Nashua Corporation and others v Commission and Council of the European Communities.
Date: 1990-03-14
3 Nashua Corporation 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 the Japanese manufacturer Ricoh Company Limited ( hereinafter : "Ricoh ") and sells them under the Nashua brand name in the Community, through its subsidiary companies, and in many non-member countries .
8 As the Court held in its order of 11 November 1987 in Case 150/87 Nashua v Council and Commission (( 1987 )) ECR 4421, paragraph 6, the Commission' s role forms an integral part of the Council' s decision-making process . It follows from the provisions of Council Regulation No 2176/84 that the Commission is responsible for carrying out the necessary investigations and for deciding, on the basis of those investigations, whether to terminate the proceedings or to continue them by adopting provisional measures and by proposing that the Council adopt definitive measures . However, it is the Council which has the power to give a final decision . It is not obliged to make any decision at all if it disagrees with the Commission but may, if it wishes, adopt a decision on the basis of the latter' s proposals .
9 The rejection by the Commission of a proposed undertaking is not a measure having binding legal effects of such a kind as to affect the interests of the applicant, because the Commission may revoke its decision or the Council may decide not to introduce an anti-dumping duty . Such a rejection is an intermediate measure whose purpose is to prepare for the final decision, and is not therefore a measure which may be challenged .
10 As is clear from the judgments of 7 May 1987 in Case 240/84 Tokyo Bearing v Council (( 1987 )) ECR 1809, Case 255/84 Nachi Fujikoshi v Council (( 1987 )) ECR 1861 and Case 256/84 Koyo Seiko v Council (( 1987 )) ECR 1899, it is by challenging the regulation introducing definitive anti-dumping duties that traders can raise any irregularity associated with the rejection of their proposed undertakings .
14 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 ).
15 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 ISO (( 1979 )) ECR 1277, paragraph 15, and of 21 February 1984 Allied Corporation I, cited above, paragraph 15 ).
16 It is therefore necessary to determine whether, in this case, Nashua was concerned by the findings relating to the existence of the dumping complained of .
17 It was by reference to the particular features of Ricoh' s sales to OEMs, especially the differences in costs incurred by Ricoh 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 %.
18 Proceeding on the basis of the normal value thus constructed for sales by Ricoh 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 Ricoh' s own brand name, and that dumping margin, together with those ascertained for all Ricoh' s sales channels, were taken into account in calculating a weighted dumping margin on the basis of which the anti-dumping duty was set .
19 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 %.
20 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 Ricoh, Nashua is concerned by the findings relating to the existence of the dumping complained of, and the provisions of the contested regulation regarding Ricoh' s dumping practices are therefore of direct and individual concern to it .
33 It is apparent from the documents before the Court that the institutions took into consideration the difference between the costs and profits associated with sales to OEMs and the equivalent figures for other sales . Indeed, it was for that purpose, and because the institutions found it impossible to gauge that difference accurately, that in constructing the normal value they set the profit margin at 5% instead of its average rate, estimated at 14.6%, and applied that margin to sales under the manufacturers' own brand names .