Opinion of Mr Advocate General Darmon
Mr President,
Members of the Court,
1. This action, based on the second paragraph of Article 173 of the EEC Treaty, has been brought by Timex Corporation against Article 1 of Council Regulation (EEC) No 1882/82 of 12 July 1982 by which the Council imposed
2. In April 1979 Timex, considering that its position on the market and its sales had suffered considerably from the dumping of mechanical watches and movements imported from the Soviet Union, lodged a complaint with the Commission of the European Communities. Its complaint was rejected because it came from only one manufacturer in the United Kingdom. The complaint was then renewed in June 1980 by the British Clock and Watch Manufacturers' Association Limited on behalf of British and French manufacturers producing most of the mechanical wristwatches made in the Community.
3. The adoption of measures to protect Community industries against dumping is governed by Regulation No 3017/79 which lays down the conditions for and the rules governing the imposition of antidumping duties.
4. Timex considers that Council Regulation No 1882/82 was adopted in breach of certain procedural and substantive rules laid down by Regulation No 3017/79. It has therefore brought this action in which it asks the Court to annul Article 1 of Regulation No 1882/82 in so far as:
Admissibility
5. As the Council and the Commission point out, new light has been thrown on the question of admissibility, on which there has been extensive argument from the outset, by the judgments in the FEDIOL and Allied Corporation cases which the Court delivered during the proceedings in this case. The defendant institutions maintain their objection in the same form, however. The first task is therefore to consider the main points of law clarified by those two decisions and then draw from them the conclusions relevant to the question of admissibility in this case.
6. It may be deduced from the principles established in the FEDIOL judgment that, when Regulation No 3017/79 has been applied, complainants may apply to the Court for a review of the procedural guarantees laid down by that regulation and of the substantive question whether any manifest errors of assessment or misuse of power have been committed. This is a principle derived from the scheme of Regulation No 3017/79 and from the general principles of the Treaty. As such, it applies to all measures adopted by the institutions in antidumping and anti-subsidy proceedings and, in particular, to the regulations imposing duties.
7. Since the time-limit requirement is not at issue, it remains to determine whether Council Regulation No 1882/82 constitutes a decision, adopted in the form of a regulation, which is of direct and individual concern to the applicant.
8. Can that approach be adopted towards the question of the admissibility of this action brought by Timex?
Substance
9. Timex requests the Court to annul Council Regulation No 1882/82 on the ground that the definitive antidumping duty which it fixes for imports of watches of Soviet origin is insufficient and on the ground that it imposes no duty at all on watch movements.
A — Watches
10. In the first place, Timex alleges that the Commission acted in breach of its right to inspect information laid down in Article 7 (4) (a) of Regulation No 3017/79. Secondly, it challenges the assessment which led the institutions to choose Hong Kong as the market-economy country comparable to the Soviet Union for the purpose of determining the normal value of the like product (Article 2) (5).
1. Free access to information (breach of Article 7 (4) (a))
11. The applicant points out that the Commission refused to supply it with some of the information gathered from the Hong Kong undertakings selected as reference undertakings. The Commission thus acted in breach of its right to be heard during the course of the investigation which is guaranteed by Article 7 (4) (a). That provision provides that:
(a) Arguments of the parties
12. Timex contends that the Commission refused to supply it with information on, first, watch cases and dials made in Hong Kong and considered comparable to Soviet watches and, secondly, on the factors taken into account in the determination of the constructed value, more precisely the price of items assembled in Hong Kong.
(b) Consideration of the arguments
13. It is clear from those arguments of the parties that none of them disputes that the information used by the Commission in the investigation is relevant to the defence of [the complainant's] interests.
2. The choice of Hong Kong
14. By this second submission, the applicant seeks to demonstrate that the institutions committed a manifest error of assessment when determining the normal value of the product in question. In order to decide whether it is well founded, I shall first briefly examine the relevant provisions and then the essential facts of the dispute.
(a) The rules applicable
15. The dumping margin, on the basis of which antidumping duties are fixed, is generally the difference between the export price of the dumped product and the price of the like product as determined by the normal operation of the law of supply and demand in the country from which the dumped products are exported.
(b) Timex's arguments
16. As is clear from the preamble to Regulation No 84/82, the Commission chose as the basis for determining the normal value the constructed value of wristwatches manufactured in Hong Kong considered similar to the watches originating in the Soviet Union. That determination was made on the basis of the purchase price in Hong Kong of a selection of movements imported from France and the costs of assembling watches in Hong Kong to which it was necessary to add in particular the costs of the watch cases, dials and hands plus overheads and profit.
(c) Consideration of the arguments
17. I cannot agree with Timex's argument. It seems to me that the choice of Hong Kong is within the discretionary power of assessment accorded to the institutions by Regulation No 3017/79. I should point out in this regard that the Court exercises only limited review where the illegality alleged calls in question such a discretion. The only question which arises, therefore, is whether the institutions committed a manifest error of assessment in choosing Hong Kong as the reference country.
B — Watch movements
18. The applicant's last submission concerns the fact that Council Regulation No 1882/82 fixed no antidumping duties at all on imports of watch movements originating in the Soviet Union.
The extent of annulment
19. In conclusion, even if it is not vitiated by manifest error, Article 1 of Council Regulation No 1882/82 must be struck down by the Court under the first paragraph of Article 173 of the Treaty for infringing essential procedural requirements.
20. Consequently, I suggest that the Court should:
1 Translated from the French.
2 Official Journal, L 207 of 15 July 1982, p. 1.
3 Official Journal, L 339 of 31 December 1979, p. 1.
4 Official Journal, L 11 of 16 January 1982, p. 14.
5 Regulation No 84/82, thirty-first recital of the preamble.
6 Official Journal, L 125 of 7 May 1982, p. 1.
7 Regulation No 1882/82, Article 1 (2).
8 Article 2 A. (1) and (2).
9 Judgment of 4 October 1983 in Case 191/82 EEC Seed Crushers' and Oil Processors' Federation (FEDIOL) v Commission.
10 Judgment of 21 February 1984 in Joined Cases 239 and 275/82 Allied Corporation and Others v Commission.
11 Case 191/82, FEDIOL, paragraphs 28 to 30.
12 Joined Cases 239 and 275/82, paragraphs 11 and 12.
13 Article 4 (1) and Article 11 (1) of Regulation No 3017/79.
14 Case 307/81, Alusuisse Italia SpA v Council and Commission [1982] ECR 3463, paragraph 9 at p. 3472.
15 Regulation No 84/82, twenty-second recital of the preamble, and Regulation No 1882/82, twelfth recital of the preamble.
16 Regulation No 1882/82, final recital of the preamble.
17 Case 25/62 Plaiimann & Co. v Commission [1963] ECR 95, atp.107.
18 Judgment in Case 191/82 FEDIOL, paragraphs 25 to 31.
19 Article 7 (4) (a).
20 Article 7 (2) (b) and (3) (a).
21 Article 7 (4) (a).
22 Article 7 (5) and (6). My emphasis.
23 Article 8 (3).
24 Article 8 (2) (b).
25 Article 8 (4).
26 Council Regulation (EEC) No 2176/84 of 23 July 1984 (Official Journal L 201 of 30 July 1984, p. 1).
27 Article 2 (3) (b) (ii) of Regulation No 3017/79.
28 The costs, in the ordinary course of trade, of materials and manufacture plus overheads and profit (see Article 2 (3) (b) (ii) of Regulation No 3017/79).
29 Twelfth recital.
30 Article 13 (4) (a) of Regulation No 3017/79.