Opinion of Mr Advocate General Van Gerven
Mr President,
Members of the Court,
I — Introduction
1. By Regulation (EEC) No 3019/86 of 30 September 1986 the Commission imposed a provisional anti-dumping duty on imports of standardized multi-phase electric motors originating in Bulgaria, Czechoslovakia, the German Democratic Republic, Hungary, Poland, Romania and the USSR. By Regulation (EEC) No 864/87 of 23 March 1987 the Council imposed a definitive antidumping duty on imports of the abovementioned electric motors originating in all the State-trading countries mentioned above but Romania. Both regulations were adopted under the regulation then in force, namely Council Regulation (EEC) No 2176/84 of 23 July 1984 on protection against dumped or subsidized imports from countries not members of the European Economic Community.
2. Three Community importers of electric motors (namely the Italian undertaking, Enital, the German undertaking, Neotype Techmashexport (hereinafter referred to as Neotype), and the French undertaking, Stanko France (hereinafter referred to as Stanko)) which are linked to the Soviet exporter, Energomachexport, challenge the legal validity of both the provisional regulation and the definitive regulation (Joined Cases C-304/86 and C-185/87, Joined Cases C-305/86 and C-160/87, and Joined Cases C-320/86 and C-188/87, [1990] ECR I-2939, I-2945 and I-3013). The Bulgarian exporter of electric motors, Electroimpex, and three Community importers of such products (namely the French undertaking, Sofbim, and the German undertaking, Elprom-Verkaufs-GmbH, which are linked to Electroimpex, and the Italian undertaking, Elprom-Parma, which entered into an exclusive sales agreement with Electroimpex but is not linked to the latter) contest the legal validity only of the definitive regulation (Case C-157/87). The trade association known as the Groupement des industries de matériels d'équipement électrique et de l'électronique industrielle associée (Association of electrical equipment and industrial electronic industies, hereinafter referred to as Gimelec) has intervened in all these cases in support of the Commission and the Council.
II — Admissibility
A — The admissibility of the applications brought against the provisional regulation
3. First, it is necessary to examine whether the proceedings brought by Enital, Neotype and Stanko against the Commission regulation imposing a provisional anti-dumping duty is admissible, in view of the fact that the Council subsequently imposed a definitive anti-dumping duty.
4. These observations by the parties were submitted before the Court gave judgment in the Technointorg and Brother Industries cases. In both cases the question arose whether, following the entry into force of the regulation imposing a definitive antidumping duty, the applicants still had an interest in challenging the regulation imposing a provisional anti-dumping duty. In both judgments the Court held that, having regard to the fact that the amounts secured by way of provisional duty had been collected in accordance with the scale of definitive anti-dumping duties in pursuance of the definitive regulation, the applicants were no longer entitled to rely on any legal effect arising from the provisional regulation.
B — The admissibility of the applications brought by the importers against the definitive regulation
5. Gimelec requests the Court to declare inadmissible the application brought against the definitive regulation by the applicants in their capacity as importers established in the Community (namely Enital, Neotype, Stanko, Sofbim, Elprom-Verkaufs-GmbH and Elprom-Parma). It observes that the finding of dumping in Regulation No 864/87 was made by comparing the normal value of electric motors with the export price to the Community and not with the price at which the imported product was resold by the importer to an independent buyer. In Gimelec's view, the importers in question are therefore in the same situation as the importer Demufert, whose action was declared inadmissible by the judgment given on 21 February 1984 in the Allied Corporation case.
6. The Council and the Commission do not share that view. Their reasoning is as follows. Although the Council in the present case did not take into account the sales prices charged by connected importers in order to establish the dumping margin it did do so in determining the anti-dumping duty. When it appears to the customs authorities that there is, as between the importer and the exporter or a third party, an association or a compensatory arrangement within the meaning of Article 2(8)(b) of Regulation No 2176/84 (see Article 1(4) of the definitive regulation), there is in fact a derogation from the general rule for determining the anti-dumping duty in the manner described in Article 1(3) of the definitive regulation. That rule is substituted by another rule whereby it is the price at which the product is resold to an independent buyer which serves as the basis for calculating the anti-dumping duty. According to the Council and the Commission, the important factor from the point of view of admissibility is that the Council did not merely impose that derogating provision on all connected importers but expressly declared it applicable to seven importers named in the regulation, amongst whom were Enital, Neotype, Stanko, Sofbim and Elprom-Verkaufs-GmbH. According to the Council and the Commission, those importers were therefore identified in the definitive regulation in the manner stated in the Court's case-law.
7. Since the Court may of its own motion raise the admissibility of an application, it is not necessary for me here to go into the question whether an intervener may itself raise an objection of inadmissibility which has not been raised by one of the parties in support of whose conclusions it intervened.
8. The foregoing does not apply to Elprom-Parma. That Italian importer of Bulgarian electric motors is not associated with a Bulgarian exporter or manufacturer. In its case the anti-dumping duty is not calculated on the basis of its resale price but in accordance with the net unit price, free-at-Community-frontier, not cleared through customs (see Article 1(3) of the definitive regulation). The fact that Elprom-Parma entered into an exclusive sales agreement with the exporter of Bulgarian electric motors does not change the situation. The Serines case, mentioned above, also involved an exclusive importer of electric motors originating, in that case, in the German Democratic Republic. The Court did not consider that factor to be relevant (paragraph 18). I therefore propose that the Court should declare the application brought by Elprom-Parma to be inadmissible, but should otherwise dismiss the objection of admissibility analysed above.
C — The admissibility of the application brought against the definitive regulation as a whole
9. Neotype and Stanko request the Court to annul the definitive regulation in so far as it relates to imports of electric motors from the Soviet Union. The action brought by Electroimpex and Enital is more broadly based. They request the annulment of the definitive regulation in its entirety.
III — The substance
General
10. Hereinafter I will successively examine the applicants' submissions against the definitive regulation as regards the determination of normal value (A), the comparison of normal value with the expon price (B), the assessment of injury (C), the determination of the anti-dumping duty (D), the application of the duty to spare parts (E) and the entry into force of the definitive regulation (F).
A — Normal value
Applicable provisions
11. The concept of dumping involves a comparison between two items. In principle those are: the export price of the relevant product and the normal value of a like product. In accordance with Article 2(3)(a) of Regulation No 2176/84 the normal value is understood to be:
Summary of the applicants' submissions
12. In the course of the investigation which led to the imposition of a definitive anti-dumping duty, the Commission chose — and the Council was in agreement — Yugoslavia as the market-economy third country. Thus, the weighted average of Yugoslav producers' domestic selling prices was taken in order definitively to establish the normal value of products originating in the State-trading countries in question (Regulation No 864/87, paragraph 8 of the preamble).
Assessment
(1) Do Yugoslavian electric motors constitute like products?
13. The answer to this question is, it seems to me, simple. The products referred to in the definitive regulation are standardized multi-phase electric motors, that is to say electric motors in respect of which there is a very advanced form of standardization at international level. Motors manufactured in accordance with those standardization norms may therefore be regarded as having great similarities from the point of view of physical characteristics and, as being mutually interchangeable from the users'point of view. It is not disputed that the Yugoslavian electric motors chosen for reference purposes were manufactured in accordance with the abovementioned standardization norms. That product is therefore a like product within the meaning of Article 2(12) of Regulation No 2176/84.
(2) Is the choice of Yugoslavia as the reference country erroneous?
(a) The statement of reasons
14. Neotype and Stanko take the view that the definitive regulation does not contain a sufficient statement of reasons for the choice of the reference country. They observe in particular that the regulation does not explain why countries which had been proposed as reference countries at stages prior to the imposition of the definitive anti-dumping duty (that is Brazil in the context of Commission Regulation (EEC) No 724/82 of 30 March 1982 and Sweden in the context of the provisional regulation), were no longer deemed appropriate as reference countries.
(b) Is Yugoslavia a market-economy country?
15. Neotype, Stanko and Electroimpex dispute that Yugoslavia can be regarded as a market-economy country.
(c) Do the Yugoslav prices constitute an appropriate and reasonable basis for comparison?
16. Even if Yugoslavia is deemed to be a country with a market economy, Neotype, Stanko and Electroimpex dispute the choice of Yugoslav prices as an appropriate and reasonable basis of comparison.
17. In choosing a reference country the institutions must, in my view, try to find a country where the prices of the like product are formed in circumstances which are as comparable as possible to those of the exporting country, provided that it is a market-economy country. The normal value determined on the basis of data relating to a reference country never provides a perfect basis for comparison. Each reference country presents specific problems. Article 2(5) of Regulation No 2176/84 therefore merely states that the choice of the reference country must be appropriate and not unreasonable.
18. Following the imposition of a provisional anti-dumping duty by way of Regulation No 3019/86 —in which the Commission chose Sweden as the reference country — the Commission received a complaint that imported electric motors originating in Yugoslavia were being dumped. The Commission then began an investigation which gave it the opportunity of becoming acquainted with the Yugoslav market and conducting on-the-spot inspections with three Yugoslav manufacturers and exporters of electric motors. Although the anti-dumping proceeding with regard to imports originating in Yugoslavia — for the purposes of which the normal value was determined on the basis of the prices charged on the Yugoslav market — was independent of the proceeding which led to the adoption of Regulation No 864/87, the subject of these proceedings, it nevertheless dealt with like products. In order to place all countries exporting to the Community and concerned by both proceedings on the same footing, the institutions discarded Sweden which had been used as the reference country in the context of the provisional regulation, and in the definitive regulation chose the prices charged on the Yugoslav market as the basis of comparison for the determination of the normal value.
19. Neotype submits that the Yugoslav market for electric motors is relatively small and that practically no imported motors are sold in it. Neotype also considers that the prices of electric motors sold on the Yugoslav market are not determined by the interplay of supply and demand and therefore do not afford an appropriate basis for comparison.
(3) Was the normal value correctly calculated?
(a) The rate of exchange of the Yugoslav dinar
20. Neotype's view that, instead of the official dinar rate, the buying rate as established by Western banks should have been used for the conversion of Yugoslav prices does not carry conviction.
21. Neotype does not reject the use of the official dinar rate in an anti-dumping proceeding relating to imports of electric motors originating in Yugoslavia. It is, however, of the opinion that, in the context of an anti-dumping proceeding in which Yugoslavia is not the exporting country but is the reference country for determining the normal value of products originating in the Soviet Union, it is no longer the official rate which should be used but the abovementioned bank rate.
(b) Yugoslav inflation
22. Neotype, Stanko and Electroimpex further contend that the normal value established by the institutions cannot be used as a basis of comparison because it does not take account of the high Yugoslav inflation rate which, during the period of the investigation, was running at about 80% per annum.
(c) The calculation on the basis of the constructed value
23. Stanko contends that the normal value ought to have been calculated on the basis of the constructed value taking account of the production costs borne by the Yugoslav manufacturers in accordance with Article 2(5)(b) of Regulation No 2176/84.
B — Comparison of the normal value with the export price
Applicable provisions
24. Under the terms of Regulation No 2176/84 the export price and the normal value of the dumped product must be on a comparable basis as regards physical characteristics of the product, quantities and conditions and terms of sale (Article 2(9)). If the export price and the normal value are not comparable as regards those factors, due allowance is to be made in each case, on its merits, for differences affecting price comparability. Where an interested party claims such an allowance, it must prove that its claim is justified (Article 2(10)).
Summary of the applicants' submissions
25. Enital, Stanko and Electroimpex criticize the Council and the Commission for not taking account of numerous differences existing between the various electric motors.
Assessment
26. Under the terms of Article 2(10) of Regulation No 2176/84 the parties who wish a correction to be made on account of differences in physical characteristics must request the correction during the investigation procedure, and must prove that such differences affect price comparability. The differences indicated by Enital were already raised in the investigation preceding the adoption of the definitive regulation (see 12th recital, first paragraph, second indent, of Regulation No 864/87). The Commission thereupon conducted an investigation. It appeared therefrom that the use of materials of different origins and the degree of enhancement by the various producers of the active material content of their motors did not result in differences in physical characteristics, nor in other differences affecting price comparability. With regard to differences in physical characteristics, however, an exception was made in respect of ball-bearings (see 12th recital, second and third paragraphs, of Regulation No 864/87).
27. The differences raised by Stanko cannot support the assertion that the institutions compared the export price and the normal value on an incorrect basis. First of all, it should be observed that these differences have been indicated in very general terms and are not supported by evidence. Moreover, contrary to Stanko's assertions, the Council did in fact take account of differences which may be regarded as differences in conditions of sale, in particular as regards warranties, packing and transport (see the 11th recital of Regulation No 864/87). As regards most of the other differences pointed to by Stanko, it should be observed that they do not fall within any of the categories of factors mentioned in Article 2(9) and (10) of Regulation No 2176/84. In the abovementioned judgment in the Tecbnointorg case (paragraph 34) the Court stated that allowances may be made only on the basis of the factors mentioned in paragraphs 9 and 10 of that article (differences in physical characteristics, quantities, conditions and terms of sale, and import charges and indirect taxes). However, differences such as production rationalization, wage costs, reputation of the imported goods and efficiency of the after-sales service are not included amongst those factors. Finally, the Council observes in its defence that, in determining the amount of anti-dumping duty, it took into consideration a very large average profit margin for importers (40% of the import price). In doing so, the Council enabled importers to absorb on a flat-rate basis the costs arising from the adaptation of imported electric motors to the norms in force on the Community market. Such a large profit margin must also have enabled importers to cover the costs involved in establishing and maintaining considerable stocks.
28. As regards, finally, the differences raised by Electroimpex between Bulgarian motors and motors produced in the Community, it is sufficient to observe that such differences are not referred to in Article 2(9) and (10) of Regulation No 2176/84. Those provisions deal with the adjustments necessary in order to enable there to be a correct comparison between the export price and the normal value of the dumped product. Differences as between the dumped product and the product manufactured in the Community are not covered by those provisions. Should such differences exist Electroimpex could assert that the imported product is not a like product with the product produced in the Community and that it could not therefore cause injury to Community products. However, I have already pointed out (at paragraph 13 above) that the definitive regulation concerns standardized electric motors which, irrespective of their origin, are like products within the meaning of Article 2(12) of Regulation No 2176/84. It will become apparent from what I am going to set out below (at paragraphs 31 to 36) that the Council was entitled to find that dumped imports of electric motors originating from the State-trading countries in question caused significant injury to Community producers. In those circumstances any submission in that regard by Electroimpex is also unfounded.
C — Injury
Applicable provisions
29. Under Article 2(1) of Regulation No 2176/84 it is not sufficient that in relation to a given product dumping is taking place in order for an anti-dumping duty to be imposed. The importation into the Community of the dumped product must also cause injury. Article 4 of the abovementioned regulation defines what is to be understood by injury. It must be a significant injury (or the threat of injury) to the detriment of an established Community industry. The article sums up the factors to which an examination of injury is to have regard and states that no one or several of those factors are necessarily decisive in making the assessment.
Summary of the applicants' submissions
30. All the applicants dispute the manner in which the Council made its determination of injury: (1) the Council ought not to have established injury on the basis of global imports into the Community of electric motors from the relevant State-trading countries but ought to have established injury for each exporting country separately (Stanko and Electroimpex); (2) the Council ought not to have calculated the market share of State-trading countries on the basis of imported products but should have taken the actual sales in the Community as the criterion (Neotype); (3) there can be no question of injury in view of the fact that the number of electric motors produced in the Community went up during the reference period and the market share of the State-trading countries concerned went down during the same period (all applicants). With regard to the period 1977 to 1981, imports of electric motors originating in the countries concerned even went down in absolute terms (Neotype); (4) in so far as there can be said to be injury there is no causal link between the injury and the dumped imports of electric motors from the countries concerned. The injury, it is alleged, is attributable to other factors, inter alia to an increase in intra-Community competition under the pressure of Italian producers first and foremost (Enital and Stanko). On that point the definitive regulation does not contain an adequate statement of reasons (Enital).
Assessment
(1) Is the cumulative calculation of injury incorrect?
31. Stanko and Electroimpex consider that the Council acted incorrectly in determining injury on the basis of the consequences of global dumped imports from the relevant State-trading countries.
(2) Ought the injury to have been determined on the basis of actual sales in the Community?
32. Neotype alleges that the Council imposed the definitive anti-dumping duty on the basis of erroneous figures as to the market share of electric motors originating in State-trading countries. That market share was calculated on the basis of import figures whereas, according to Neotype, the figures for actual sales in the Community ought to have formed the basis for the calculation. There was a difference between these two figures having regard above all to the necessity on the part of importers to establish major stocks.
(3) Was a determination of injury possible in view of the development of sales and production figures for electric motors in the Community?
33. All the applicants are of the opinion that it was not possible for the Council to make a determination of injury, having regard to the development of production and sales figures during the reference period (1982 to 1985). They point out that, on the one hand, EEC production of electric motors went up in absolute terms from 907000 in 1982 to 990000 in 1985 and that, on the other hand, the market share of the relevant State-trading countries fell (according to paragraph 31 of the definitive regulation, from 23% in 1982 to 19.6% in 1985). Neotype further points out that, when the figures relating to a longer period are analysed, imports of electric motors from State-trading countries fell even in absolute terms. In particular imports in 1985 represent only 75% of imports in the years 1979 to 1981.
34. On the last point it must be stated that the anti-dumping proceeding which led to Regulation No 864/87 was opened in order to examine whether the undertakings to increase prices given by exporters from State-trading countries and accepted by the Council and the Commission in the context of a previous proceeding were sufficient in order to eliminate the injurious effects of the dumped imports. The figures for the period 1981 to 1982 were therefore already taken into account in the context of that earlier anti-dumping proceeding. In regard to the proceeding under discussion in this case it was important to study the trend in the figures after 1982 in order to ascertain whether the injury found to exist in the previous proceeding had been eliminated.
35. In their submission on injury the applicants highlighted two factors (the increase in Community production of electric motors and the improvement in the market share of Community producers). From that they infer that there was no basis on which the Council could make a finding of injury. However, it appears from recitals 17 to 32 of the definitive regulation, which reflect paragraphs 18 to 33 of the provisional regulation, that the Council made its determination of injury on the basis of various factors which are all mentioned expressly in Article 4(2) of Regulation No 2176/84, namely:
(4) Is the injury the result of factors other than imports from State-trading countries?
36. Stanko and Enital contend finally that the Council has not proven that the injury suffered by the Community is a result of imports originating in State-trading countries. In their view, the operating losses of many Community producers are attributable to intra-Community competition as a result of pressure from Italian producers.
D — The determination of the anti-dumping duty
Applicable provisions
37. Article l(4)(a) of the definitive regulation contains a special provision for determining the anti-dumping duty where it appears that the importer and the exporter are associated undertakings:
Summary of Neotype's submissions
38. Neotype contends that the manner in which the Council determined the antidumping duty in the case of associated importers conflicts in two respects with Community law. First, Regulation No 2176/84 does not give the Council the power to impose an anti-dumping duty which varies according to the price at which the imported product is resold for the first time to an independent buyer. Secondly, the method adopted by the Council is said to be too inaccurate for the anti-dumping duty to be determined with any certainty. When the customs value of imported goods cannot be determined in accordance with Article 6 of Regulation No 1224/80 (that is if within 90 days of importation neither the imported goods nor identical nor similar imported goods are sold), the customs value must, in accordance with Article 2(3) of that regulation, be determined using reasonable means. On account of its general nature the latter criterion cannot be used as a basis for fixing an anti-dumping duty.
Assessment
39. Neither Regulation No 2176/84 nor the GATT dumping provisions stipulate the form to be taken by anti-dumping measures. Article 13(8) provides that anti-dumping duties are to be collected by the Member States
40. In its second submission Neotype challenges the secondary criterion laid down by the Council in Article 1(4) of the definitive regulation for cases where the customs value cannot be determined in accordance with Article 6 of Regulation No 1224/80. That submission cannot by itself entail the annulment of the whole provision. Moreover, it is based on the purely hypothetical situation in which the customs authorities, when required to apply that secondary criterion in accordance with Anicie 2(3) of Regulation No 1224/80, do so in an arbitrary manner which leads to unacceptable consequences. Interpreted in that way, the submission is not appropriate to an application for the annulment of a regulation. Should such a situation in fact occur, the injured importers must apply to the competent national courts.
E — The application of the anti-dumping duty to spare parts
41. Enital considers that the definitive regulation conflicts with Article 2(12) of Regulation No 2176/84, in so far as it imposed an anti-dumping duty on spare parts for electric motors, although spare parts cannot be deemed to be like products in relation to electric motors.
F — The entry into force of the definitive regulation
42. Article 4 of the definitive regulation provides that the regulation is to enter into force on the day following its publication in the Official Journal of the European Communities. Enital points out that the Council gave no reason for the immediate entry into force of the regulation and is of the opinion that the regulation should be annulled on that ground. Enital also takes the view that the entry into force of the regulation on the day following its publication in the Official Journal caused the anti-dumping duty to be imposed with retroactive effect, which is in conflict with the basic regulation.
43. In accordance with the first paragraph of Article 191 of the EEC Treaty, regulations enter into force on the date specified in them or, in the absence thereof, on the 20th day following their publication. In its judgment of 13 December 1967 in the Neumann case — a judgment on which the applicant places reliance in connection with its first submission — the Court held :
44. Enital's submission that the entry into force of the definitive regulation on the day following its publication in the Official Journal had the effect of imposing the definitive anti-dumping duty with retroactive effect, is difficult to comprehend. In fact it is only intelligible if the applicant can show that the regulation was published in an issue of the Official Journal which, although dated 27 March 1987, was not distributed until later and that the provisions of the regulation had nevertheless been applied with effect from 28 March 1987. The applicant makes no such allegation. For its part the Council obtained confirmation from the Office for Official Publications of the European Communities that the issue dated 27 March 1987 was in fact distributed on that same day.
IV — General conclusions
45. On the basis of the foregoing I propose that the Court should:
1 Original language: Dutch.
2 Commission Regulation (EEC) No 3019/86 of 30 September 1986 imposing a provisional anti-dumping duty on imports of standardized multi-phase electric motors having an output of more than 0.75 kW but not more than 75 kW, originating in Bulgaria, Czechoslovakia, the German Democratic Republic, Hungary, Poland, Romania and the USSR (OJ 1986 L 280, p. 68). This regulation will be referred to in this Opinion as the provisional regulation and the electric motors specified therein will be referred to simply as electric motors.
3 Council Regulation (EEC) No 864/87 of 23 March 1987 imposing a definitive anti-dumping duty on imports of standardized multi-phase electric motors having an output of more than 0.75 kW but not more than 75 kW, originating in Bulgaria, Czechoslovakia, the German Democratic Republic, Hungary, Poland and the USSR, and definitively collecting the amounts secured as provisional duties (OJ 1987 L 83, p. 1). This regulation will be referred to in this Opinion as the definitive regulation.
4 Council Regulation (EEC) No 2176/84 of 23 July 1984 on protection against dumped or subsidized imports from countries not members of the European Economic Community (OJ 1984 L 201, p. 1). This regulation has since been superseded by Council Regulation (EEC) No 2423/88 of 11 July 1988 (OJ 1988 L 209, p. 1).
5 Sec point III.l.(a) of the Report for the Hearing in Joined Cases C-305/86 and C-160/87 in which the opinions of the Commission, Gimelec and Neotype on this point are reproduced.
6 Judgment in Case 294/86 Tecbnointorg v Commission and Council[1988] ECR 6077.
7 Judgment in Case 56/85 Brother Industries Ltd v Council [1988] ECR 5655.
8 Judgment in Joined Casts 239/82 and 275/82 Allied Corporation [1984] ECR 1005.
9 See point III. 1 of the Report for the Hearing in Cases C-304/86 and C-185/87, point IV.2.(a) of the Report for the Hearing in Cases C-305/86 and C-160/87 and point IV.3.(a) of the Report for the Hearing in Cases C-320/86 and C-188/87.
10 Order of 8 July 1987 in Case 279/86 Sentici [1987] ECR 3109
11 Judgment in Joined Cases 277/85 and 300/85 Canon Inc anf Others v Council [1988] ECR 5731 Paragraph 8 of the judgment reads: Importers associated with exporters may challenge a regulation imposing an anti-dumping duty, particularly where, as in the present cases, the export price has been calculated on the basis of their selling prices on the Community market (emphasis added).
12 Council Regulation (EEC) No 1224/80 of 28 May 1980 on the valuation of goods for customs purposes (OJ 1980 L 134, p. 1).
13 For a further discussion of the manner in which antidumping duty is to be calculated in accordance with the definitive regulation, see below, paragraphs 37 to 40.
14 See the judgments of 7 May 1987 in Case 240/84 NTN Toyo v Council [1987] ECR 1809, Case 255/84 Nachi Fujikoshi v Council [1987] ECR 1861, Case 256/84 Koyo Seiko v Council [1987] ECR 1899 and in Case 258/84 Nippon Seiko v Council [1987] ECR 1923.
15 See paragraphs 15 and 16 of the preamble to the definitive regulation.
16 See paragraph 39 of the preamble to the definitive regulation.
17 See paragraph III.2.(d)(i) of the Report for the Hearing in Cases C-304/86 and C-185/87.
18 See paragraph III.2.(b)(i) of the Repon for the Hearing in Cases C-305/86 and C-160/87.
19 See paragraph III.2.(b)(aa)(¡) and (ii) of the Report for the Hearing in Cases C-320/86 and C-188/87.
20 See paragraph III.2.(b) of the Report for the Hearing in Case C-157/87.
21 Commission Regulation (EEC) No 724/82 of 30 March 1982 imposing a provisional anti-dumping duty on imports of standardized multi-phase electric motors having an output of more than 0 75 kW but not more than 75 kW, originating in Bulgaria, Czechoslovakia, the German Democratic Republic, Poland, Romania and the Soviet Union and closing the procedure with regard to imports of those products originating in Hungary (OJ 1982 L 85, p. 9).
22 See inter aha the abovementioned judgment in the Nachi Fujikoihi case, paragraph 39.
23 See P. Vandoren: Mise en œuvre de la politique anti-dumping de la CEE contre les importations en provenance des pays à commerce d'État, Revue du marché commun, No 316, April 1988, p. 198 et seq.
24 Council Regulation (EEC) No 1765/82 of 30 June 1982 laying down Community rules for exports from State-trading countries (OJ 1982 L 195, p. 1).
25 Council Regulation (EEC) No 1766/82 of 30 June 1982 laying down Community rules on exports from the People's Republic of China (OJ 1982 L 195, p. 21).
26 Yugoslavia acceded to GATT in 1966. In contrast to the protocol on the accession of Poland, Romania and Hungary, the Yugoslav protocol contains no derogations from GATT principles.
27 Note 2 to Article VI of the GATT provides as follows: It is recognized that, in the case of imports from a country which has a complete or substantially complete monopoly of its trade and where all domestic prices are fixed by the State, special difficulties may exist in determining price comparability for the purposes of paragraph 1, andin such cases importing contracting parties may find it necessary to take into account the possibility that a strict comparison with domestic prices in such a country may not always be appropriate.
28 See in particular Annex 25 where it is stated that the Yugoslav economic system differs on essential points (no central State planning, independence of undertakings inter alia with regard to price formation, no monopoly with regard to external trade) from East European countries with a centrally planned economic system.
29 Set judgment in Case 191/82 Fedsol v Commission [1983] ECR 2913. paragraph 30, and mv Opinion in Case 70/87 Ftdiolv Commission [1989] ECR 1781. paragraph 19
30 See in this connection recitals 2 and 8 of Regulation No 864/87.
31 Article 2(13)(a) of Regulation (EEC) No 2176/84 provides: Dumping margin means the amount by which the normal value exceeds the export price.
32 See the 1989 annual report of the IMF on exchange arrangements and exchange restrictions, in which the exchange arrangement with regard to Yugoslavia (situation as at 31 December 1988) is described as follows: The currency of Yugoslavia is the Yugoslav dinar. The authorities do not maintain the exchange rate of the dinar within announced margins. All transactions, other than those effected under the procedures set forth for certain countries with which Yugoslavia has bilateral payments agreements ... take place at an exchange rate adjusted from time to time by the authorities.
33 Sec paragraph III.2.(d)(i) of the Report for the Hearing in Joined Cases C-304/86 and C-185/87.
34 Sec paragraph III.2.(b)(aa)(iii) of the Report for the Hearing in Joined Cases C-320/86 and C-188/87.
35 See paragraph 111.2(c) of the Report for the Hearing in Case C-157/87
36 In Enital's observations it is stated that the components used in Yugoslavia are of poorer quality. I assume that this is an error and that in fact higher quality is meant. If not, that argument would not fit in with the intention of those observations, which is to seek to reduce the dumping margin determined by the Council.
37 See paragraph III.2.(e) of the Report for the Hearing in Joined Cases C-304/86 and C-185/87, paragraph III.2.(b)(ii) of the Report for the Hearing in Joined Cases C-305/86 and C-160/87, paragraph III.2.(b)(aa)(iv) of the Report for the Hearing in Joined Cases C-320/86 and C-188/87 and paragraph III.2.(d) of the Report for the Hearing in Case C-157/87.
38 See Commission Regulation (EEC) No 724/82 of 30 March 1982 (OJ 1982 L 85, p. 9), Council Regulation (EEC) No 2075/82 of 28 July 1982 (OJ 1982 L 220, p. 36) and Commission Decision 84/189/EEC of 2 April 1984 (OJ 1984 L 95, p. 28).
39 See recital 25 of the provisional regulation.
40 See recitals 23 and 24 of the definitive regulation.
41 See recital 26 of the definitive regulation.
42 See paragraphs 29 and 31 of the definitive regulation.
43 See paragraph IH.2.(d)(ii) of the Report for lhe Hearing in Joined Cases C-304/86 and C-185/87.
44 Order in Case 304/86 R Enital v Council and Commission [1987] ECR 267.
45 Annex in the version attached to Council Regulation (EEC) No 3618/86 of 24 November 1986 (OJ 1986 L 345, p. 1).
46 Nimexe annex in the version established by Commission Regulation (EEC) No 3840/86 of 16 December 1986 (OJ 1986 L 368, p. 1).
47 See paragraph III.2.(b) and (c) of the Report for the Hearing in Joined Cases C-304/86 and C-185/87.
48 Judgment in Case 17/67 Neumann v Haitptzollamt Hof [1967] ECR441,at p. 456.
49 Council Regulation (EEC) No 254/87 of 26 January 1987 extending the provisional anti-dumping duty on imports of standardized multi-phase electric motors having an output of more than 0.75 kW but not more than 75 kW, originating in Bulgaria, Czechoslovakia, the German Democratic Republic, Hungary, Poland, Romania and the Soviet Union (OJ 1987 L 26, p. 1).
50 See judgment in Case 88/87 Suiker Export [1977] ECR 709, paragraphs 13 to 19