Judgment of the Court (Fifth Chamber) of 11 July 1990. - Stanko France v Commission and Council of the European Communities. - Common commercial policy - Anti-dumping duties on imports of electric motors. - Joined cases C-320/86 and C-188/87.



European Court reports 1990 Page I-03013

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 - Use of a constructed value - Substitute method presupposing the existence of specific circumstances prevailing on the domestic market of the country chosen as reference country

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

4 . Common commercial policy - Protection against dumping - Dumping margin - Comparison between the normal value and the export price - Adjustments - Factors to be taken into consideration - Exhaustive enumeration - Irrelevant factors

( Council Regulation No 2176/84, Art . 2(9 ) and ( 10 ) )

5 . Common commercial policy - Protection against dumping - Dumping margin - Comparison between the normal value and the export price - Adjustments - Burden of proof

( Council Regulation No 2176/84, Art . 2(10 ) )

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 . 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 an 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 . When imports alleged to be dumped are made from a country not having a market economy and it is necessary, in accordance with Article 2(5 ) of Regulation No 2176/84, to choose a reference country in order to determine the normal value of the products in question, the price actually prevailing on the market of the country chosen must be taken in the first instance, since the constructed value is only a substitute to which recourse must be had when it would be unreasonable in the circumstances to use the market price ( see judgment in Joined Cases 294/86 and 77/87 Technointorg v Commission and Council [1988] ECR 6077 ).

Those circumstances do not arise from an absence of imports where the market is sufficiently competitive to guarantee that the prices prevailing there are representative, or from the mere fact that the prices are similar since that may be attributable to various factors other than State control of prices .

4 . In order to enable a valid comparison to be made between the export price and the normal value, thus enabling the dumping margin to be determined, Article 2(9 ) and ( 10 ) of Regulation No 2176/84 provides for allowances for differences affecting price comparability . It follows from subparagraphs ( a ) to ( d ) of that provision that those differences relate respectively to the physical characteristics of the product, quantities, conditions and terms of sale, import charges and indirect taxes .

Since allowances may be made only in respect of the matters mentioned ( see the Technointorg v Commission and Council judgment ), the Council cannot be criticized for not taking into consideration differences resulting from a failure to rationalize production on the market of the country chosen as the reference country in the presence of imports from a non-market-economy country, the cost of labour in that country, the reputation of the imported products and the risk taken by the purchaser in regard to after-sales service .

5 . A party claiming allowances, under Article 2(10 ) of Regulation No 2176/84, to make the normal value and the export price comparable for the purpose of determining the dumping margin must prove 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 proceeding involving products from different countries, it is in principle the combined effects of the imports in question which must be assessed for the purposes of a finding of injury being caused to the Community industry ( see the Technointorg v Commission and Council judgment mentioned above ).

( As regards paragraphs 1, 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 Joined Cases C-320/86,

Stanko France, a company incorporated under French law, whose registered office is in Longjumeau ( France ), represented by Geneviève Boespflug, of the Paris 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 Marie-José Jonczy, 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 at 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-188/87,

Stanko France, a company incorporated under French law, whose registered office is in Longjumeau ( France ), represented by Geneviève Boespflug, of the Paris 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 of 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,

and by

Commission of the European Communities, represented by Marie-José Jonczy, 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 .