Opinion of Mr Advocate General Darmon delivered on 7 February 1991
1 Original language French.
2 OJ 1987 L 317, p. 1.
3 OJ 1986 C 254, p. 3.
4 Commission Regulation (EEC) No 1289/87 of 8 May 1987 imposing a provisional anti-dumping duty on imports of urea originating in Czechoslovakia, the German Democratic Republic, Kuwait, Libya, Saudi Arabia, the USSR, Trinidad and Tobago, and Yugoslavia (OJ 1987 L 121, p. 11).
5 Article 1(2) of Regulation No 1289/87.
6 Council Regulation No 2691/87 extending the provisional anti-dumping duty imposed on imports of urea originating in Czechoslovakia, the German Democratic Republic, Kuwait, Libya, Saudi Arabia, the USSR, Trinidad and Tobago, and Yugoslavia (OJ 1987 L 254, p. 20).
7 Imposing a definitive anti-dumping duty on imports of urea originating in the United States of America or Venezuela and adjusting the definitive anti-dumping duty for Saudi Arabia laid down by Regulation (EEC) No 3339/87 (OJ 1989 L 52, p. 1).
8 Article 2.
9 At that time, 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. 19).
10 Article 3(2) of the contested regulation.
11 See Article 13(3) of the basic regulation.
12 Judgment of 27 March 1990 in Case C-189/88 Cartororica v Ministero delle Finanze ([1990] ECR I-1269, at paragraph 25), which deals with the identical provisions of Article 13 of Council Regulation (EEC) No 3017/79 of 20 December 1979 on protection against dumped or subsidized imports from countries not members of the European Economic Community (OJ 1979 L 339, p. 1) — the basic regulation in force at the time; see also the judgment of 11 July 1990 in Case C-305/86 Neolypev Council ([1990] ECR I-2945, at paragraph 58).
13 The Court has recently reseated what is meant by dumping, in its judgment of 11 July 1990 in Case C-157/87 Eleclroimpex and Others v Council / [1990] ECR 3021, at paragraphs 21 and 22
14 Annex 12 to the application.
15 Cereal Toscana SpA paid USD 118 (C&F price) for Saudi Arabian urea and USD 82 (C&F price) for Libyan urea, whilst Attilio Cormagni AC SpA shows prices of USD 84, 78, 75 and 69 in respect of Libyan urea
16 Judgment of 5 October 1988 in Case 301/85 Sharp Corporation v Council [1988] ECR 5813, at paragraph 22; judgment of 5 October 1988 in Joined Cases 260/85 and 106/86 TEC v Council [1988] ECR 5855, at paragraph 18; judgment of 5 October 1988 in Joined Cases 273/85 and 107/86 Silver Seiko v Council [1988] ECR 5927, at paragraph 55.
17 The decision closing the proceeding.
18 Case 301/85, cited above, at paragraph 21; see also Joined Cases 273/85 and 107/86, cited above, at paragraph 54.
19 Case 301/85, cited above, at paragraph 22; see also Joined Cases 260/85 and 106/86, cited above, at paragraph 18; and Joined Cases 273/85 and 107/86, cited above, at paragraph 55.
20 [1988] ECR 5844; see also his Opinion in the TEC case, [1988] ECR 5894.
21 It may further be noted that the Court has held that a regulation imposing different anti-dumping duties of a series of traders is of direct concern to any one of them only in respect of those provisions which impose on that trader a specific anti-dumping duty and determine the amount thereof, and not in respect of those provisions which impose anti-dumping duties on other undertakings judgment of 14 March 1990 in Case C-156/87 Gfife/nerv Council and Commission [1990] ECR 781, at paragraph 12; this would render inadmissibile any claim by the applicants, in this action for annulment, challenging the regulation in its imposition of an anti-dumping duty on imports from Libya.
22 By letter of 11 March 1987 (Annex 13 to the application).
23 Annex 9 to the application.
24 In previous judgments, incidentally, the Court has not attached a decisive value to the criterion of a small market share; in its judgment of 5 October 1988 in Joined Cases 294/86 and 77/87 Technointorg v Commission and Council [1988] ECR 6077, at paragraph 41, the Court held that it was in conformity with the basic regulation for account to be taken of the effect of all the imports on Community industry, and consequently for appropriate measures to be adopted in respect of all exporters, even if the volume of exports of any one of them, taken in isolation, is insubstantial.
25 Paragraph 66 of the application; see also recitals 3! and 32 in the preamble to Regulation No 1289/87 and recital 32 in the preamble to Regulation No 3339/87.
26 Emphasis supplied.
27 Judgment of 7 May 1987 in Case 240/84 [1987) ECR 1809.
28 The basic regulation in force at the time.
29 Paragraph 26.
30 Paragraph 27; see also the similar wording of paragraphs 52 and 53 of the judgment of 7 May 1987 in Case 258/84 Nippon Seiko v Council [1987] ECR 1923.
31 [1987] ECR 1847.
32 Article 2.
33 Emphasis supplied.
34 Application, paragraph 77 and footnote 36.
35 Judgment of 24 October 1985 in Case 239/84 ([1985] ECR 3507).
36 Commission recommendation of 15 April 1977 on protection against dumping or the granting of bounties or subsidies by countries which are not members of the European Coal and Steel Community (OJ 1977 L 114, p 6)
37 Joined Cases 273/85 and 107/86, cited above, at paragraph 39; Joined Cases 260/85 and 106/86, cited above, at paragraph 47.
38 Application, Annex 9.
39 Annex L to the reply, p. 11.
40 Bescler and Williams, Anti-dumping and Anti-Subsidy Law, The European Communities, 1986, reference 4.5.3., pp. 98 10100.
41 See Annex 9 to the application, at I, 4, (c): It is not correct that prices of the Saudi Arabian product did not undercut those of Italian producers. During the investigation period the prices of the main Italian producers were undercut by those charged for the Saudi Arabian product by up to 28%.
42 Beseler and Williams, op cit., 8-5-7,p 195; Cunnane and Stanbrook, Dumping and Subsidies, The Law and Procedures Governing the Imposition of Anti-Dumping and Countervailing Duties in the European Community, 1983, p. 82.
43 The regulation imposing the anti-dumping duty
44 [1979] ECR 1262
45 Le respect des droits de la défense dans le driot administratif commenantaire Cahiers de droit européen, 1987, No I-2, p. 383.
46 Ibid., p. 387, note 7.
47 Judgment of 13 February 1979 in Case 85/76 [1979] ECR 461, at paragraph 14.
48 The same opinion is expressed in Hans-Christoph von Heydebrand und der Lasa Confidential Information in Antidumping Proceedings before United States Courts and the European Court, European Law Review, Volume II 1986, p. 331.
49 Judgment of 20 March 1985 in Case 264/82 [1985] ECR 849.
50 Rejoinder, Annex 1
51 Paragraph 83.
52 See above, paragraph 81.
53 Defence, Annex II.
54 See the letter of 13 August 1987, Annex 9 to the application, and the letter of 3 June 1987, Annex 6 to the application.
55 Judgment of 5 June 1980 in Case 108/79 [1980] ECR 1769, at paragraph 7, emphasis supplied.
56 Judgment of 26 November 1981 in Case 195/80 [1981] ECR 2861, at paragraph II
57 Judgment of 11 Mav 1989 in Joined Cases 193 and 194/87 Muurinen v Cono of Auditors [1989] ECR 1045, at paragraph 47
58 Annex 8 to the application.
59 Annex 6 to the application.
60 Since the publication of the regulation imposing a provisional duty had taken place on 9 May 1987, any written request for information was in principle, pursuant to Article 7(4) (c) (i) (cc) of the basic regulation, inadmissible after midnight on 9 June 1987, extensions are allowed under Article 7 (4) (c) (iii) of the basic regulation
61 Judgment of 10 July 1980 in Case 30/78 [1980] ECR 2229.
62 The new basic regulation, Council Regulation (EEC) No 2423/8G of 11 July 1988 (OJ 1988 L 209, p. 1) now includes an Article 2(10) (e) under which individual adjustments having an ad valorem effect of less than 0.5% of the price or value of the transaction affected are treated as insignificant and disregarded.
63 Case C-189/88, cited above, at paragraph 25; Case C-305/86, cited above, at paragraph 58.
64 Case C-305/86, cited above, at paragraph 60.
65 Application, Annex 10, p 13
66 Application, Annex 9
67 See footnote 58
68 Case 264/82, cited above, at paragraph 29.
69 Case 264/82, cited above, at paragraph 30.
70 Judgment of 5 October 1988 in Case 250/85 [1988] ECR 5683, at paragraph 34.
71 Case 264/82, cited above, at paragraph 30
72 See Horlick and Oliver, Trade Laws Regarding Imports. Recent Developments', p. 86, Documents de la Conférence Annuelle (1989) Collège de l'Europe, Bruges; Van Bael, Procedural Aspects of EEC Anti-Dumping Enforcement, p. 5, Documents de la Conference Annuelle (1989) Collège de l'Europe, Bruges; Van Bael, EEC Anti-Dumping Law and Procedure Revisited, Journal of World Trade, Volume 24, No 2, p. 5, April 1990, and Taylor and Vermulst, Disclosure of Confidential Information in Antidumping and Countervailing Duty Proceedings under United States Law A framework for the European Communities, The international Lawyer, Volume 21, No 1, p. 43.
73 James A Taylor and Edwin A Vermulst, op. cit. p. 45
74 Session document No A3-0336/90 of 30 November 1990
75 [1989] ECR 3934, 3942
76 Case 264/82, cited above, at paragraph 30.
77 Application No 13258/87 M. & Co. v Federal Republic of Germany: Decision of 9 February 1990 concerning an order to enforce a judgment of this Court.
78 Ringeisen judgment of 16 July 1971, A Series, Vol. 13, p. 39, paragraph 95; Konig judgment of 28 June 1979, A Series, Vol. 27, pages 29 and 30, paragraphs 88 to 90.
79 Delcourt judgment of 17 January 1970, A Series, Vol. 11, p. 15, paragraph 28; Bonisch judgment of 6 May 1985, A Series, Vol. 92, p. 15, paragraph 32.
80 Felbrugge judgment of 29 May 1986, A Series, Vol. 99, p. 17, paragraph 44.; Decision of the Commission No 7317/75, Lynas v Switzerland, of 6 October 1977; Rep. 1977, p. 412 at p. 445, paragraph 5.
81 On access to confidential information and administrative protective orders, see Kaplan, Kuhbach and Lorentzen, Antidumping, Countervailing Duty and the National Security Provisions in the 1988 Trade Act, George Washington Journal of International Law and Economics 1989, pp. 628-631; Kassinger, Antidumping Duty Investigations, p. 68, in Johnston Law and Practice of United States Regulation of International Trade, Oceana, 1989, pp. 23-25; Koch, Die Abwehr von Dumping: das Beispiel aes Amerìkanischen Rechts, Heidelberg, 1989, p. 328; Horlick and DeBusk, Commerce Procedures Under Existing and Proposed Antidumping/Countervailing Duty Regulations, The International Lawyer 1988, pp. 110-112; Horlick, The United States Antidumping System in Jackson and Vermulst, Antidumping Law and Practice, A Comparative Study, Harvester Wheatsheaf, 1989, pp. 111-113; Bello, Access to Business Confidential Information in Antidumping Proceedings, in Jackson and Vermulst, op. cit., pp. 349-353; Vermulst, Antidumping Law and Practice in the US and the European Communities: A Comparative Analysis, Elsevier, 1987, pp. 69-77; Taylor and Vermulst, op. cit., pp. 43-70; von Heydebrand & der Lasa, op. cit., p. 333; Schervier, Die Änderungen des Amerikanischen Antidumpings- und Ausgleichzollrechts durch den Trade and Tariff Act of 1984, RIW, 1985, p. 808; Ehrenhaft, A Practitioner's Response to the Anthony-Byrne Report: It ain't necessarily so, Law and Pol'y in Int'l Bus., 1985, pp. 71-79; Anthony and Byrne, Safeguarding Confidential Information in ITC Injury Proceedings: Proposals to reduce the Risk of Disclosure, Law and Pol'y in Int'l Bus., 1985, pp. I-63; Riesenfeld, The Treatment of Confidential Information in Antidumping Cases: A Comment on the Celanese Case, CMLRev., 1984, pp. 553-556; Bryan and Boursereau, Antidumping Law in the European Communities and the U.S.: A Comparative Analysis, George Washington Journal of International Law and Economics 1985, pp. 631-701; Garfinkel, Disclosure of Confidential Documents Under the Trade Agreements Act of 1979: A Corporate Nightmare, Law and Pol'y in Int'l Bus., 1981, pp. 465-493; Assman, Decision Making under the EEC and the U.S. Antidumping Laws, ZVglRWiss, 1981, pp. 327-354; Ehrenhaft, What the Antidumping and Countervailing Duty Provisions of the Trade Agreements Act can, will, should mean for US Trade Policy, Law and Pol'y in Int'l Bus., 1979, pp. 1361-1436; Lorenzen, Technical Analysis of the Antidumping Agreement and the Trade Agreements Act, Law and Pol'y in Int'l Bus., 1979, p. 1430; Van Bael, EEC Antidumping Law and Procedure Revisited, Journal of World Trade Law 1990, p. 18.
82 A typical formulation of this may be found in that court's judgment in Roquette Frères v United States (554 F. Supp. 1246, 1248, 4 ITRD (BNA) 1388 (Court of International Trade 1982): This Statute [paragraph 516 A (b) (2) (B) of the Tariff Act of 1930, as amended] gives the court wide latitude in determining whether or not to release confidential documents to parties involved in an antidumping proceeding. In making its determination, the court must consider (1) the needs of the litigants for data used by the Government in order to adequately respond to the antidumping finding, (2) the need of the Government in obtaining confidential information from businesses in future proceedings, and (3) the needs of the producers of sorbitol to protect from disclosure information which, in the hands of a competitor, might injure their respective positions in the industry.
83 For example: Japan Exlan Co. v United States (1 Court of International Trade 286, 15-23 Cust. B & Dec. 102, 3 I.T.R.D. (BNA) 1008 (1981) in which disclosure was authorized because it was based on the fact that none of the information contained therein is more recent than September 1979 with most of the information adduced dating back to 1978 or earlier, ... any sensitivity previously possessed by this data has become de minimis.
84 James A. Taylor and Edwin A. Vermulst, op. cit., infer this point from the interpretation by analogy of the judgment in Roquette Frères v United States, in which the Court of International Trade refused to grant disclosure of information submitted by American producers who were not applicants in the administrative procedure.
85 American Spring Wise Corporation v United States (566 F Supp. 1538, 4 IT.R.D. (BNA) 2210 (Court of International Trade (1983)) in which the court refused to allow the disclosure of information which was not directly relevant to the administrative determinations.
86 Nakajima All Co. v United States (3 Court of International Trade 69, 3 IT.R.D. (BNA) 1974 (1982)), in which the court ordered disclosure to Counsel for Nakajima on the ground that Counsel for the defendants had also had access to the information in question.
87 Atlantic Sugar I, 85 Cust. Ct 128, 2 IT.R.D. (BNA) 1546 (1980).
88 US Steel III, 730 F. 2d at 1465; on this point, see Mc Intyre, Can In-House Counsel be trusted with Access to a Competitor's Confidential Information?: U.S. Steel Corp. v United States, 58 St John's Law Review, 890 (1984).
89 For example, Hans-Christoph von Heydebranch und der Lasa, op. cit.; James A. Taylor and Edwin A. Vermulsi, op. cit., p. 69.
90 For example, James A. Taylor and Edwin A. Vermulsi, op. cit., p. 44.
91 James A. Taylor and Ewin A. Vermulst, op. cit., p. 68
92 Op. cit., p. 383; however, the Court has consistently held that the attitude of one of its trading partners, even a major partner, does not suffice to oblige the Community to follow the same course (judgment of 5 October 1988 in Joined Cases 277 and 300/85 Canon v Coucil [1988] ECR 5731, at paragraph 15, and judgment of 14 March 1990 in Joined Cases C-133/87 and C-150/87 Nashua v Commission and Council [1990] ECR I-719, at paragraph 30).
93 James A. Taylor and Edwin A. Vermulst, op. cit., p. 69, note 126.
94 Hans-Christoph von Heydebrand und der Lasa, op. cit., who bases himself on Article 21 of the Rules of Procedure.
95 Judgment of 18 May 1982 in Case 155/79 [1982] ECR 1575.
96 OJ 1987 L 317, p 1.