Neotype Techmashexport GmbH v Commission and Council of the European Communities.
Date: 1990-07-11
13 As regards Neotype' s interest in contesting the provisional regulation, it should be stated that, as the amounts secured as provisional anti-dumping duties were collected, in accordance with Article 2(1 ) of the definitive regulation, at the rate of duty definitively imposed, Neotype may place no reliance on any legal effect arising out of the provisional regulation ( see the judgments in Case 56/85 Brother v Commission [1988] ECR 5655, paragraph 6, and in Joined Cases 294/86 and 77/87 Technointorg v Commission and Council [1988] ECR 6077, paragraph 12 ).
17 In its observations the intervener, Gimelec, contends that the action brought by Neotype against the definitive regulation is inadmissible inasmuch as the findings made in that regulation as to the existence of dumping do not concern the applicant directly, since the dumping margin for the exported products was established in accordance with the export prices of the exporter in question and not in accordance with the resale prices charged by the applicant .
18 Since this is an objection of inadmissibility based on public policy, to be examined of the Court' s own motion under Article 92(2 ) of the Rules of Procedure, there is no need to examine whether an intervener can raise an objection of inadmissibility which has not been raised by the party in support of whose conclusions it is intervening .
19 According to the Court' s consistent case-law, 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 for the products in question form the basis of the constructed export price, pursuant to Article 2(8)(b ) of Regulation No 2176/84, where exporter and importer are associated ( see judgments in Case 118/77 ISO v Council [1979] ECR 1277, paragraph 16, and in Cases 239 and 275/82 Allied Corporation v Commission [1984] ECR 1005, paragraphs 11 and 15, and the orders of the Court in Case 279/86 Sermes v Commission [1987] ECR 3109, paragraphs 14 to 16, and Case 301/86 Frimodt Pedersen v Commission [1987] ECR 3123, paragraphs 14 to 16 ).
20 The considerations underlying that case-law are applicable not only in connection with a finding of dumping by reference to importers' resale prices but also in connection with the calculation of the anti-dumping duty itself . As is apparent from Article 1(4)(a ) of the definitive regulation, for associated importers the net unit price, free-at-Community-frontier, in accordance with which the amount of anti-dumping duty to be paid is determined, is the customs value as determined in accordance with Article 6 of Council Regulation ( EEC ) No 1224/80 of 28 May 1980 on the valuation of goods for customs purposes ( Official Journal 1980 L 134, p . 1 ). Under that provision the customs value is based essentially on the price at which the imported products are sold by the importer in question to persons not connected with the vendor . Associated importers are therefore in a position to influence, by means of the resale prices charged for the products in question to independent buyers, the amount of the duty payable .
26 The aim of that provision is to prevent account from being taken of prices and costs in non-market-economy countries which are not the normal result of market forces ( see the Technointorg judgment, cited above, paragraph 29 ).
27 Article 2(5 ) defines as countries not having a market economy in particular those countries to which Regulation ( EEC ) No 1765/82 of 30 June 1982 on common rules for imports from State-trading countries ( Official Journal 1982 L 195, p . 1 ) applies; Yugoslavia is not amongst those countries .
31 That reasoning cannot be accepted . The size of the domestic market is not in principle a factor capable of being taken into consideration in the choice of a reference country as determined by Article 2(5 ), in so far as during the period of the investigation there is a sufficient number of transactions to ensure the representative nature of the market in relation to the exports in question . In that context it should be remembered that, in the judgment in Case 250/85 Brother v Commission [1988] ECR 5683, paragraphs 12 and 13, the Court rejected the challenge against the institutions' practice of fixing the minimum level of representativity of the domestic market, for the purposes of calculating the normal value in accordance with Article 2(3 ) of Regulation No 2176/84, at 5% of the exports in question . It is apparent neither from the file nor from the arguments put forward before the Court that the Yugoslav market was not representative in the abovementioned sense .
40 On that point it should be recalled that, in its judgment in Case 255/84 Nachi Fujikoshi v Council [1987] ECR 1861, paragraph 53, the Court held that, in determining a dumping margin, the institutions may take into account the official rates of exchange on the basis of which international commercial transactions are carried out .
45 In that respect the Court has consistently held ( see in particular the judgments in Nachi Fujikoshi v Council, cited above, paragraph 39 and in Case C-156/87 Gestetner v Commission [1990] ECR I-781, paragraph 69 ) that the statement of reasons required by Article 190 of the Treaty must disclose in a clear and unequivocal fashion the reasoning followed by the Community authority which adopted the measure in question in such as way as to make the persons concerned aware of the reasons for the measure and thus enable them to defend their rights, and to enable the Court to exercise its supervisory jurisdiction .
50 As regards the reduction in market share for imported electric motors, relied on by Neotype, it should be pointed out that, in accordance with Article 4(2 ) of Regulation No 2176/84, the examination of injury must take account of a whole series of factors and no single factor can in itself be decisive .
58 As far as this submission is concerned, under Article 13(2 ) of Regulation No 2176/84 regulations imposing an anti-dumping duty are to indicate in particular the amount and type of duty imposed, together with certain other matters . Accordingly, the institutions are free to choose, within the limits of their margin of discretion, between the different types of duty .
60 In taking that action, the Council did not exceed the limits of its discretionary power, since, in particular, a variable duty is generally more favourable to the traders in question, on account of the fact that it makes it possible to avoid anti-dumping duties, provided that the imports are effected at prices above the minimum price fixed .