Opinion of Mr Advocate General Sir Gordon Slynn delivered on 8 March 1988. - Silver Seiko Limited and others v Council of the European Communities. - Imposition of an anti-dumping duty on electronic typewriters. - Joined cases 273/85 and 107/86.



European Court reports 1988 Page 05927



Opinion of the Advocate-General

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My Lords,

The legal framework and the procedure

For the legal framework and an outline of the procedure in this case I refer to my Opinion in Joined Cases 260/85 and 106/86 Tokyo Electric Company v Council ( TEC ).

Silver Seiko Ltd (" Silver Seiko ") is a Japanese company which manufactures typewriters . It started to manufacture and market electronic typewriters in 1981 . Silver Reed ( UK ) Ltd (" Silver Reed UK ") and Silver Reed International GmbH (" Silver Reed Germany ") are subsidiary companies of Silver Seiko which are engaged in the sale and distribution in the EEC of electronic typewriters manufactured by Silver Seiko in Japan . In the Japanese domestic market Silver Seiko sells its electronic typewriters through a sales subsidiary, Silver Business Machines .

By the Provisional Duty Regulation a provisional anti-dumping duty of 26.6% was imposed on electronic typewriters made in Japan by Silver Seiko . By the Definitive Duty Regulation a definitive duty of 21% was imposed and the provisional duty collected at the same rate .

By an application lodged on 6 September 1985, Silver Seiko, Silver Reed UK and Silver Reed Germany ( hereinafter referred to collectively as "Silver Seiko" unless the context otherwise requires ) brought an action against the Council of the European Communities ( Case 273/85 ) asking the Court :

( 1 ) to declare that the Definitive Duty Regulation is void in its entirety or void at least in so far as it applies to Silver Seiko;

( 2 ) alternatively, to declare Articles 1 and 2 of the said regulation void; or further alternatively, to declare Article 1 of the said regulation void in so far as it purports to impose a definitive anti-dumping duty upon electronic typewriters exported and sold in the Community by Silver Seiko; and, in the further alternative, to declare Article 2 of the said regulation void in so far as it purports to order the definitive collection of amounts secured by way of provisional duty by the Provisional Duty Regulation;

( 3 ) in any event, to order the Council to bear all Silver Seiko' s costs;

( 4 ) order such other and further relief as may be lawful and equitable in the circumstances .

By another application lodged the same day ( Case 273/85 R ), Silver Seiko sought an order in substance suspending the application of the Definitive Duty Regulation . That application was dismissed by an order of the President of the Court of 18 October 1985, which also reserved the costs of the interim proceedings ( (( 1985 )) ECR 3475 ).

Subsequently, in January 1986, the rate of definitive duty - and the rate for collecting the provisional duty - applicable to Silver Seiko was altered from 21 to 23% by Regulation No 113/86 . By an application lodged on 5 May 1986 Silver Seiko sought the annulment of Regulation No 113/86 in a fresh case, Case 107/86, with arguments identical in substance to those in Case 273/85 . The two cases were joined by an order of the Court of 25 February 1987 .

The Commission and Cetma have intervened in support of the Council .

In support of its claims Silver Seiko advances a number of arguments which it presents under the following headings : ( 1 ) normal value, ( 2 ) export price, ( 3 ) comparison between normal value and export price, ( 4 ) injury to Community industry, ( 5 ) imposition of definitive anti-dumping duties, ( 6 ) definitive collection of the provisional duties, and ( 7 ) procedural irregularities .

1 . Normal Value

Under the heading of normal value Silver Seiko argues as follows . ( 1 ) The determination of Japanese domestic market prices to establish normal value was unlawful and incorrect, because Silver Seiko' s domestic market prices were not in the "ordinary course of trade" as defined by the Basic Regulation and the domestic market prices used were not "comparable prices" as required by the Basic Regulation . ( 2 ) The calculations of constructed value were made on an incorrect basis . ( 3 ) The computations of profit for purposes of constructed values were illegal, discriminatory and incorrect, because the method used for calculating profit was contrary to the Basic Regulation, because Silver Seiko was discriminated against vis-a-vis other Japanese companies and because the profit calculations for Silver Seiko were numerically incorrect .

The Community authorities were in my view entitled to adopt the rule which they did ( in Recital 4 to the Definitive Duty Regulation ) to the effect that normal value should be based on actual domestic price where sales on the domestic market exceed 5% by volume of exports to the Community . Applying that rule, they based the normal value of certain of Silver Seiko' s models on their domestic price . The domestic price used was not that of Silver Seiko Limited but that of its sales subsidiary Silver Business Machines, because that was the first arm' s length sale . In my view, for the reasons additionally set out in my Opinion in TEC and in my Opinion in Joined Cases 277 and 300/85 Canon v Council, that approach was in accordance with Article 2 ( 3 ) ( a ) and 2 ( 7 ) of the Basic Regulation .

Silver Seiko' s argument that the sales of its sales subsidiary in Japan and of its subsidiaries in the EEC were at different levels is unsubstantiated . They were in each case the first arm' s length sale, and the evidence before the Court does not establish that the categories of purchasers in the two markets were substantially different . Silver Seiko seeks to rely on allegations that on average fewer units were sold to the purchasers in Japan than to the purchasers in the EEC . However, even if proved, such allegations do not go to comparability within the meaning of Article 2 ( 3 ) ( a ) of the Basic Regulation but to differences in quantities for which adjustments may be granted under Article 2 ( 9 ) and ( 10 ) ( b ). Such adjustments were in fact claimed by Silver Seiko, but it failed to bring itself within the conditions laid down in particular in Article 2 ( 10 ) ( b ) ( i ) and the Community authorities were entitled, in my view, to refuse the claim .

As regards those of its models for which normal value was constructed, Silver Seiko challenges the approach described in Recital 15 of the Definitive Duty Regulation according to which constructed normal value "is designed to lead to a normal value as if sales on the domestic market had taken place ". For the reasons given in my Opinion in TEC, I consider that a valid approach . Silver Seiko' s argument that the Community authorities' approach represents a departure from a practice said to have been laid down in the "Turkish cotton yarn" regulations falls to be rejected for the reasons I gave in my Opinions in Canon and TEC . Silver Seiko' s arguments to the effect that the Community authorities were wrong in setting the constructed normal value at the level of the domestic sales subsidiary and in including the latter' s SGA expenses in the constructed normal value, also fall to be rejected for the reasons given in my Opinion in TEC .

The Community authorities were required by Article 2 ( 3 ) ( b ) ( ii ) of the Basic Regulation to include a reasonable margin of profit in the constructed normal value of the models concerned . Contrary to the arguments advanced by Silver Seiko, it was lawful for the Community authorities to use the selling prices of Silver Business Machines rather than Silver Seiko and to use the combined profit margins of those two companies rather than of Silver Seiko alone for that purpose . The reasons for those conclusions are set out in full in my Opinions in Canon and TEC . As I have already indicated, I do not consider that Silver Seiko has established that sales by Silver Business Machines were at a level different from sales of Silver Seiko' s subsidiaries in the EEC . In my view therefore Silver Seiko has not shown that the method of calculation was improper as alleged . Moreover, Silver Seiko' s argument that the use of that method infringes the principle of legal certainty falls to be rejected for the reasons that I gave in my Opinion in TEC .

Three of the exporters concerned ( Silver Seiko, Canon and Brother ) were found to have sufficient domestic sales of certain models for normal value to be based on domestic price and in those cases the Community authorities found profit margins of, respectively, 61.27% on cost for Silver Seiko, 47.92% on cost for Canon and 71.18% on cost for Brother . The Community authorities then used those respective profit margins in order to construct the normal value of those exporters' remaining models . In my view the use of that profit margin was reasonable - as required by the Basic Regulation and as stated in the first paragraph of Recital 16 to the Definitive Duty Regulation - because the most realistic profit margin for Silver Seiko' s models for which normal value had to be constructed was the profit margin realized by Silver Seiko on its models sold on the domestic market in sufficient quantities for normal value to be based on domestic price . For those exporters not having such sales on the domestic market, e.g . TEC and Sharp, the Community authorities used the lowest of the three margins found ( 47.92 %) as the margin to be included in constructed normal value . That does not constitute discrimination as Silver Seiko argues, because the exporters concerned were in different situations : in the case of Silver Seiko the group' s own profit margin could be used whereas exporters in the position of TEC and Sharp did not have a representative domestic profit margin of their own which could be used . Moreover, I consider that it was within the discretion of the Community authorities, in establishing a "reasonable" profit margin for the purpose of Article 2 ( 3 ) ( b ) ( ii ) of the Basic Regulation, to take the lowest of the three actual margins found . In my opinion they were not under any obligation, as Silver Seiko suggests, to use an average of the three margins found .

Silver Seiko argues that, in calculating the profit to be included in the constructed normal value of its models for which normal value was constructed, the Community authorities subtracted none of the overhead expenses incurred by the sales company Silver Business Machines but only those of the parent company Silver Seiko Limited . However, if such costs had been deducted from profit, they would have had to be added in to the cost of production included in the constructed normal value, and the end result of the calculation would, as I see it, have been no different . Since the argument can make no difference to the normal value constructed, it has no force as a ground of annulment .

Accordingly all of Silver Seiko' s arguments under the heading of normal value in my opinion fall to be rejected .

2 . Export price

Under the heading of export price Silver Seiko argues ( 1 ) that excessive profits were deducted from its EEC resale prices and ( 2 ) that higher amounts for overhead expenses were deducted from its EEC resale prices than were actually incurred .

As stated in Recital 23 of the Definitive Duty Regulation, "export prices were finally adjusted by a profit margin for the related importer of 5% which was considered reasonable in the light of the profit margins of independent importers of the product concerned ". Silver Seiko does not contest the figure found for the profit of independent importers but argues that instead of that figure the profit figure used should have been that realized by the Silver Seiko subsidiaries in the EEC . However, since the transfer price between the parent company Silver Seiko Limited and its EEC subsidiaries falls to be disregarded as a basis for export price under Article 2 ( 8 ) ( b ) of the Basic Regulation, so equally may the resulting profit realized by the subsidiary on resale be left aside . Because of the association between exporter and importer the Community authorities were entitled under that provision to construct export price including "a reasonable profit margin ". It seems to me that the margin found for independent importers is a reasonable one to use for this purpose, and that Silver Seiko' s argument therefore should be rejected .

As regards the "reasonable margin for overheads" to be allowed for in constructing export price under Article 2 ( 8 ) ( b ) of the Basic Regulation, Silver Seiko argues that the overheads of its EEC subsidiaries should have been allocated, as between electronic typewriters and other types of business machines sold by those companies, on the basis of the number of units sold not on the basis of turnover . However, Article 2 ( 11 ) of the Basic Regulation provides that allocation should normally be "in proportion to the turnover for each product and market under consideration ". The Community authorities have followed that general rule here . The Council has stated that the Community authorities may depart from that general rule in cases where they are satisfied that a specific allocation more accurately reflects the costs incurred but that they were not so satisfied in the present case . Silver Seiko' s main argument in this respect is that application of the general rule is less advantageous to it than application of the alternative basis which it suggests, but that argument does not suffice to establish a case for departing from the general rule . For the rest, Silver Seiko in my view fails to demonstrate the need for a special basis of allocation and accordingly the Community authorities were entitled to apply the general rule laid down in Article 2 ( 11 ). Silver Seiko' s argument therefore fails .

3 . Comparison between normal value and export price

Under the heading of comparison Silver Seiko argues as follows . ( 1 ) Allowances for differences in level of trade were wrongly denied . ( 2 ) Allowances for differences in quantities were wrongly denied . ( 3 ) Allowances for differences in terms and conditions of sale were wrongly denied . ( 4 ) The comparisons were a mixture of methods and were not made at the same time or on a transaction-by-transaction basis .

On a balance of the evidence put before the Court, I consider that Silver Seiko has failed to demonstrate any error in the finding, set out in the last paragraph of Recital 25 to the Definitive Duty Regulation, that "the composition of the categories of customers is similar for both domestic and export sales ". For that reason and for the reasons given in my Opinions in TEC and Canon, I consider that Silver Seiko' s argument concerning the level of trade falls to be rejected .

As to allowances for differences in quantities, Article 2 ( 10 ) ( b ) ( i ) of the Basic Regulation provides inter alia : "If the export price and the normal value are not on a comparable basis in respect of (( inter alia quantities )), due allowance shall be made in each case, on its merits, for differences affecting price comparability . Where an interested party claims such an allowance, it must prove that its claim is justified . The following guidelines shall apply in determining these allowances : Differences in quantities : allowances shall be made when the amount of any price differential is wholly or partly due to (( inter alia )) price discounts for quantity sales which have been made freely available in the normal course of trade over a representative preceding period of time, usually not less than six months, and in respect of a substantial proportion, usually not less than 20%, of the total sales of the product under consideration made on the domestic market ". Under this provision Silver Seiko had to claim such allowances and justify its claim . Furthermore, it had to show that the price differentials were "due to" price discounts for quantity sales . If a price differential were in fact due to dumping, it would defeat the purpose of the Basic Regulation if it could be attributed to quantity discounts and removed as such from the terms of the comparison . The detailed guidelines laid down in Article 2 ( 10 ) ( b ) ( i ), it seems to me, are aimed at ensuring that allowances are made only where they can genuinely be attributed to quantity discounts .

Silver Seiko relies on discounts on two of its models to one particular customer in Japan . However, neither during the investigation nor during these proceedings has Silver Seiko produced any real evidence that such discounts were "made freely available in the normal course of trade" as required by Article 2 ( 10 ) ( b ) ( i ). It has not been shown that there was a pattern of quantity discounts or that the discounts alleged were known and freely available to all potential purchasers . Therefore, Silver Seiko failed to fulfil the conditions laid down in Article 2 ( 10 ) ( b ) ( i ) and its argument concerning allowances for differences in quantities is not made out .

As regards differences in terms and conditions of sale, Silver Seiko claims that it was wrongly refused allowances for ( 1 ) the interest costs of "inventory" held by Silver Business Machines and ( 2 ) the cost of credit granted by Silver Business Machines to purchasers in Japan . In fact the Community authorities did made an allowance for credit to customers in Japan . The number of days credit allowed for was substantial but Silver Seiko contends that it should have been somewhat higher . ( The exact figures are confidential .) The cost of the remaining days credit to customers and the interest cost of holding stock have not been shown to be directly related to the sales under consideration as required by Article 2 ( 10 ) ( c ) of the Basic Regulation, and therefore were lawfully disallowed . Silver Seiko suggests that they should have been allowed because corresponding expenses had been deducted in establishing the export price in the Community . However, that suggestion is based on an assumption that normal value and export price must be calculated in the same way, which is unfounded for the reasons given in the "Mini ball-bearings" judgments and in my Opinions in TEC and Canon . Accordingly Silver Seiko' s argument concerning allowances in respect of differences in terms and conditions of sale fails .

Article 2 ( 13 ) ( b ) of the Basic Regulation provides : "Where prices vary, the dumping margin may be established on a transaction-by-transaction basis or by reference to the most frequently occurring, representative or weighted average prices ". It clearly does not stipulate that comparison of normal value and export price may be effected only on a transaction-by-transaction basis . Recital 27 to the Definitive Duty Regulation states : "Normal value was generally compared with export prices on a transaction-by-transaction basis ". From the use of the word "generally" it is clear that the Council did not claim that all the comparisons were made on a transaction-by-transaction basis . For Silver Seiko they were not made on such a basis but by reference to weighted average prices . In my opinion, that method of comparison was in accordance with Article 2 ( 13 ) ( b ) of the Basic Regulation and was truly reflected in Recital 27 of the Definitive Duty Regulation, contrary to what Silver Seiko argues .

Silver Seiko also complains that the weighted average for the export prices was a monthly one whereas the weighted average for the normal value was an annual one, in breach of the provision in Article 2 ( 9 ) of the Basic Regulation that export price and normal value "shall normally be compared ... as nearly as possible at the same time ". It appears that a single normal value was indeed determined for the entire reference period ( of one year ) whereas export prices were calculated for each month during that period . However, each monthly export price was compared with normal value, the differences were weighted by the quantities sold in each month and an annual average was arrived at . It follows that the export prices and the normal value relate to the same 12-month period and that Silver Seiko' s argument is unsubstantiated .

Accordingly all of Silver Seiko' s arguments concerning the comparison between normal value and export price in my opinion fall to be rejected .

4 . Injury to Community industry

Under the heading of injury, Silver Seiko argues as follows . ( 1 ) The failure to exclude from the injury determination those EEC producers which were themselves importers of allegedly dumped products invalidates the entire injury analysis . ( 2 ) There has not been an adequate injury analysis as required by the Basic Regulation, because the injury factors specified in Article 4 ( 2 ) of the Basic Regulation have not been properly analysed, because the so-called "target-price" system used by the Commission and Council is an inadequate basis upon which to determine injury, and because any injury to the Community industry has been caused by factors other than dumping by Silver Seiko, and therefore the alleged injury has been wrongfully attributed to Silver Seiko .

I reject all of these arguments concerning injury for the reasons given in my Opinions in Canon and TEC .

5 . Imposition of definitive anti-dumping duties

Under this heading, Silver Seiko argues as follows . ( 1 ) By strictly setting the definitive duty rate at the alleged injury level attained by use of the so-called "target-price" system, duties have been set at a rate which is higher than any actual dumping margin or injury level, and the duties have been set without adequate reasoning as to an appropriate rate of duty . ( 2 ) The imposition of definitive duties on the applicants and the failure to impose definitive duties on Nakajima constitutes illegal discrimination .

Both of these arguments fail for the reasons given in my Opinions in Canon and TEC .

6 . Definitive collection of the provisional duties

Under this heading, Silver Seiko contests the definitive collection of the provisional duties on the grounds that provisional duties have a maximum period of validity of either four or six months and that they must be definitively collected before their expiration .

Article 11 ( 5 ) of the Basic Regulation provides : "Provisional duties shall have a maximum period of validity of four months . However, where exporters representing a significant percentage of the trade involved so request or, pursuant to a notice of intention from the Commission, do not object, provisional anti-dumping duties may be extended for a further period of two months ". Article 11 ( 7 ) provides : "After expiration of the period of validity of provisional duties, the security shall be released as promptly as possible to the extent that the Council has not decided to collect it definitively ". Silver Seiko argues that the Provisional Duty Regulation expired on its own terms on 22 April 1985 or as extended by Council Regulation No 1015/85 ( Official Journal 1985, L 108, p . 18 ) on 22 June 1985 and that, since the Definitive Duty Regulation did not come into effect until 23 June 1985, it could not validly collect the provisional duties as it purported to do since they had already expired .

That argument, however, does not take account of the effect of Council Regulation No 1182/71 of 3 June 1971 determining the rules applicable to periods, dates and time-limits ( Official Journal, English Special Edition 1971 ( II ), p . 354 ). According to that regulation, in particular Articles 3 and 4 thereof, the relevant acts of the Council and Commission took effect as follows . ( 1 ) The Provisional Duty Regulation entered into force according to its Article 3 on the day following its publication in the Official Journal, i.e . on 23 December 1984 at 00.00 hours . It expired on 23 April 1985 at 24.00 hours ( i.e . with the expiry of the last hour of the day falling on the same date as the day from which the period ran ). ( 2 ) Council Regulation No 1015/85 ( with corrigendum in Official Journal 1985, L 112, p . 59 ) entered into force according to its Article 2 on the day following its publication in the Official Journal, i.e . on 21 April 1985 at 00.00 hours and extended the validity of the provisional anti-dumping duties for a period of 2 months beginning on 23 April 1985 at 00.00 hours ( date stipulated in the second paragraph of Article 2 as corrected ) until 23 June 1985 at 24.00 hours ( i.e . until the expiry of the last hour of the day falling on the same date as the day from which the period ran ). ( 3 ) The Definitive Duty Regulation entered into force according to its Article 3 on the day following its publication in the Official Journal, i.e . on 23 June 1985 at 00.00 hours . At that date and time therefore the Council' s decision that the provisional duties were to be definitively collected became effective . At that date and time, contrary to Silver Seiko' s contention, the Provisional Duty Regulation was still valid .

On that view, it is not necessary to decide whether the words "decided to collect" in Article 11 ( 7 ) of the Basic Regulation refer to the date when the Council takes the decision or the date when the act embodying the decision enters into force . Although either view is arguable, it would seem to me at first sight that the former is the more likely interpretation .

Silver Seiko also argues that, since it did object to an extension, the Council was not allowed to extend the provisional duties under Article 11 ( 5 ) of the Basic Regulation . However it appears that only Brother and Silver Seiko objected to the extension whilst the other exporters concerned either did not object or even approved such an extension . Those other exporters in my view plainly represent "a significant percentage of the trade involved", so that the condition in Article 11 ( 5 ) was in fact fulfilled, contrary to Silver Seiko' s contention .

In my opinion, therefore, Silver Seiko' s arguments concerning the definitive collection of the provisional duties are not made out .

7 . Procedural irregularities

Finally, under the heading of procedural irregularities, Silver Seiko argues that it was not granted equal access to information or an equal opportunity to respond and that its rights to provide a defence were violated .

In dealing with these arguments it must be borne in mind that the procedure in anti-dumping investigations is governed in great detail by the provisions of Articles 7 and 8 of the Basic Regulation . Article 7 ( 4 ) ( c ) ( iii ) of the Basic Regulation provides : "information shall normally be given no later than 15 days prior to the submission by the Commission of any proposal for final action pursuant to Article 12 . Representations made after the information is given shall be taken into consideration only if received within a period to be set by the Commission in each case, which shall be at least 10 days, due consideration being given to the urgency of the matter ". It appears that formal disclosure on the level of duty in this case was made by telex to all exporters on the same date - 6 May 1985 - and that the same time-limit - 17 May 1985 at 09.00 hours, i.e . 10 days - was set for all replies . The proposal for the Definitive Duty Regulation was transmitted to the Council on 24 May 1985 . The information was thus given to the exporters 18 days prior to the submission of the proposal . It follows in my view that in the present case the requirements of Article 7 ( 4 ) ( c ) ( iii ) were respected by the Commission .

Silver Seiko also complains, however, that before the telex of 6 May 1985, indeed before the disclosure meeting of 25 April 1985, another exporter - Canon - was given substantial amounts of information concerning dumping calculations, dumping margins and the calculations to be used by the Commission for determining injury, whereas Silver Seiko did not receive such information until the telex of 6 May 1985 . Silver Seiko contends that this treatment gave Canon more time to prepare its response, which was in breach of the principle of equality .

I accept that general principles of fair procedure may on occasion be relied on in anti-dumping proceedings even where the express provisions of the Basic Regulation concerning procedure have been complied with, but it must first be shown in what way the express procedural rules fail to provide adequately for the situation complained of . In my view Silver Seiko does not make out such a case . It admits itself that it is difficult to assess how much the matters complained of prejudiced Silver Seiko vis-à-vis Canon, and says : "This deprivation of time and information is intangible ". Indeed it is; and moreover it must be set in its practical context . Although the ideal may be for the Community authorities to ensure that exporters are each given an equal opportunity to respond to information, it may not always be practicable - particularly in a large proceeding such as the present one - for them to arrange simultaneous meetings with interested parties or simultaneous disclosure . I do not consider that Silver Seiko has established that the matters complained of amount to an actual infringement of the principle of equality - if that is the correct one to invoke in this context - or any other principle of fair procedure .

Silver Seiko complains of the difficulty of arranging appointments with Commission officials at times which were convenient to it . As a general complaint, that does not amount to a ground for annulment . Silver Seiko instances one case where one of its counsel were allegedly denied access by the Commission to its files . However, it appears that there is no request on the Commission' s files to which no reply was given but that, if a representative of one of the exporters appeared without prior notice at the Commission' s offices to consult a file, such a request may not have been granted . Article 7 ( 4 ) ( c ) ( i ) of the Basic Regulation requires such requests to be made in writing and it appears that the practice is that a mutually convenient date is then arranged . I consider therefore that Silver Seiko has not made out any ground for complaint here .

Silver Seiko next complains of being deprived of information on a number of points relating to the determination of injury . It complains that it requested details of the volume of EEC imports from Sweden, Switzerland, Singapore and the USA, but were given details only for the USA and Singapore and that those details were in a composite form which did not make it possible to distinguish the volume of imports from Singapore or the USA individually . The Council asserts, without contradiction, that using this information and setting it against the figures published in Recitals 31 and 32 of the Provisional Duty Regulation, Silver Seiko could work out for itself the aggregate figure for imports of Swedish and Swiss origin . Silver Seiko' s complaint therefore boils down to one that it was not given separate figures for each of the countries concerned . It is obvious that such figures are important commercial intelligence, and the Community authorities had to treat it with due regard for the confidentiality provisions in Article 8 of the Basic Regulation . In particular the figures in question had to be treated as confidential because they would concern only one company in Sweden, one in Switzerland and one in Singapore, and only two companies in the USA . Therefore, in my view, the information was properly withheld in accordance with Article 8 of the Basic Regulation .

Silver Seiko also claims that information on the past and future investment plans of EEC manufacturers was not given . It appears, however, that at a meeting on 10 January 1985 the Community authorities explained to Silver Seiko that the details of investments by sector were considered to be of a highly sensitive and confidential nature and that their disclosure would lead to injury being caused to the producers concerned . In my opinion, it was plainly correct to withhold such information under Article 8 of the Basic Regulation .

In connection with the establishment of the target prices, Silver Seiko claims that it was refused a breakdown of the Commission' s analysis which it had requested on the basis of Silver Seiko' s models and the comparisons with EEC producers, and on a model, company, and country basis . However, such information would have enabled Silver Seiko to determine each Community producer' s cost of production . Such information is clearly confidential within the meaning of Article 8 of the Basic Regulation, and in my opinion was properly withheld under that provision .

Finally, Silver Seiko complains that it was refused information as to how the target prices were computed for each of the complainants . However, it appears that at a disclosure meeting on 25 April 1985 the method used for the calculation of the target price was disclosed and that it was pointed out that the individual cost and profit figures were highly confidential and that their disclosure would be likely to harm the Community producers . Subsequently by telex dated 6 May 1985 the Community authorities gave the overall profit margin used in calculating the target prices . It seems to me that the Community authorities thus gave all the information that they could in this respect consistently with Article 8 of the Basic Regulation .

Accordingly, in my view, Silver Seiko' s complaints concerning the alleged procedural irregularities are all unfounded .

Case 107/86

The Council has submitted that Silver Seiko' s second application ( Case 107/86 ) should be dismissed as inadmissible or at least that Silver Seiko should be ordered to pay the costs of that application in any event because it is repetitious . However, for the reasons which I gave in my Opinion in TEC in relation to TEC' s second application ( 106/86 ), I consider that Silver Seiko' s second application here ( 107/86 ) should be treated as admissible and that the costs thereof should follow those in Case 273/85 .

Conclusion

Accordingly, in my opinion, Cases 273/85 and 107/86 should be dismissed and the applicants ordered to pay the costs of the Council, the Commission and Cetma, including the costs of the proceedings for interim measures .