Nakajima All Precision Co. Ltd v Council of the European Communities.
Date: 1991-05-07
14 On this point, it should be noted first of all that the Court has consistently held (see, in particular, the judgment in Case C-156/87 Gestetner Holdings plc v Council and Commission [1990] ECR I-781, at 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 a 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.
19 That conclusion is borne out by the fourth and thirty-third recitals in the preamble to the new basic regulation, which present the new wording of Article 2(3)(b)(ii) as a mere clarification of the version of that provision in the former basic regulation. Furthermore, the Council pointed out, without being contradicted, that the method of calculation to which Nakajima takes exception in the present case had already been applied by the Community authorities under the former basic regulation. Moreover, the Court has already ruled that there was nothing in Article 2(3)(b)(ii) of the former basic regulation which precluded the use of the profit normally realized by a company other than the one to which the anti-dumping investigation related as the reasonable margin of profit (judgment in Case 301/85 Sharp Corporation v Council [1988] ECR 5813, at paragraph 8).
29 It ought to be noted in this regard that, in its judgment in Joined Cases 21 to 24/72 International Fruit Company NV and Others v Produktschap voor Groenten en Fruit [1972] ECR 1219, the Court ruled (at paragraph 18) that the provisions of the General Agreement had the effect of binding the Community. The same conclusion must be reached in the case of the Anti-Dumping Code, which was adopted for the purpose of implementing Article VI of the General Agreement and the recitals in the preamble to which specify that it is designed to "interpret the provisions of ... the General Agreement" and to "elaborate rules for their application in order to provide greater uniformity and certainty in their implementation".
30 According to the second and third recitals in the preamble to the new basic regulation, it was adopted in accordance with existing international obligations, in particular those arising from Article VI of the General Agreement and from the Anti-Dumping Code.
31 It follows that the new basic regulation, which the applicant has called in question, was adopted in order to comply with the
international obligations of the Community, which, as the Court has consistently held, is therefore under an obligation to ensure
compliance with the General Agreement and its implementing measures (see the judgments in Case 104/81 Hauptzollamt Mainz v Kupferberg [1982] ECR 3641, at paragraph 11, and in Case 266/81 SIOT v Ministero delle Finanze and Others [1983] ECR 731, at paragraph 28).
32 In those circumstances, it is necessary to examine whether the Council went beyond the legal framework thus laid down, as Nakajima claims, and whether, by adopting the disputed provision, it acted in breach of Article 2(4) and (6) of the Anti-Dumping Code.
37 It thus follows that Article 2(3)(b)(ii) of the new basic regulation is in conformity with Article 2(4) of the Anti-Dumping Code inasmuch as, without going against the spirit of the latter provision, it confines itself to setting out, for the various situations which might arise in practice, reasonable methods of calculating the
constructed normal value.
49 With regard to this point, it should be noted that the purpose of the rules of procedure of a Community institution is to organize the internal functioning of its services in the interests of good
administration. The rules laid down, particularly with regard to the organization of deliberations and the adoption of decisions, have therefore as their essential purpose to ensure the smooth conduct of the procedure while fully respecting the prerogatives of each of the members of the institution.
50 It follows that natural or legal persons may not rely on an alleged breach of those rules since they are not intended to ensure protection for individuals.
63 Next, so far as the application to Nakajima of the second method of calculation is concerned, it should be pointed out first of all that the Court has consistently held that Article 2(3)(b)(ii) of the former basic regulation, according to which a reasonable amount for SGA expenses had to be included in the constructed normal value, allowed the Community institutions a wide margin of discretion in evaluating that amount (see in particular the judgment in Joined Cases 260/85 and 106/86 TEC and Others v Council [1988] ECR 5855, at paragraph 33). That conclusion applies with equal validity to Article 2(3)(b)(ii) of the new basic regulation, the wording of which is identical, and applies in like manner to the taking of profits into account by the Community institutions for the purpose of constructing the normal value.
64 Secondly, it is necessary to point out that the Court has already ruled that, according to the scheme of Regulation No 2176/84, cited above, "the purpose of constructing the normal value is to determine the selling price of a product as it would be if that product were sold in its country of origin or in the exporting country" and that "consequently, it is the expenses relating to sales on the domestic market which must be taken into account" (judgment in Case 250/85 Brother Industries Ltd v Council [1988] ECR 5683, at paragraph 18; judgment in Joined Cases 277/85 and 300/85 Canon Inc. and Others v Council [1988] ECR 5731, at paragraph 26; judgment in TEC, cited above, at paragraph 24; and judgment in Joined Cases 273/85 and 107/86 Silver Seiko Ltd and Others v Council [1988] ECR 5927, at paragraph 16). Since those principles have remained unchanged under the new basic regulation, that conclusion is equally valid for that regulation.
70 In this connection, it must be pointed out that, with regard to a producer which does not sell on the Japanese market the product which is the subject of the anti-dumping proceeding, the Court has ruled that the correct comparison between the normal value and the export price at the "ex-factory" level presupposes that those two values are compared at the level of the first sale to an independent purchaser (see, in particular, the judgment in TEC, cited above, at paragraph 30). This view, developed by the Court in the context of the former basic regulation, also holds good for the interpretation of Article 2(6) of the Anti-Dumping Code, the content of which is identical to that of Article 2(9) of the former basic regulation on which the Court ruled in its judgment in TEC.
73 Furthermore, it is an established and undisputed fact that at no stage in the administrative proceedings did the applicant ask for adjustments to be made to compensate for the alleged difference in the level of trade in the comparison made between the normal value and the export price or, consequently, prove that such a claim could be
justified, as required by Article 2(9)(b) of the new basic regulation. Furthermore, during the procedure before the Court, Nakajima likewise did not produce any evidence to suggest that the Council ought in this case to have made more adjustments to its calculations than it actually did.
76 It is sufficient to note in this regard, as the Council pointed out during the written procedure, that the normal value must be constructed with reference to the conduct of other producers present on the market and upon the basis of a distinction between OEM and non-OEM sales, since marketing under a company' s own brand name involves appreciably higher costs than the sale of printers as OEM products. So far as concerns the account taken, for OEM sales, of the SGA expenses of vertically-integrated undertakings, the Council, in exercising the power of appraisal which it is recognized as having when evaluating complex economic situations (see, for example, the Court' s judgment in Case 258/84 Nippon Seiko KK v Council [1987] ECR 1923, at paragraph 21), was quite entitled to take the view that it was necessary to take account of the costs which a presence on the Japanese market would involve.
86 On this point it ought to be recalled, as has been stressed above at paragraph 76, that the institutions have a wide discretion when evaluating complex economic situations. This is so in particular when the period to be taken into consideration for the purposes of
determining injury in an anti-dumping proceeding is determined (see in particular the judgment in Case C-121/86 Epicheiriseon Metalleftikon Viomichanikon kai Naftiliakon AE and Others v Council [1989] ECR 3919, at paragraph 20).
108 In this connection, it should be recalled at the outset that, according to established case-law, the rights of the defence are respected if the undertaking concerned has been afforded the
opportunity during the administrative procedure to make known its views on the truth and relevance of the facts and circumstances alleged and, if necessary, on the documents used (see, for example, the judgment in Case 85/76 Hoffmann-La Roche & Co. AG v Commission [1979] ECR 461, at paragraph 11).
113 In any event, the fact that a different method of calculating the constructed normal value may have been applied under the previous legislation is irrelevant in this case since economic agents may not claim a right to have rules applied to them which may be altered by decisions taken by the Community institutions in the exercise of their powers (see, for example, the judgment in Case 256/84 Koyo Seiko Company Limited v Council [1987] ECR 1899, at paragraph 20).
119 Next, with regard to the alleged breach of vested rights, it is sufficient to point out that the Court has consistently held that in cases where the Community authorities have a wide margin of discretion economic agents cannot claim a vested right to the maintenance of an advantage which they obtained from the Community legislation in question in the form in which it existed at a given point in time (see, in particular, the judgment in Joined Cases 133 to 136/85 Walter Rau Lebensmittelwerke and Others v Bundesanstalt fuer landwirtschaftliche Marktordnung [1987] ECR 2289, at paragraph 18). In those circumstances, the method of calculating the constructed normal value applied in an earlier anti-dumping proceeding cannot create for Nakajima a vested right to the application of the same method in the present case.
134 The applicant' s contentions, however, lack any foundation. It is sufficient to note that in this case Nakajima has been unable to satisfy the requirements laid down in the Court' s case-law (see in particular the judgment in Case C-323/88 SA Sermes v Directeur des Services des Douanes de Strasbourg [1990] ECR I-3027, at paragraph 33) with regard to proof of the existence of a misuse of powers, for it has failed to indicate, on the basis of objective, relevant and conclusive evidence, the circumstances and reasons for presuming that the measure in question was adopted in order to achieve purposes other than those for which it was intended.