Opinion of Mr Advocate General Mancini
Mr President,
Members of the Court,
1. By five separate applications lodged in October and November 1984 under the second paragraph of Article 173 of the EEC Treaty, the following Japanese companies: NTN Toyo Bearing (Case 240/84), Nachi Fujikoshi (Case 255/84), Koyo Seiko (Case 256/84), Nippon Seiko KK (Case 258/84) and Minebea (Case 260/84), are seeking the annulment of Council Regulation (EEC) No 2089/84 of 19 July 1984 imposing a definitive anti-dumping duty on imports of certain ball-bearings originating in Japan and Singapore (Official Journal 1984, L 193, p. 1).
2. Against that background, I propose to begin by considering the salient features of the legislation applicable in the proceedings now before the Court. As is well known, the Community's anti-dumping legislation is based on Article VI of the General Agreement on Tariffs and Trade (GATT) and on the provisions laid down for its application (known as the Anti-Dumping Code). The principle on which that international system of rules is based is that dumping, by which products of one country are introduced into the commerce of another country at less than the normal value of the products, is to be condemned if it causes or threatens material injury to an established industry of that other country (Article VI (1)).
3. I now turn to the facts. A month or so after the Court had given judgment on 29 March 1979 in the cases referred to earlier (see section 1), the Federation of European Bearing Manufacturers' Associations (Febma), which brings together the major ball bearing producers in the Community, made a complaint to the Commission concerning fresh dumping practices on the part of Japanese undertakings on the common market in small bearings. The Commission's investigation culminated in Decision No 81/406/EEC of 4 June 1981 (Official Journal 1981, L 152, p. 44), which embodied an agreement on prices concluded between the parties. It was, however, no more than a truce. In March 1983 Febma furnished further evidence to the Commission about anti-competitive practices pursued by the Japanese undertakings and of the injury which those practices were causing to the Community industry. In the light of that evidence, the substantial growth of the market in small bearings and the information which it had itself gathered during the monitoring of the agreement reached in 1981, the Commission considered that there was sufficient evidence to justify a review of the decision it had adopted.
4. In the proceedings before the Court, NTN Toyo Bearing applied, pursuant to Article 83 of the Rules of Procedure, for the adoption of an interim measure suspending the collection of the contested duties until final judgment in the main action. The application was dismissed by order of the President of the Court made on 7 December 1984 in Case 240/84 R ([1984] ECR 4093).
5. The Council has raised an objection of inadmissibility as regards part of the primary claim put forward by Koyo Seiko, Nachi Fujikoshi, Nippon Seiko KK and NTN Toyo Bearing for the annulment of Regulation No 2089/84 in its entirety. The Council maintains that the applications submitted are admissible only in so far as they are directed against that part of the regulation which applies to each applicant's own exports. The applicants have not all reacted in the same way. NTN Toyo Bearing does not object to limiting its claim. Nachi Fujikoshi presents alternative claims along the lines envisaged by the Council. On the other hand, Koyo Seiko and Nippon Seiko KK firmly adhere to their application, relying in support thereof on the Court's judgment of 4 October 1983 in Case 191/82 Fediol v Commission [1983] ECR 2913.
6. The applications are therefore admissible. As far as the substance is concerned I would point out, first of all, that notwithstanding the huge quantity of detailed information furnished by the applicants, the submissions and arguments relied upon in support of the application for annulment are substantially similar. Allow me, therefore, in keeping with the scheme of my Opinion in which I intend to deal with all the applications, to organize that mass of information around four principal charges. I would add, however, that certain submissions relating to the Commission's procedure defy any attempt to classify them. I will therefore deal with those first.
7. That brings me to the principal charges. As I said earlier, they may be reduced to four: (a) the definitive anti-dumping duties imposed by Regulation No 2089/84 were calculated in an unlawful manner (paragraphs 11, 16 and 18 of the preamble to the regulation); (b) no reasons were given for the refusal to accept the applicants' offers to increase their export prices (paragraph 24); (c) during and after the investigation period, those prices were increased by some of the applicants on their own initiative, and that factor was not taken into account either (paragraph 25); and (d) the rates of duty-are out of all proportion to the injury actually suffered by the Community industry (paragraph 21).
8. In their second and third submissions the applicants complain that the Council and the Commission failed to take into account the undertakings offered by the applicants or the fact that some of them increased their prices during and after the investigation period.
9. The fourth and final charge is easy to summarize: NTN Toyo Bearing, Nachi Fujikoshi and Nippon Seiko KK contend that, in fixing the rates of duty, the Community institutions did not comply with Article 13 (3) of Regulation No 3017/79, thereby contravening the principle of proportionality.
10. Having regard to the foregoing considerations, I suggest that the Court should dismiss the applications submitted by NTN Toyo Bearing, Nachi Fujikoshi, Koyo Seiko, Nippon Seiko KK and Minebea against the Council of the European Communities. Under Article 69 (2) of the Rules of Procedure, the unsuccessful parties should be ordered to pay the costs, including the costs of the parties who intervened in support of the defendant.
1 Translated from the Italian.