Opinion of Mr Advocate General Mischo
Mr President,
Members of the Court,
1. The submissions made by Minolta Camera Co. Ltd (hereinafter referred to as Minolta) alleging illegality of Council Regulation (EEC) No 535/87 of 23 February 1987 imposing a definitive antidumping duty on imports of plain paper photocopiers originating in Japan (hereinafter referred to as the contested regulation or the definitive regulation) are in some respects different or indeed new by comparison with those relied on by the other Japanese manufacturers of plain paper photocopiers (hereinafter referred to as PPCs) in their respective applications. There are, on the one hand, submissions concerning miscalculation of the dumping margin and unreasonableness of the margin of profit included in the constructed normal value, which only Minolta has put forward. On the other hand, there is the submission concerning the Council's refusal to make, when comparing the normal value and the export price, certain adjustments to take account of differences in conditions of sale, a submission which, although based on arguments similar to those already put forward in other cases, concerns types of expenses which differ to some extent. Finally there are the submissions based on the inclusion of selling, administrative and other general expenses of the sales subsidiaries (hereinafter referred to as SGA expenses) and the amount of certain discounts (known as trade-in discounts) granted by those subsidiaries in the constructed normal value which, although put forward in other cases as well, are supported by arguments which are in many respects original.
2. I shall give details of the various submissions and arguments only to the extent necessary for my reasoning to be followed and for the rest I refer to the Report for the Hearing.
A — Determination of normal value
3. 1. In its first submission Minolta claims that by including the SGA expenses of its sales subsidiaries in Japan in the constructed normal value, the Council did not make a valid comparison between the normal value and the export price since it did not compare them at the same level of trade. It maintains in particular that the Council thus included in the constructed normal value expenses corresponding to a stage beyond the ex- factory stage, which in its view, is the stage at which the export price was calculated. Minolta considers that procedure to be contrary to Articles 2(3)(b)(ii) and 2(9) of the basic regulation and to the relevant provisions of GATT and of the 1979 Antidumping Code.
4. As far as the basic regulation is concerned, it must be observed that the Court has already rejected arguments similar to those put forward by Minolta in its judgments of 5 October 1988 in the electronic typewriter (hereinafter referred to as ETW) cases. In paragraph 19 of its judgment in Joined Cases 277 and 300/85 Canon v Council [1988] ECR 5731, the Court stated that
5. In the present case, the normal value and the export price were both established on the basis of the first sale to an independent purchaser. The normal value was constructed not only on the basis of the costs incurred by Minolta but also on the basis of those incurred by its sales subsidiaries. As regards the export price, it was determined in accordance with Article 2(8)(b) of the basic regulation, on the basis of the price at which the imported product is first resold to an independent buyer. The allegation that Article 2(3)(b)(ii) was infringed is therefore unfounded. It is true that in Canon v Council, cited above, the Court referred expressly to Article 2(3)(a). I consider however that what applies to Article 2(3)(a) applies equally to Article 2(3)(b)(ii), since construction of the normal value is intended to make up for the absence of a normal value determined in accordance with Article 2(3)(a) and (b)(i), and the Court observed in paragraph 26 of the same judgment that
6. It should also be noted that in its judgment of the same date in TEC v Council (Joined Cases 260/85 and 106/86, [1988] ECR 5855), the Court also applied to construction of the normal value on the basis of Article 2(3)(b)(ii) the theory of the single economic entity, which seeks to make certain that costs which are manifestly included in the selling price of a product where the sale is made by a sales department forming part of the manufacturer's organization are no longer included where the same selling activity is carried out by a company which although legally distinct is financially controlled by the manufacturer (see paragraphs 25 to 29). Reference merely to the inclusion of SGA expenses of sales subsidiaries in the constructed normal value is not therefore a sufficient basis for showing that the amount added to the production costs in respect of SGA expenses is not reasonable within the meaning of Article 2(3)(b)(ii) of the basic regulation.
7. It is apparent inter alia from paragraph 30 of the TEC judgment that where production and sale activities are divided within a group formed by companies which are legally distinct but are economically linked — the kind of arrangement also set up by Minolta — that
8. It is true that Minolta is essentially arguing for the costs incurred by its Japanese sales subsidiaries not to be included in the normal value on the ground that those incurred by its subsidiaries in the Community were deducted from the price charged to the first independent purchaser when the export price was constructed. Moreover, it was the different treatment thus accorded to its subsidiaries' expenses, depending on whether they are established in Japan or in the Community, which prompted Minolta to conclude that whilst the export price is established at the ex-factory level, that could not have been possible in the case of the normal value.
9. I confess that at first sight one might be tempted to share the doubts and queries raised by the applicant. It would be easy to classify as ex-factory, as the Court did, the stage of sales to the first independent purchaser, specifically in the concern to ensure that economic reality prevails over legal fabrications. One might even take the view that in constructing the normal value by including in it all the SGA expenses involved in the sale to the first independent purchaser and by taking as a basis the price paid by the first independent purchaser in order to construct the export price, the same level of trade is taken as the reference point on both occasions. However, it must be stated that by treating differently in each case the costs incurred by the subsidiaries, that is to say by adding to them the production costs when constructing the normal value and deducting them from the price paid by the first independent purchaser when constructing the export price, the stage of the first sale to an independent purchaser is, in the first place, the conclusion of the operation but, in the second, the starting point.
10. The fact nevertheless remains that the export price thus determined includes the costs of the export department of the manufacturer which correspond, as regards the level of trade, to the expenses of the company operating on the domestic market.
11. Furthermore, in paragraph 31 of its judgment in TEC v Council, cited earlier, the Court categorically rejected the argument, in relation to construction of the normal value, that SGA expenses should be treated in the same way when the normal value is constructed and the export price is constructed, simply referring to its judgments of 7 May 1987 in the ballbearings cases (Cases 240, 255, 256, 258 and 260/84, [1987] ECR 1809, 1861, 1899, 1923, 1975), according to which
12. As regards the provisions of GATT and the Antidumping Code relied on by the applicant, I consider it unnecessary to express any view regarding Minolta's theory that they may be relied on in a direct action brought under Article 173 of the EEC Treaty without being directly applicable within the meaning of the judgment in International Fruit Company or regarding their direct applicability in the event of that theory having no basis. Article 2(3) and (9) of the basic regulation, under which the contested regulation was adopted, seem to me in any event to be wholly in conformity with the corresponding provisions of GATT and the Antidumping Code. Both Article VI(1) of GATT and Article 2(1) and (4) of the Antidumping Code refer, like Article 2(3) of the basic regulation, to the comparable price in the ordinary course of trade for the like product destined for consumption in the exporting country, or else the cost of production in the country of origin plus a reasonable amount (or addition) for administrative, selling and any other costs and for profits. As regards Article 2(6) of the Antidumping Code, it merely foreshadowed Article 2(9) of the basic regulation where it provides that
13. It is true that both Article VI(1) of GATT and Article 2(6) of the Anti-Dumping Code add that
14. Both thus reflect the amount received by the manufacturer/exporter. In that connection, the report of the group of experts on antidumping duties and countervailing charges published by GATT in 1961, to which the applicant referred on several occasions, is very revealing where it states that
15. I conclude from the foregoing that the contested regulation likewise does not infringe Article VI(1) of GATT or Article 2 of the Antidumping Code any more than it infringes Article 2(3) and (9) of the basic regulation, by which the former provision is transposed into the Community legal order.
16. As regards, finally, the arguments based on misuse of power and breach of the principle of the protection of legitimate expectations, the principle of proportionality and the principle of equality, I consider that they cannot be disassociated from those considered earlier. They are all based on the premise that, by including the SGA expenses of Minolta's sales subsidiaries in the constructed normal value, the Council made a comparison not in conformity with the requirements of the basic regulation, GATT and the Antidumping Code. In the same way as the submissions alleging infringement of those provisions, they must therefore be dismissed.
17. 2. The applicant's second submission relates to the inclusion in the normal value constructed for its models of a profit margin of 14.6% which is not reasonable or is higher than the normal profit within the meaning of Article 2(3)(b)(ii) of the basic regulation.
18. It should be noted first that Minolta does not challenge the actual figures used as a basis for calculating the average profit margin of 14.6%, but puts forward a number of arguments to show that the calculation method adopted by the Council inevitably led to determination of a profit which was neither reasonable nor normal.
19. In the first place, Minolta objects to the exclusion of sales at a loss from calculation of the average profit. In its view, since the Council concludes that a profit is normally realized on sales of products of the same general category on the domestic market of the country of origin (the words used in the penultimate sentence of Article 2(3)(b)(ii) of the basic regulation) despite the fact that some of them are sold at a loss, the normal profit to be included in the constructed value must not exceed the profit normally realized on all those products, including, therefore, those which are sold at a loss. In the present case, the Council excluded from its calculations machines sold at a loss and applied to all the Minolta models sold on the domestic market the profit calculated only on the basis of the remaining sales.
20. In response to that argument, it must first be stated that
21. In the second place, even though the Council's finding that all the methods of determining normal value enumerated in the final subparagraph of Article 2(4) of the basic regulation, to which the Council may have recourse where there are sales at a loss, display the common feature of being based on sales, values or prices which include or may include a profit, is not sufficient to show what that profit must be if the Council chooses the method of constructing normal value provided for in Article 2(3)(b)(ii), it seems to me that Minolta goes too far when it states that Article 2(4) has no relevance in that context. In fact, it is because the conditions for applying Article 2(4) are fulfilled that the Council adopts one of those methods, which must accordingly contribute to the purpose pursued by it. Article 2(4) expressly authorizes the institutions to consider sales made at a loss — under certain circumstances which are not at issue in this case — as not having been made in the ordinary course of trade. In such circumstances, the prices realized on such sales at a loss cannot therefore serve as a normal value within the meaning of Article 2(3)(a) of the basic regulation. The exclusion of them is therefore, in principle, an inherent result of applying Article 2(4). It would hardly be consistent with that purpose if the Council, in seeking to determine the normal value of products sold at a loss by using one or other of the methods provided for, were obliged to take them into account. If that were the case, there is no apparent reason why the Council should determine the normal value of products sold at a loss in accordance with one of the methods specifically provided for in Article 2(4): if it must take account of them in any event, why not determine an average normal value for all sales made at a loss or at a profit, relying simply on the prices actually paid or payable within the meaning of Article 2(3)(a)?
22. Moreover, the Council is right to emphasize that all the methods provided for, which are alternative to each other, should be applied so as to make it possible to arrive at values which are more or less similar, since the object in all cases is to establish a normal value as close as possible to the sale price of a product which would be charged if the product in question were sold in the country of origin or the exporting country in the ordinary course of trade. The first of those methods, based on
23. Furthermore, in its judgment in Joined Cases 277 and 300/85 Canon v Council [1988] ECR 5731, the Court accepted that the profit margin realized by a manufacturer of certain of its models on the domestic market and thus included in the actual price adopted as the normal value in accordance with Article 2(3)(a) should be used by the institutions as a reasonable margin within the meaning of Article 2(3)(b)(ii), for construction of the normal value for other models produced by the same manufacturer (see paragraphs 21 and 22). It is true that in that case the normal value had been constructed because the models in question had not been sold in sufficient quantities on the domestic market. It is not apparent, however, for what reasons the same rule could not be applied where the normal value is constructed for other reasons, such as for example the fact that certain models are sold at a loss. In those circumstances, this example shows clearly that Article 2(3)(b)(ii) certainly does not preclude, for the purposes of determining the reasonable margin of profit or normal profit to be included in the constructed value, account being taken only of sales at a price higher than the cost of production.
24. It is also apparent from the ETW judgments that where the normal value of a company's product is constructed, the margin of profit may be based on the profit realized by another company. I refer in particular to the judgment in Case 301/85 Sharp Corporation v Council [1988] ECR 5813, in which the Court stated that
25. Admittedly, the objection might be raised that the foregoing indicates at most that the Council could have applied to Minolta's sales at a loss the profit normally realized or realized in the ordinary course of trade by other companies, but does not make it possible to determine what those concepts mean and in particular does not give a direct answer to the question whether, if the other companies in question had also made sales at a loss, a profit margin taking account only of their sales at a profit would constitute a normal profit within the meaning of Article 2(3)(b)(ii) of the basic regulation or whether, in such a case, only their profit margin achieved in the ordinary course of trade could be applied to all Minolta's models.
26. The fact remains, however, that in order to justify the lawfulness of use of the profit margin of another company for the purpose of constructing the normal value, the Court expressly emphasized, both in paragraph 10 of the Sharp Corporation judgment and in paragraph 16 of the TEC judgment
27. I would point out, finally, that the new basic regulation, which superseded Regulation No 2176/84, expressly provides that the profits to be included in the constructed value are to be calculated by reference to the profitable sales of like products, whether made by the same manufacturer or by others.
28. In view of the foregoing, the maxim the greater power includes the lesser may be applied to the present case: in so far as the Council could validly have applied to the Minolta models sold at prices lower than the cost of production the margin of profit actually realized by other manufacturers on their sales of similar or different models, it was without doubt entitled to apply to them an average margin of profit taking account not only of sales by other manufacturers at prices higher than the cost of production but also of their sales at a loss, particularly since, in Minolta's case, the Council did not apply the average margin of only one other producer, which could have been the highest margin found, but, as we have seen, it applied an overall average of all the individual averages determined (see the penultimate paragraph of recital 10 of the contested regulation). It cannot therefore be claimed that the calculation method followed by the Council led to the determination of a profit margin for Minolta which is not reasonable or is higher than the normal profit within the meaning of Article 2(3)(b)(ii) of the basic regulation.
29. The two theoretical examples given by the applicant are not such as to undermine that conclusion.
30. In the first place, the Council did not do what Minolta, by reference to those examples, criticizes it for. It did not adopt profits of 10% or 60% for models 1 and 2 of companies B or C or, therefore, a profit of 35% for the three models of company A. Likewise, according to the method which it actually used, it arrived at the same profit of 10% for the two companies Alpha and Beta, even though one of them had sold certain models at a loss. What is more, it is apparent from the foregoing considerations that the Council could lawfully have done what, on the basis of those examples, Minolta criticizes it for doing. Since Article 2(4) of the basic regulation expressly provides for determination of the normal value
31. Finally, Minolta's reference to the method applied by the Council to determine, for the purpose of fixing the antidumping duty
32. As regards the other arguments put forward by Minolta regarding the manner in which the Council determined the profit to be included in the normal value, it need merely be stated that there is nothing to support them in the legislation. To require the reasonable or normal profit to be determined by reference to the profit realized throughout the period of existence of the PPCs in question, in order to take account of variations in their profitability with the passage of time, seems to me to go beyond the purport of Article 2(4) of the basic regulation whereby it is permissible to exclude sales at a loss provided, in particular, that they
33. Minolta also claims that even if the Council could have taken account, when determining the reasonable margin of profit, only of the profit on the (generally) profitable models (quod non), it should nevertheless have done so by taking account of the turnover of all sales, including unprofitable sales. However, as the Council rightly pointed out
34. As regards, finally, the inclusion of the profit made on the Japanese sales subsidiaries in the reasonable profit margin, I need only point out that it is apparent from paragraph 17 of the judgment in Joined Cases 273/85 and 107/86 Silver Seiko, cited earlier, that where there is a single economic entity, the institutions are not required to choose the profit margin of the manufacturer rather than of its sales subsidiary and that they may lawfully adopt the combined profit margins of the two companies.
35. The argument that the profit included in the normal value is unreasonable must therefore be rejected in its entirety.
36. 3. The applicant's third submission is that the Council wrongly included in the SGA expenses included in the constructed normal value an amount corresponding to the value of certain discounts granted by Minolta's Japanese sales subsidiaries to their customers.
37. In its application, Minolta particularly criticized the Council for treating the discounts in question in the same way as the discount payments referred to in recitals 13 and 14 of the contested regulation, although it had no evidence for classifying them as such. It is clear from the notes taken by Minolta's lawyers at the verification meeting held by Commission officials at Minolta's offices in February 1986 that, in any event, the applicant's representatives acknowledged in particular that
38. In its reply, moreover, Minolta concentrated its observations on the legal issues relating to the treatment of those discounts in the antidumping investigation (see paragraph R6.2). Its reason for so doing is that it thought that it perceived in the Council's defence express confirmation of a factor which in its view, from the outset, militated against classification of the discounts in question as trade-in payments and, therefore, inclusion of them in the normal value, namely that it never received or sought to receive the machines which were handed in (see paragraph 111 of the defence). However, as we have already seen in my opinion in Case 175/87 Matsushita v Council, that finding and the fact that the discount at issue was granted to dealers irrespective of whether they had actually agreed a trade-in with their customers or whether a trade-in had actually taken place (see paragraphs 6.27 of the application and R6.1 of the reply) are not sufficient to disprove that it was intended to enable them to make discounts and withdraw used PPCs from the market or that the — undisputed — absence of a secondhand market in Japan, resulting therefrom, conferred on Minolta the same advantages as those enjoyed by the other manufacturers, which are described at the end of the second paragraph of recital 13 of the contested regulation. As regards the finding that the discounts in question are granted on the basis of a uniform scale and do not therefore vary from one transaction to another, that does not show that the grant thereof is unconnected with the fact that a transaction involving a trade-in took place, but rather tends to confirm that it is intended to secure for Minolta advantages which, as in this case, are not connected with the recovery or resale value of the traded in machines.
39. It follows from the foregoing that the trade-in payments must be included in the normal value, whether the latter is determined on the basis of Article 2(3) (a) of the basic regulation, as in the case of Matsushita, or whether it is constructed in accordance with Article 2(3)(b)(ii), as it was in Minolta's case.
40. Finally, for the reasons set out in my opinions in Cases C-171/87 Canon v Council, and C-174/87 Ricoh v Council, it is also necessary to dismiss Minolta's alternative submission, namely that although the cost relating to trade-in payments could be included in the normal value under Article 2(3)(b)(ii), it should have been deducted from that value under Article 2(10)(c).
B — The comparison
41. In its fourth submission, Minolta claims that, in breach of Article 2(10)(c) of the basic regulation, the Council refused to make appropriate allowances in respect of the normal value to take account of certain types of expenses which, nevertheless, bore a direct relationship to the sales under consideration.
42. As regards the exclusion of the salaries of sales leaders from the allowance made in respect of salesmen's salaries, I consider that the Council was entitled to consider that no such direct relationship existed, since the inquiry had shown that their principle role was to manage and direct a sales force and not to make sales directly themselves. I do not wish to express a view on the Council's argument that salesmen's salaries were included under the expenses listed in Article 2(10)(c) as an exception and that the term salesmen should therefore be strictly interpreted. I must however observe that the applicant's view that nothing in that provision justifies such a strict interpretation involving a distinction between the various categories of salesmen seems to me to be excessively general. It overlooks the fact that in order to qualify for an allowance, the salaries paid to salesmen must, just like all the other types of expenses, bear a direct relationship to the sales under consideration, which implies that such salaries exist which do not bear such a direct relationship.
43. As regards the expenses relating to salesmen's vans, it should be noted that according to Minolta itself
44. As regards the remaining third, it was considered to relate to salesmen's ordinary travel costs and therefore as falling under the heading of overheads, for which allowances generally will not be made and which, normally, are not directly linked to the sales under consideration, since they are incurred whether or not a sale is made (see, in that regard, in particular paragraph 19 of my Opinion in Case C-174/8 7 Ricoh v Council, and paragraph 46 in my Opinion in Case C-171/87 Canon v Council). Since the applicant expressly agrees to the apportionment of two-thirds to one-third thus made (see paragraph R7.7 of the reply), it follows from the foregoing that the Council did not commit any error by granting an allowance only for part of the expenses arising from the use of vans. For the same reasons, it was also entitled to refuse to grant an allowance for all the salesmen's travel costs incurred for travel by train, taxi or aeroplane.
45. As regards, finally, the costs of warehousing, transport, insurance and credit incurred by MO (Minolta's manufacturing company) and the costs of transport, vehicles and credit of M/S relating to its sales to other sales subsidiaries of Minolta, I need merely refer to paragraph 45 of my Opinion in Case C-171/87 Canon v Council, which shows that costs of that kind do not bear a direct relationship to the sales under consideration, since they are incurred at a stage prior to those sales which, in the case of a manufacturing and selling organization of the kind established by Minolta, are those made to the first independent purchaser.
46. The submission concerning the Council's refusal to deduct certain allowances from the normal value under Article 2(10)(c) of the basic regulation is thus likewise unfounded.
C — Calculation of the dumping margin
47. Since Minolta is the only applicant to have alleged that the dumping margin was unlawfully calculated, I should remind the Court that pursuant to Article 2(13)(b) of the basic regulation
48. Minolta claims that by using, in the present case, the weighted average method for calculation of the normal value and the transaction-by-transaction method for calculation of the export price, the Council did not make a valid comparison between those two items as it is required to do by Article 2(2), (9) and (13)(b) of the basic regulation.
49. However, the Court has already rejected the same arguments in its judgments, cited earlier, in the ballbearings cases. In paragraphs 15 and 18 of its judgment in Case 258/84 Nippon Seiko v Council [1987] ECR 1923, for example, it expressly stated that neither Article 2(13)(b) nor Article 2(9) of the basic regulation impose any requirement that the methods chosen for calculating the normal value and the export price should be similar or identical. It added, in paragraph 24 of that judgment, that
50. Minolta infers from the latter passage that only the existence of special circumstances could render the transaction-by-trans action method the most appropriate for calculating the export price where the normal value has been calculated according to the weighted average method. In that regard, it seeks to rely on the following paragraph of the judgment just cited, according to which
51. I do not think that that argument can be upheld. In the first place, it must be noted, as the Court did in paragraph 21 of the Nippon Seiko judgment, that the choice between the different methods of calculation specified in Article 2(13)(b) requires an appraisal of complex economic situations. It is not sufficient therefore to show that the application of a method other than that adopted would have been perfectly possible in the circumstances of this case — it would be necessary to prove that, by adopting the contested method, the Council committed a manifest error in its appraisal of the facts of the case.
52. Furthermore, Minolta's argument implies that among the calculation methods indicated, there is one which would take precedence over the others, and would, so to speak, set a standard so that the others could only be applied exceptionally. However, that is not the case, so much so that the Court was able to rely, in paragraph 33 of the judgment cited earlier, on the simple fact that
53. Finally, Minolta's interpretation of the passage cited earlier from paragraph 25 of the Nippon Seiko judgment does not seem to me to be correct. The existence of manoeuvres in which dumping is disguised is not laid down as prior condition for application of the transaction-by-transaction method. In the present case, moreover, no such manoeuvres were alleged. In my opinion, the Court simply wished to describe the effects arising from application of the transaction-by-transaction method, by virtue of which, it will be remembered, export prices higher than the normal value are fictitiously reduced to the level of the normal value before being incorporated, together with export prices lower than the normal value, in the calculation of the weighted average of export prices as a whole.
54. That interpretation seems to me to be supported by the second part of paragraph 25 of the judgment in which the Court compares the contested method with the weighted average method which, in such a situation, that is to say where the export prices are sometimes higher and sometimes lower than the normal value,
55. It may also be based on the specific link which the Court established between the choice of the most appropriate method of calculating the dumping margin and the purpose of the procedure for imposing an antidumping duty which, according to
56. It follows from that conclusion that there can likewise be no question of any infringement of the principle audi alteram partem in such circumstances: in so far as the Council was entitled to apply the transaction-by-transaction method even in the absence of intentional manoeuvres to disguise dumping, it was not obliged to give the applicant an opportunity to present its observations on such evidence as it might have at its disposal in that connection.
57. Finally, as regards the alleged infringement of Article 190 of the EEC Treaty, it must first be noted that both the application of the weighted average method for calculation of the normal value and that of the transaction-by-transaction method for calculation of the export price are clearly mentioned in recitals 5 and 26 of the definitive regulation, read in conjunction with recitals 6 and 29 of the provisional regulation, which they merely confirm. Furthermore, since the transaction-by-transaction method is included among the methods for calculating the dumping margin on the same basis as the other methods listed in Article 2(13)(b) of the basic regulation, I consider that the Council was not obliged to give special reasons, in the preamble to the contested regulation, for its recourse to that method. The fact that the regulation contested in the ballbearings cases was more prolix in that regard is accounted for by the fact that, at that time, the choice of the transaction-by-transaction method represented a departure from the previous practice of the institutions.
58. As regards the figures given in the confidential set of tables which the applicant appended to its application and to which it refers in the present context as well, they are wholly irrelevant since they are based on calculation methods different from those which, as we have seen, the Council properly used.
Conclusion
59. Since the none of the applicant's submissions can be upheld, I propose that the Court dismiss the application and order Minolta to pay the costs, including those of the interveners.
1 Original language: French.
2 OJ 1987 L 54, p. 12.
3 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).
4 The Antidumping Code, entitled Agreement on implementation of Anicle VI of the General Agreement on Tariffs and Trade, was approved on behalf of the European Economic Community by Council Decision 80/271/EEC of 10 December 1979 concerning the conclusion of the Multilateral Agreements resulting from the 1973-79 trade negotiations (OJ 1980 L 71, pp. 1 and 90).
5 See paragraphs 4.2 and 4.26 of the application.
6 Joined Cases 21 to 24/72 International Fruit Company v Produktschap voor Groenten en Fruit [1972] ECR 1219.
7 In thai context it is interesting to note that in its judgment of 11 July 1990 in Case C-157/87 Electroirapex and Others v Council [1990] ECR I-3021, the Court rejected a definition of dumping Dased on a comparison of a sale price of a product with its cost price (see paragraphs 20 to 22).
8 That is what the Council did for three of Canon's models — see page 18 of the Report for the Hearing in Case C-171/87.
9 Council Regulation (EEC) No 2423/88 of 11 July 1988 (OJ 1988 L 209, p. 1).
10 Commission Regulation (EEC) No 2640/86 of 21 August 1986 imposing a provisional antidumping duty on imports of plain paper photocopiers originating in Japan (OJ 1986 L 239, p. 5).
11 Council Regulation (EEC) No 2423/88 of 11 July 1988 (OJ 1988 L 209, p. 1).
12 See paragraph R.5.25 of the reply; the profit at issue is doubtless that realized by the Japanese sales subsidiaries.
13 It is to be noted in Regulation (EEC) No 2+23/88 of 11 July 1988 (OJ 1988 L 209, p. 1), which is the basic regulation at present in force, salaries paid to salesmen are expressly defined as those paid to personnel wholly engaged in direct selling activities. In the first recital in the right hand column of page 3 of the relevant Official Journal, the new regulation also states for reasons of clarity, ... no allowance should be made for general selling expenses since such expenses are not directly related to the sales under consideration with the exception of salesmen's salaries which should not be treated differently to commissions paid.
14 It should be noted that the new basic regulation states specifically that an allowance may be granted for directly related costs incurred for conveying the product concerned