Judgment of the Court (Fifth Chamber) of 11 July 1990. - Enital SpA v Commission and Council of the European Communities. - Common commercial policy - Anti-dumping duties on imports of electric motors. - Joined cases C-304/86 and C-185/87.



European Court reports 1990 Page I-02939

Pub.RJ Page Pub somm



Summary

Parties

Operative part



Keywords

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1 . Action for annulment - Action brought against a regulation imposing a provisional anti-dumping duty - Subsequent adoption of a regulation imposing a definitive anti-dumping duty at a lower rate - Consequences regarding the interest in bringing proceedings

( EEC Treaty, Art . 173 )

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 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 )

4 . 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 ) )

5 . Common commercial policy - Protection against dumping - Regulation imposing a definitive anti-dumping duty - Immediate entry into force - Infringement of the principle of legal certainty - None

( EEC Treaty, Art . 191; Council Regulations Nos 2176/84 and 864/87 )

Summary

1 . When the amounts secured as provisional anti-dumping duties are collected, in accordance with the regulation imposing a definitive anti-dumping duty, at the rate of duty definitively imposed, no reliance may be placed by an importer required to pay those amounts on any legal effect arising out of the regulation imposing the provisional duty such as to found an interest in contesting that regulation .

It may, however, be possible to claim on interest in seeking a declaration that the provisional regulation is void, with a view to a damages claim, in respect solely of the amounts secured which are discharged because the rate of the definitive duty is lower than the rate of provisional duty, provided that evidence is adduced of damage in connection with the amounts secured .

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 whose resale prices have been used to establish the dumping margin or for calculating the anti-dumping duty itself .

3 . 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" is to be understood as meaning an identical product, that is to say, a product similar in all respects to the product under consideration or, in the absence of such a product, another product having characteristics closely resembling those of the product in question .

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 the 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 Company Ltd v Council [1987] ECR 1975 ).

4 . 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 .

5 . The Council cannot be criticized for frustrating the legitimate concern of legal certainty for the traders concerned by fixing, in accordance with the first paragraph of Article 191 of the Treaty, the entry into force of a regulation imposing a definitive anti-dumping duty on the day following its publication in the Official Journal, where those traders could not, in view of the imposition by the Commission of a provisional duty and its extension by the Council pending the entry into force of a regulation imposing definitive measures, have been unaware of the imminent imposition of such a duty .

( As regards paragraphs 1, 2 and 4 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-2949 ).

Parties

In Joined Cases C-304/86,

Enital SpA, whose registered office is in Milan ( Italy ), represented by Dino Ranieri, of the Como Bar, with an address for service in Luxembourg at the Chambers of Ernest Arendt, 4 avenue Marie-Thérèse,

applicant,

v

Commission of the European Communities, represented by E . de March, Legal Adviser, acting as Agent, with an address for service in Luxembourg at the office of Georgios Kremlis, a member of its Legal Department, Wagner Centre, 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 in the Chambers of Freddy Brausch, 8 rue Zithe,

intervener,

APPLICATION for the annulment of 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 ( Official Journal 1986 L 280, p . 68 ),

and C-185/87,

Enital SpA, whose registered office is in Milan ( Italy ), represented by Dino Ranieri, of the Como Bar, with an address for service in Luxembourg at the Chambers of Ernest Arendt, 4 avenue Marie-Thérèse,

applicant,

v

Council of the European Communities, represented by H.-J . Lambers, Director in its Legal Department, and E . Stein, Legal Adviser, acting as Agents, 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,

and by

Commission of the European Communities, represented by E . de March, Legal Adviser, acting as Agent, with an address for service in Luxembourg at the office of Georgios Kremlis, a member of its Legal Department, Wagner Centre, Kirchberg,

interveners,

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 applications;

( 2 ) Orders the applicant to pay the costs, including those of the interveners .