled in Hong Kong was supplied to the complainant. As far as watch cases and dials are concerned, it need only be recalled that the institutions have admitted that the like product was chosen on the basis of the appearance of the different types of watches considered and that none of the parties, and not only Timex, had the opportunity to put forward their views on the choice made. As regards the prices of components used in the manufacture of watches in Hong Kong, the argument based on confidentiality rests on a wrong interpretation of the scheme of Articles 7 and 8 of Regulation No 3017/79. The confidential treatment of information gathered by the Commission imposes a duty upon it to do its utmost [‘obligation de moyen’] to reconcile the requirements associated with the right to information with those of business confidentiality. This clearly follows from the very structure of Article 8 which, whilst imposing a duty on the institutions and their servants in subparagraph 2 (a) to avoid injurious disclosures [Obligation de réserve'], makes it clear in subparagraph 2 (b) and paragraphs 3 and 4, that during the investigation the Commission must try to keep the confidential part to what is strictly necessary. Consequently, the rule of confidentiality covers only information whose ‘disclosure is likely to have a significantly adverse effect upon the supplier or the source of such information’. ( 21 ) As regards the confidential treatment itself, it must be requested, justified and accompanied by ‘a non-confidential summary of the information, or a statement of the reasons why the information is not susceptible of such summary’. ( 22 ) Moreover, if the Commission considers that the request for confidentiality is unwarranted, it may decide that ‘the information in question may be disregarded’. ( 23 ) Nobody denies that the voluntary cooperation of undertakings in nonmember countries is indispensable for the conduct of an investigation since their consent is needed in order to obtain the information sought. Nevertheless, in securing such cooperation, the rules governing the right to be heard accorded to all the parties must be respected, otherwise the regulation would not have required them to request confidential treatment beforehand. Incidentally, Council Regulation No 2176/84, which replaced Regulation No 3017/79 as from 1 August 1984, rectified the wording of Article 8 (2) (a) on this point by mentioning that requirement expressis verbis. ( 24 ) In the present case, therefore, the Commission was under the obligation to allow Timex to inspect the information gathered during the investigation, particularly from the Hong Kong undertakings, since those undertakings had not legitimately requested confidential treatment. The Commission could not simply decide ex officio that any particular information was confidential. That conclusion is made even more inescapable by the fact that it was a question of determining the normal value not on the basis of the market price in a nonmember country but on the basis of the constructed value in such a case, the necessity to reconcile transparency with business confidentiality bears even more heavily on the Commission, short of rendering the provisions of Articles 7 and 8 meaningless. Consequently, Timex was not afforded the opportunity to protect its interests properly, since the Commission did not give it the means to put forward its views effectively on the similarity of the product and on the constructed value arrived at, which, together with the choice of the analogue country, formed the basic elements in the determination of the normal value in this case. Strict observance of that procedural guarantee is, however, the counterpart of the discretion accorded to the institutions in the application of Regulation No 3017/79. Failure to observe it therefore constitutes ‘an infringement of an essential procedural requirement’ within the meaning of the first paragraph of Article 173 and renders void Article 1 of the regulation which the Council adopted on the basis of the measures taken by the Commission and set forth in Commission Regulation No 84/82.