Nippon Seiko KK v Council of the European Communities.
Date: 1987-05-07
7 HOWEVER, IT SHOULD BE NOTED THAT THE CONTESTED REGULATION DOES NOT LAY DOWN GENERAL RULES WHICH APPLY TO A WHOLE GROUP OF TRADERS WITHOUT DISTINGUISHING BETWEEN THEM BUT IMPOSES DIFFERENT ANTI-DUMPING DUTIES ON A SERIES OF MANUFACTURERS OR EXPORTERS OF SMALL BALL-BEARINGS ESTABLISHED IN JAPAN AND SINGAPORE WHO ARE EXPRESSLY NAMED, AND ALSO ON OTHER UNDERTAKINGS WHICH ARE NOT NAMED BUT WHICH PURSUE THE SAME ACTIVITIES IN THOSE SAME COUNTRIES . UNDER THOSE CIRCUMSTANCES IT MUST BE CONCLUDED THAT NSK IS INDIVIDUALLY CONCERNED ONLY BY THOSE PROVISIONS OF THE CONTESTED REGULATION WHICH IMPOSE ON IT A SPECIFIC ANTI-DUMPING DUTY AND DETERMINE THE AMOUNT THEREOF, AND NOT BY THOSE PROVISIONS WHICH IMPOSE ANTI-DUMPING DUTIES ON OTHER UNDERTAKINGS .
8 IT FOLLOWS FROM THE FOREGOING THAT THE OBJECTION OF INADMISSIBILITY RAISED BY THE COUNCIL MUST BE UPHELD AND THE APPLICANT' S PRINCIPAL CLAIM FOR A DECLARATION THAT REGULATION NO 2089/84 IS VOID IN ITS ENTIRETY MUST BE REJECTED . IT IS, HOWEVER, NECESSARY TO EXAMINE THE MERITS OF THE ALTERNATIVE CLAIM FOR A DECLARATION THAT THOSE PROVISIONS OF THE CONTESTED REGULATION WHICH ARE OF CONCERN EXCLUSIVELY TO NSK ARE VOID .
SUBSTANCE
12 IT IS CLEAR FROM PARAGRAPH 11 OF THE PREAMBLE TO THE CONTESTED REGULATION THAT IN THIS CASE THE NORMAL VALUE WAS CALCULATED ON THE BASIS OF A WEIGHTED AVERAGE OF THE PRICES PAID ON THE DOMESTIC MARKET . AS IS STATED IN PARAGRAPH 16 OF THE PREAMBLE, THE EXPORT PRICE WAS
CALCULATED ACCORDING TO A TRANSACTION-BY-TRANSACTION METHOD . IT IS CLEAR FROM THE DOCUMENTS BEFORE THE COURT THAT UNDER THAT METHOD EXPORT PRICES ABOVE THE NORMAL VALUE WERE TAKEN INTO ACCOUNT AFTER BEING ARTIFICIALLY REDUCED TO THE LEVEL OF THE NORMAL VALUE AND A WEIGHTED AVERAGE WAS DETERMINED OF ALL THE EXPORT PRICES ESTABLISHED, WHETHER THEY WERE BELOW THE NORMAL VALUE OR EQUAL TO NORMAL VALUE . THE DUMPING MARGIN WAS THEN DETERMINED BY COMPARING THE NORMAL VALUE CALCULATED ACCORDING TO THE WEIGHTED AVERAGE METHOD AND THE EXPORT PRICE CALCULATED ACCORDING TO THE TRANSACTION-BY-TRANSACTION METHOD .
A - SUBMISSION CONCERNING THE DIFFERENCE IN THE METHODS USED FOR CALCULATING THE NORMAL VALUE AND THE EXPORT PRICE
14 IT MUST BE STATED FIRSTLY THAT THE PROCEDURE FOR CALCULATING THE NORMAL VALUE IS LAID DOWN IN ARTICLE 2*(3 ) TO ( 7 ) OF REGULATION NO 3017/79, AND THE PROCEDURE FOR CALCULATING THE EXPORT PRICE IS LAID DOWN IN ARTICLE 2*(8 ) THEREOF . THOSE PROVISIONS SEPARATELY SPECIFY SEVERAL DIFFERENT METHODS FOR CALCULATING EACH OF THE TERMS OF THE COMPARISON .
21 IT SHOULD BE NOTED THAT THE CHOICE BETWEEN THE DIFFERENT METHODS OF CALCULATION SPECIFIED IN ARTICLE 2*(13)*(B ) OF REGULATION NO 3017/79 REQUIRES AN APPRAISAL OF COMPLEX ECONOMIC SITUATIONS . THE COURT MUST THEREFORE, AS IT HAS HELD IN PARTICULAR IN ITS JUDGMENT OF 11 JULY 1985 IN CASE 42/84 REMIA AND OTHERS V COMMISSION (( 1985 )) ECR 2545, LIMIT ITS REVIEW OF SUCH AN APPRAISAL TO VERIFYING WHETHER THE RELEVANT PROCEDURAL RULES HAVE BEEN COMPLIED WITH, WHETHER THE FACTS ON WHICH THE CHOICE IS BASED HAVE BEEN ACCURATELY STATED AND WHETHER THERE HAS BEEN A MANIFEST ERROR OF APPRAISAL OR A MISUSE OF POWERS .
34 CONSEQUENTLY, AS THE COURT HELD IN ITS JUDGMENT OF 28 OCTOBER 1982 IN CASE 52/81 FAUST V COMMISSION (( 1982 )) ECR 3745, WHERE THE INSTITUTIONS ENJOY A MARGIN OF DISCRETION IN THE CHOICE OF THE MEANS NEEDED TO ACHIEVE THEIR POLICIES, TRADERS CANNOT CLAIM TO HAVE A LEGITIMATE EXPECTATION THAT THE MEANS ORIGINALLY CHOSEN WILL BE MAINTAINED, SINCE THESE MAY BE ALTERED BY THE INSTITUTIONS IN THE EXERCISE OF THEIR POWERS .
45 MOREOVER, WHEREAS ADJUSTMENTS REQUIRED FOR THE PURPOSE OF CONSTRUCTING THE EXPORT PRICE ARE MADE AUTOMATICALLY BY THE COMMUNITY INSTITUTIONS PURSUANT TO THE PROVISIONS OF ARTICLE 2*(8 ) OF REGULATION NO 3017/79, THE ADJUSTMENTS PROVIDED FOR BY ARTICLE 2*(10 ) MAY ALSO BE MADE ON A CLAIM BY AN INTERESTED PARTY . A PARTY MAKING SUCH A CLAIM MUST PROVE THAT ITS CLAIM IS JUSTIFIED, THAT IS TO SAY THAT THE DIFFERENCE ON WHICH IT RELIES CONCERNS ONE OF THE FACTORS LISTED BY ARTICLE 2*(9 ), THAT THE DIFFERENCE AFFECTS PRICE COMPARABILITY AND LASTLY, IF, AS IN THIS CASE, IT IS A QUESTION PARTICULARLY OF DIFFERENCES IN CONDITIONS AND TERMS OF SALE, THAT THOSE DIFFERENCES BEAR A DIRECT RELATIONSHIP TO THE SALES UNDER CONSIDERATION .