OPINION OF MR ADVOCATE GENERAL LENZ

delivered on 31 January 1985 ( *1 )

Mr President,

Members of the Court,

I should like to present my Opinion to the Court without delay.

It is clear from the proceedings that the Italian court is confronted with considerable difficulties as regards the decision to be given in this case.

I am not at all surprised that a mistake was made in the application of the law, namely that the national court was under the impression that it was required to apply one provision rather than another.

Now that the whole problem has been examined with the Commission's assistance, the case is no longer seems so complex.

I share the plaintiff's view that the solution to the question lies in Recommendation No 874/83, since the recitals in the preamble thereto contain all the provisions needed to resolve the problem.

It is clear from those recitals that:

Commission Recommendation No 1006/78/ECSC of 18 May 1978 imposed a definitive antidumping duty on zinc-coated (other than electrolytically) steel sheets and plates (galvanized) falling under heading No 73.13 B IV (c) 2 of the Common Customs Tariff and originating in the German Democratic Republic.

That recommendation was amended by Recommendation No 3140/78/ECSC of 29 December 1978 and the amount of the antidumping duty was fixed anew also in respect of products falling under the Common Customs Tariff heading referred to earlier. Recommendation No 3140/78 entered into force on 15 January 1979 and remained applicable for over four years and three months, that is to say until 16 April 1983. Only on that date was it replaced by Recommendation No 874/83/ECSC.

I sympathize wholeheartedly with the Italian Government which perceives the recommendation in question as an unusual measure. In a market as turbulent as the steel market and in such uncertain times as those, the long period of validity of a single antidumping duty is a matter which calls for an explanation.

I fear, however, that such explanation has no bearing on this case. The question at issue here is not whether the economic policy measure concerned was correct or otherwise. That point can probably be debated at great length and the Commission went so far as to point out that there was something to be said even for foreseeable, fixed antidumping duties.

The only point which is at issue here is whether or not the recommendation was valid. In my view, none of the arguments contesting the validity of that measure for legal purposes is decisive.

Recommendations Nos 1006/78 and 874/83 are concerned with the imposition of antidumping duties on iron and steel products originating in the German Democratic Republic. Recommendation No 3140/78 contains no such reference to the German Democratic Republic but refers inter alia to Recommendation No 1006/78 which applies only to the German Democratic Republic. It was made clear during the oral procedure that there is not the slightest doubt that the recommendation applicable at the material time to the imports in question was Recommendation No 3140/78.

Recommendation No 1006/78, on which the Customs Revenue Office, Luino, based its calculation of the amount payable by the plaintiff, had been repealed at the time by Commission Recommendation No 3140/78 and was no longer applicable.

That, in my view, is the legal position in the case now before the Court. The Court is aware of which measures were not applicable. They include the Communication on prices of 29 December 1981 since it relates to Recommendation No 3018/79 which has no bearing on this particular case.

The Court is now confronted with the question — which was raised by the Italian Government — of what approach should be taken. I share the Commission's view. In a spirit of cooperation with the national court, the Court of Justice cannot hide behind the wrong question since it has seen for itself how difficult it is for experts to gain a clear understanding of the problem and it must, if it wishes to be helpful, give an answer to the question submitted in this case.

I therefore propose that the Court should rule as follows:

(1) The validity of the Communication from the Commission amending the basic prices for certain iron and steel products (Official Journal 1981, L 372, p. 1) has no bearing on the decision to be given in this case.

(2) The effective prices fixed by Recommendation No 1006/78/ECSC, as amended by Recommendation No 3140/78/ECSC, for goods falling under subheading No 73.13 B IV (c) 2 of the Common Customs Tariff (Official Journal 1978, L 372, pp. 1 and 17) were valid at the material time.

( *1 ) Translated from the German.