Judgment of the Court (Fifth Chamber) of 11 July 1990. - Electroimpex and others v Council of the European Communities. - Common commercial policy - Anti-dumping duties on imports of electric motors. - Case C-157/87.



European Court reports 1990 Page I-03021

Pub.RJ Page Pub somm



Summary

Parties

Operative part



Keywords

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1 . Action for annulment - Natural or legal persons - Acts of direct and individual concern to them - Regulation imposing anti-dumping duties - Exclusive importer not linked to the exporter - Inadmissibility

( EEC Treaty, Art . 173, second paragraph )

2 . Action for annulment - Natural or legal persons - Acts of direct and individual concern to them - Regulation imposing anti-dumping duties - Importers who are associated with the exporter and whose resale prices have been used to establish the dumping margin or to calculate the anti-dumping duty

( EEC Treaty, Art . 173, second paragraph )

3 . Common commercial policy - Protection against dumping - Dumping - Concept

( Council Regulation No 2176/84, Art . 2(2 ) )

4 . Common commercial policy - Protection against dumping - Dumping margin - Determination of the normal value - Imports from countries not having a market economy

( Council Regulation No 2176/84, Art . 2(5 ) )

5 . Common commercial policy - Protection against dumping - Dumping margin - Determination of the normal value - Imports from countries not having a market economy - Principal factor to be taken into account - Price actually charged for a like product in a market-economy non-member country - Definition of like product - Differences in physical characteristics not sufficient to negate similarity - Account to be taken thereof for adjustment purposes - Conditions

( Council Regulation No 2176/84, Arts 2(5 ), 9, 10 and 12 )

6 . Common commercial policy - Protection against dumping - Injury - Factors to be taken into consideration - Several - Discretion of the institutions - Decline in the market share of dumped imports - Not decisive

( Council Regulation No 2176/84, Art . 4(2 ) )

7 . Common commercial policy - Protection against dumping - Injury - Products originating in different countries - Assessment of the combined effects of imports

( Council Regulation No 2176/84, Art . 4(2 ) )

Summary

1 . Regulations imposing an anti-dumping duty are not of direct and individual concern to importers who are not associated with the exporter, whether or not they be exclusive importers, where their resale prices have not been taken into account in calculating the dumping margin .

Such a regulation concerns that importer not on account of certain characteristics peculiar to him or on account of a factual situation which distinguishes him from any other person, but solely on account of his objective standing as an importer of the products in question, in the same way as any other trader who is, actually or potentially, in an identical situation ( see judgment in Case 231/82 Spijker v Commission [1983] ECR 2559, and orders in Case 279/86 Sermes v Commission [1987] ECR 3109 and in Case 301/86 Frimodt Pedersen v Commission [1987] ECR 3123 ).

2 . Regulations imposing an anti-dumping duty, although by their nature and scope of a legislative nature, are of direct and individual concern inter alia to those importers who are associated with the exporter and whose resale prices have been used to establish the dumping margin or for calculating the anti-dumping duty itself .

3 . The definition of dumping appearing in Article 2(2 ) of Regulation No 2176/84 is based on the notion of price discrimination practised on two different markets and not on the notion of an export sale made at a price below cost . It corresponds to the definition accepted at international level, as laid down, in particular, in Article VI of the GATT and in Article 2 of the Agreement on implementation of Article VI of the GATT .

4 . By providing that, in the case of imports from countries not having a market economy, the normal value is to be determined on the basis essentially of the price at which the like product is actually sold in a market-economy country, Article 2(5 ) of Regulation No 2176/84 seeks to prevent account being taken of prices and costs in non -market-economy countries which are not the normal result of market forces .

5 . Article 2(5 ) of Regulation No 2176/84 provides that, with regard to imports from countries not having a market economy, the normal value is to be determined in an appropriate and not unreasonable manner on the basis essentially of the price at which a like product is actually sold in a market-economy country . Under Article 2(12 ) of that regulation "like product" means a product which is identical, that is to say, 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 .

Differences in those characteristics which are not sufficient to remove similarity, for the purposes of the aforementioned provision, between the product chosen for the purpose of determining the normal value and those products alleged to be dumped may fall to be considered for the purposes of an adjustment of the normal value under Article 2(9 ) and ( 10 ) of the regulation, provided however that the party claiming such adjustment proves that his claim is justified ( see judgments of 7 May 1987 in Case 255/84 Nachi Fujikoshi v Council [1987] ECR 1861, in Case 258/84 Nippon Seiko v Council [1987] ECR 1923 and in Case 260/84 Minebea v Council [1987] ECR 1975 ).

6 . In accordance with Article 4(2 ) of Regulation No 2176/84, the examination of injury must involve a whole series of factors no one or several of which can give decisive guidance .

For that reason a decline in the market share of dumped imports does not preclude a finding that significant injury is being caused by them, where that finding is based on various factors to be taken into consideration under the abovementioned provision .

7 . In an anti-dumping procedure involving products from different countries, it is in principle the combined effects of the imports in question which must be taken into account for the purpose of a finding of injury to the Community industry ( see judgment in Joined Cases 294/86 and 77/87 Technointorg v Commission and Council [1988] ECR 6077 ).

( As regards paragraphs 2 and 6 above, the grounds of this judgment are essentially identical to those of the judgment given on the same date, 11 July 1990, in Joined Cases C-305/86 and C-160/87 Neotype Techmashexport v Commission and Council [1990] ECR I-2945 ).

Parties

In Case C-157/87,

Electroimpex, a company incorporated according to the laws of Bulgaria, whose registered office is in Sofia ( Bulgaria ),

Sofbim, a company incorporated according to French law, whose registered office is in Argenteuil ( France ),

Elprom-Verkaufs GmbH, a company incorporated according to German law, whose registered office is in Borken ( Federal Republic of Germany ),

Elprom-Parma, a company incorporated according to Italian law, whose registered office is in Parma ( Italy ),

all represented by Daniel Rouxel, of the Versailles Bar, with an address for service in Luxembourg in the office of Mark Mackel, of Fiduciaire Révision Montbrun, 11 boulevard Prince-Henri,

applicants,

v

Council of the European Communities, represented by H.-J . Lambers, Director in the Legal Department, and E . Stein, Legal Adviser, acting as Agents, assisted by Georges Vandersanden, of the Brussels Bar, with an address for service in Luxembourg at the office of Joerg Kaeser, Director of the Legal Affairs Directorate of the European Investment Bank, 100 boulevard Konrad-Adenauer, Kirchberg,

defendant,

supported by

Groupement des industries de matériels d' équipement électrique et de l' électronique industrielle associée, whose registered office is in Paris, represented by Ivo Van Bael and Jean-François Bellis, of the Brussels Bar, with an address for service in Luxembourg at the Chambers of Freddy Brausch, 8 rue Zithe,

intervener,

APPLICATION for the annulment of 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 Soviet Union, and definitively collecting the amounts secured as provisional duties ( Official Journal 1987 L 83, p . 1 ),

THE COURT ( Fifth Chamber )

composed of : Sir Gordon Slynn, President of Chamber, M . Zuleeg, R . Joliet, J . C . Moitinho de Almeida and G . C . Rodríguez Iglesias, Judges,

( The grounds of the judgment are not reproduced .)

hereby :

Operative part

( 1 ) Dismisses the application as inadmissible in so far as it was brought by Elprom-Parma;

( 2 ) Dismisses the remainder of the application as unfounded;

( 3 ) Orders the applicants to pay the costs jointly, including those of the intervener .