Opinion of Mr Advocate General Van Gerven delivered on 8 November 1989

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 This regulation has since been superseded by Council Regulation (EEC) No 2423/88 of 11 July 1988 (OJ 1988 L 209, p. 1).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