Gestetner Holdings plc v Council and Commission of the European Communities.
Date: 1990-03-14
3 Gestetner is an original equipment manufacturer ( hereinafter : "OEM "), that is to say, a company supplying under its own brand name products manufactured by other undertakings . It purchases plain paper photocopiers in Japan from Mita, a Japanese manufacturer, and sells them under the Gestetner brand name in the Community and many non-member countries .
12 As the Court has consistently held, in particular in its judgment of 7 May 1987 in Case 258/84 Nippon Seiko v Council (( 1987 )) ECR 1923, paragraph 7, a regulation imposing different anti-dumping duties on a series of traders is of direct concern to any one of them only in respect of those provisions which impose on that trader a specific anti-dumping duty and determine the amount thereof, and not in respect of those provisions which impose anti-dumping duties on other undertakings .
17 Regulations introducing an anti-dumping duty are legislative in nature and scope, inasmuch as they apply to all traders generally . Nevertheless, it is conceivable that some provisions of those regulations may be of direct and individual concern to those producers and exporters of the product in question who are alleged on the basis of information about their business activities to be dumping . This is true in general of producers and exporters who are able to establish that they were identified in the measures adopted by the Commission or the Council or were concerned by the preliminary investigations ( see judgments of 21 February 1984 in Joined Cases 239 and 275/82 Allied Corporation I (( 1984 )) ECR 1005, paragraphs 11 and 12, and of 23 May 1985 in Case 53/83 Allied Corporation II (( 1985 )) ECR 1621, paragraph 4 ).
18 The same is true of those importers whose resale prices were taken into account for the construction of export prices and who are consequently concerned by the findings relating to the existence of dumping ( see judgments of 29 March 1979 in Case 118/77 Import Standard Office ( ISO ) (( 1979 )) ECR 1277, paragraph 15, and of 21 February 1984 Allied Corporation I, quoted above, paragraph 15 ).
20 It was by reference to the particular features of Mita' s sales to OEMs, especially the differences in costs incurred by Mita in its sales to OEMs as compared with its costs in sales of plain paper photocopiers under its own brand name, that the Council saw fit, in constructing the normal value, to set the profit margin of exporters at 5%, that is to say, at a lower rate than the average profit margin, which was estimated at 14.6 %.
21 Proceeding on the basis of the normal value thus constructed for sales by Mita to OEMs, the Council and the Commission arrived at a dumping margin lower than the margin calculated for sales of plain paper photocopiers marketed under Mita' s own brand name, and that dumping margin, together with those ascertained for all Mita' s sales channels, was taken into account in calculating a weighted dumping margin on the basis of which the anti-dumping duty was set .
22 It is true that the profit margin of 5% was applied without any differentiation between the various traders concerned for the purpose of constructing the normal value of plain paper photocopiers . However, the traders in question, who are limited in number, were identified by the institutions, and it was precisely in order to reflect the particular features of their business dealings with producers that the profit margin used was set at 5 %.
23 It follows from the foregoing that there is no need to define the applicant as an importer or as an exporter; in the light of its business dealings with Mita, Gestetner is concerned by the findings relating to the existence of the dumping complained of, and the provisions of the contested regulation regarding Mita' s dumping practices are therefore of direct and individual concern to it .
27 Plain paper photocopiers produced by Mita are sold through Mita Europe, which handles customers' orders, sends them the invoices and receives the relevant payments . However, the price paid by purchasers to Mita Europe is not the same as the price invoiced by Mita Japan to Mita Europe .
32 It is true that the last part of Article 2(8)(b ) mentions only the allowance to be made for all costs incurred between importation and resale, whereas the activities of Mita Europe are pursued prior to importation and, on the basis that Mita Europe resells plain paper photocopiers to Gestetner, that resale takes place before importation .
33 However, the allowances referred to are those inherent in the construction of an export price in the commonest cases of an association or a compensatory arrangement between the exporter and the importer or a third party . That does not mean that Article 2(8)(b ) precludes the making of necessary allowances when the export price must be constructed for other reasons .
47 According to the Council and the Commission, Olivetti and Océ imported plain paper photocopiers from Japan so as to be able to offer their customers a full range of models . Those photocopiers, falling within segments 1 and 2, were sold at higher prices than those charged by their suppliers and accounted for between 35 and 40% of sales and rentals of new machines placed on the market over the period from 1981 to July 1985 . The attempts of both producers to develop and market a full range of models failed, however, because of the depressed market prices imposed by Japanese imports .
57 Secondly, with regard to imports of plain paper photocopiers supplied by Fuji Xerox from Japan, the Council and the Commission took the view that Rank Xerox had not produced evidence that it had been led to buy the machines on grounds of self-protection . According to the information obtained the decision was a management decision taken by the Xerox group of companies . However, the volume of those imports was minimal in relation to the entire range of plain paper photocopiers produced by Rank Xerox within the Community and in relation to the Community market as a whole ( 1 %), and the resale prices were the same as the prices of equivalent machines produced by Rank Xerox .
63 The question whether the interests of the Community call for Community intervention involves appraisal of complex economic situations . As the Court has held, in particular in its judgment of 7 May 1987 in Case 255/84 Nachi Fujikoshi v Council (( 1987 )) ECR 1861, paragraph 21, judicial review of such an appraisal must be limited 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 .
67 The submission alleging incorrect assessment of the interests of the Community must therefore be rejected .
Inadequate statement of the reasons for the rejection of the undertaking offered by Gestetner
69 The Court has consistently held ( see in particular the judgment of 26 June 1986 in Case 203/85 Nicolet Instrument (( 1986 )) ECR 2049, paragraph 10 ) 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 .