Rotexchemie International Handels GmbH & Co. v Hauptzollamt Hamburg-Waltershof.
Date: 1997-05-29
9 The aim of Article 2(5) of the basic regulation 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 judgments in Joined Cases C-305/86 and C-160/87 Techmashexport v Commission and Council [1990] ECR I-2945, paragraph 26, and in Case C-16/90 Nölle v Hauptzollamt Bremen-Freihafen [1991] ECR I-5163, paragraph 10).
10 The choice of reference country falls within the discretion enjoyed by the institutions when analysing complex economic situations.
11 The exercise of that discretion is not, however, exempt from judicial review.  It is settled case-law that, in the context of such review, the Court is to verify 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 (see the judgments in Case 240/84 Toyo v Council [1987] ECR 1809, paragraph 19, in Case 258/84 Nippon Seiko v Council [1987] ECR 1923, paragraph 21, and in Nölle, cited above, paragraph 12).
12 As regards in particular the choice of reference country, it should be verified whether the institutions neglected to take account of essential factors for the purpose of establishing the appropriate nature of the country chosen and whether the information contained in the documents in the case was considered with all the care required for the view to be taken that the normal value was determined in an appropriate and not unreasonable manner (see Nölle, cited above, paragraph 13).
15 It should be pointed out that the mere fact that there is only one producer in the reference country does not in itself preclude the prices there from being the result of genuine competition, since such competition may just as well result, in the absence of price controls, from the presence of significant imports from other countries.  As may be seen from the 11th recital in the preamble to Regulation No 1531/88 - and this has not been contested - the American market in potassium permanganate receives substantial imports from other countries.
21 Whilst the Council and the Commission are not in principle required to consider every reference country proposed by the parties during an anti-dumping proceeding, they are required to examine in greater depth the proposals submitted to them if they have doubts, or ought to have had doubts, concerning the country of their choice (see Nölle, cited above, paragraph 32).
23 The Council and the Commission have, moreover, convincingly explained their reasons for not opting for countries like India or Brazil, and Rotexchemie has not adduced the slightest evidence capable of casting doubt on their analysis.  As regards the case of India in particular, whilst it is true, as the national court states, that 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, it is also necessary for that market to be representative in relation to the exports in question (see Neotype Techmashexport v Commission and Council, cited above, paragraph 31).  In this case, the characteristics of the Indian market in potassium permanganate put forward by the Council and the Commission abundantly demonstrate that that was not so.  More generally, as the Advocate General points out in paragraph 30 of his Opinion, everything in this case points to the conclusion that the United States of America was indeed the only country with a market economy capable of being chosen as the reference country.