NTN Toyo Bearing Company Limited and others v Council of the European Communities.
Date: 1987-05-07
5 THE COURT HAS CONSISTENTLY HELD, IN PARTICULAR IN ITS JUDGMENT OF 21 FEBRUARY 1984 IN JOINED CASES 239 AND 275/82 ALLIED CORPORATION AND OTHERS V COMMISSION (( 1984 )) ECR 1005, THAT MEASURES IMPOSING ANTI-DUMPING DUTIES, ADOPTED PURSUANT TO COUNCIL REGULATION ( EEC ) NO 3017/79 OF 20 DECEMBER 1979 ON PROTECTION AGAINST DUMPED OR SUBSIDIZED IMPORTS FROM COUNTRIES NOT MEMBERS OF THE EUROPEAN ECONOMIC COMMUNITY ( OFFICIAL JOURNAL 1979, L 339, P . 1 ), ARE LIABLE TO BE OF DIRECT AND INDIVIDUAL CONCERN, WITHIN THE MEANING OF THE SECOND PARAGRAPH OF ARTICLE 173 OF THE TREATY, TO THOSE 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 . THE COUNCIL DOES NOT DENY THAT THE CONTESTED REGULATION IS LIABLE TO BE OF DIRECT AND INDIVIDUAL CONCERN TO NTN, WHICH IS EXPRESSLY NAMED THEREIN .
6
HOWEVER, IT SHOULD BE NOTED THAT THE CONTESTED REGULATION DOES NOT LAY DOWN GENERAL RULES WHICH APPLY TO A WHOLE GROUP OF TRADERS WITHOUT DISTINGUISHING BETWEEN THEM BUT IMPOSES DIFFERENT ANTI-DUMPING DUTIES ON A SERIES OF MANUFACTURERS OR EXPORTERS OF SMALL BALL-BEARINGS ESTABLISHED IN JAPAN AND SINGAPORE WHO ARE EXPRESSLY NAMED, AND ALSO ON OTHER UNDERTAKINGS WHICH ARE NOT NAMED BUT WHICH PURSUE THE SAME ACTIVITIES IN THOSE SAME COUNTRIES . UNDER THOSE CIRCUMSTANCES IT MUST BE CONCLUDED THAT NTN IS INDIVIDUALLY CONCERNED ONLY BY THOSE PROVISIONS OF THE CONTESTED REGULATION WHICH IMPOSE ON IT A SPECIFIC ANTI-DUMPING DUTY AND DETERMINE THE AMOUNT THEREOF, AND NOT BY THOSE PROVISIONS WHICH IMPOSE ANTI-DUMPING DUTIES ON OTHER UNDERTAKINGS .
7 IT FOLLOWS FROM THE FOREGOING THAT THE OBJECTION OF INADMISSIBILITY RAISED BY THE COUNCIL MUST BE UPHELD AND THE APPLICATION DISMISSED AS INADMISSIBLE IN SO FAR AS IT SEEKS A DECLARATION THAT REGULATION NO 2089/84 IS VOID IN ITS ENTIRETY . IT IS, HOWEVER, NECESSARY TO DECLARE THE APPLICATION ADMISSIBLE AND TO EXAMINE ITS MERITS IN SO FAR AS IT SEEKS A DECLARATION THAT THOSE PROVISIONS OF THE CONTESTED REGULATION WHICH ARE OF CONCERN EXCLUSIVELY TO NTN ARE VOID .
SUBSTANCE
13 IT MUST BE STATED IN THE FIRST PLACE THAT THE PROCEDURE FOR CALCULATING THE NORMAL VALUE IS LAID DOWN IN ARTICLE 2*(3 ) TO ( 7 ) OF REGULATION NO 3017/79, AND THE PROCEDURE FOR CALCULATING THE EXPORT PRICE IS LAID DOWN IN ARTICLE 2*(8 ) THEREOF . THOSE PROVISIONS SEPARATELY SPECIFY SEVERAL DIFFERENT METHODS FOR CALCULATING EACH OF THE TERMS OF THE COMPARISON .
19 IT SHOULD BE NOTED IN THAT REGARD THAT THE CHOICE BETWEEN THE DIFFERENT METHODS OF CALCULATION SPECIFIED IN ARTICLE 2*(13)*(B ) OF REGULATION NO 3017/79 REQUIRES AN APPRAISAL OF COMPLEX ECONOMIC SITUATIONS . THE COURT MUST THEREFORE, AS IT HAS HELD IN PARTICULAR IN ITS JUDGMENT OF 11 JULY 1985 IN CASE 42/84 REMIA AND OTHERS V COMMISSION (( 1985 )) ECR 2545, LIMIT ITS REVIEW OF SUCH AN APPRAISAL 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 .