Opinion of Mr Advocate General Van Gerven
Mr President,
Members of the Court,
1. The Cour d'appel (Court of Appeal), Colmar, requests the Court to rule on the validity of Council Regulation (EEC) No 864/87 of 23 March 1987 imposing a definitive anti-dumping duty on imports of certain electric motors originating in Bulgaria, Czechoslovakia, the German Democratic Republic, Hungary, Poland and the Soviet Union.
Special features of the preliminary question
2. In the first place, it should be stated that the question raised by the Cour d'appel, Colmar, is formulated in very general terms. It is this:
3. The second special feature relates to the locus standi of Sermes SA, the appellant in the main proceedings. That company imports electric motors into France from the German Democratic Republic. In 1986 it brought an application for the annulment of Commission Regulation (EEC) No 3019/86 imposing a provisional anti-dumping duty on imports of certain electric motors originating in State-trading countries. By order of 8 July 1987 the Court dismissed that application as inadmissible. Since Sermes was not associated with an exporter of electric motors, the Court considered that in relation to it the contested decision constituted a regulation of general scope and not a decision of direct and individual concern to it, as provided for in the second paragraph of Article 173 of the Treaty.
4. Having regard to these two special features of the case, it is important as a preliminary matter to determine from what points of view Council Regulation No 864/87 must be examined in order to enable the Court to give a reply to the national court. It goes without saying, I think, that that reply must include the findings resulting from examination of the various submissions made by the applicants in the abovementioned direct actions seeking the annulment of Regulation No 864/87. Do other submissions need to be taken into account? In particular, do the submissions made by the appellant in the main proceedings in its observations presented to the Court which differ from those made in the context of the direct actions fall to be examined? It could be argued that parties are not entitled to request the Court to rule on submissions of invalidity other than those mentioned in the decision making the reference. In this case, the decision making the reference does not mention any submission as to invalidity and the grounds of the decision indicate the appellant's submissions only in very general terms. In such a situation it seems to me that the notion of judicial cooperation which characterizes preliminary ruling proceedings militates in favour of the examination of the submissions raised in observations of the appellant in the main proceedings. The reply concerning the validity of the Community measure will be all the more useful to the national court if it appears from the grounds of the judgment that those submissions have been duly examined.
Substance
5. In the Opinion which I have delivered today on the direct actions seeking the annulment of Council Regulation No 864/87, I examined a large number of submissions made by the applicants. None of those submissions led me to propose that the Court should annul the regulation in question.
First submission: Infringement of Article 14 of Regulation No 2176/84 and the principle of legal certainty
6. According to Article 14 of Regulation No 2176/84 a decision to accept an undertaking may, where warranted, be reviewed either at the request of a Member State or on the initiative of the Commission. A review may also take place at the request of any interested party who submits evidence of changed circumstances sufficient to justify the need for a review, provided that at least one year has elapsed since the conclusion of the investigation.
7. Sermes argues that Regulation No 864/87 should be annulled on the ground that it imposed a definitive anti-dumping duty following a review of undertakings previously given which was carried out in the absence of sufficient evidence of changed circumstances, contrary to Article 14 of Regulation No 2176/84 and the principle of legal certainty.
8. In order to understand this argument properly it is necessary to recall that in 1982 in the context of an earlier anti-dumping proceeding the Council and the Commission had accepted undertakings given by exporters of electric motors originating in State-trading countries. The exporters undertook to raise their prices on importation to the Community. The institutions accepted the undertakings because they considered that they were likely to eliminate the injurious effects of the imports found to have been dumped.
Second submission: Infringement of Regulation No 2176/84 and certain general principles of Community law
(i) Determination of normal value
9. Article 2(5) of Regulation No 2176/84 contains rules for the determination of the normal value of a product in the case of imports originating in non-market-economy countries. In such a case, the normal value is to be determined in an appropriate and not unreasonable manner on the basis of one of the following criteria:
10. Sermes maintains that the Council could not determine the normal value of the imported motors on the basis of the domestic selling prices of Yugoslav producers (criterion (a)), but ought to have determined it in accordance with the prices paid in the Community (criterion (c)).
11. In my Opinion in the direct actions, I have already stated that the Council was entitled to determine the normal value on the basis of the domestic selling prices of Yugoslav producers. Consequently, the Community institutions properly refrained from determining the normal value on the basis of prices paid in the Community. This criterion should only be used when neither the prices nor the constructed value as determined in accordance with subparagraphs (a) or (b) of Article 2(5) of Regulation No 2176/84 provides an adequate basis.
(ii) Determination ofinjury
12. Sermes maintains that the institutions have not established that Community producers suffered injury because of the imports of electric motors.
13. In my Opinion in the direct actions I stated that the Council was entitled to assess injury to the Community industry on the basis of the impact made by all dumped imports of electric motors originating in seven State-trading countries. That being the case, there is no need to examine whether the sampling method used by the Community institutions was representative for imports originating in one only of the relevant countries. The argument concerning the sample could only be taken into consideration if it were to appear that the sample was not representative for all imports. However, in the light of the information available to the Court, there is nothing to show that was the case.
Third submission: Misuse of powers
14. Sermes maintains that the definitive regulation is vitiated by misuse of powers, since the institutions allowed themselves to be guided not by the Community interest but by the interest in sectorial protection of a Community industry, in particular a French industry.
15. As the Court has consistently held, a decision is vitiated by misuse of powers only if it appears, on the basis of objective, relevant and consistent indications, to have been adopted in order to achieve purposes other than those for which it was intended. In that respect it should be observed that Regulation No 2176/84 is intended precisely to enable the institutions to adopt measures capable of defending Community producers who suffer significant injury because of dumped imports of like products. In accordance with Article 12(1) of the regulation an anti-dumping duty may, however, be imposed only if the interests of the Community call for Community action. In points 33 to 35 of the definitive regulation, Regulation No 864/87, which follow on from points 34 to 38 of the provisional regulation, Regulation No 3019/86, the Council set out the reasons which led it to the view that the interests of the Community required the adoption of a commercial protective measure. For its part Sermes has merely made assertions without substantiating them.
Fourth submission: Infringement of essential formal requirements and failure to state reasons
16. Sermes argues that the statement of the reasons on which Regulation No 864/87 is based is deficient in several respects and thus does not enable the Court to carry out judicial review.
17. In that connection it should be recalled that, as the Court has consistently held, the statement of reasons required by Article 190 of the Treaty must disclose in a clear and unequivocal fashion the reasoning followed by the Community authority which adopted the measure in question in such a way as to make the persons concerned aware of the reasons for the measure and thus enable them to defend their rights and to enable the Court to exercise its supervisory jurisdiction.
Fifth submission: Infringement of Article 7 of Regulation No 2176/84 and the rights to a fair hearing
18. Since the arguments concerning the preliminary steps leading to the adoption of the provisional regulation, Regulation No 3019/86, may be left aside, the fifth submission may be reduced to the single argument that the institutions infringed Article 7 of Regulation No 2176/84 and the right to a fair hearing by refusing to give Sermes an opportunity to confront the complainants.
Sixth submission: Infringement of the principle of equal treatment
19. Finally, Sermes observes that exports from the German Democratic Republic to the Federal Republic of Germany may continue to be carried out at the selling price which prevailed before the entry into force of Regulation No 864/87. Sermes does not indicate the legal basis for that situation. It merely asserts that in those circumstances the regulation in question deals differently with comparable situations and infringes the principle of equal treatment.
Suggested reply
20. In conclusion I suggest that the Court should reply as follows to the question raised:
1 Original language: French.
2 Council Regulation (EEC) No 864/87 of 23 March 1987 imposing a definitive anti-dumping duty on importi 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 Soviet Union, and definitively collecting the amounts secured as provisional duties (OJ 1987 L 83, p. 1).
3 Opinions in Joined Cases C-304/86 and C-185/87 Enitalv Commission and Council, [1990) ECR I-2939, in Joined Cases C-305/86 and C-160/87 Neotype Techmashexport v Commission and Council, [1990] ECR I-2945, in Joined Cases C-320/86 and C-188/87 Slanko Francei Commission and Council [1990] ECR I-3013 and in Case C-157/87 Electroimpex and Others v Council[1990] ECR I-3021.
4 The basic regulation referred to is 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 1985 L 201, p. 1). That regulation has in the mean time been replaced by Council Regulation (EEC) No 2423/88 of 11 July 1988 (OJ 1988 L 209, p. 1).
5 See inter alia the judgment in Case 246/87 Continentale Produkten-Gesellschafi Erhardt-Renken v Hauptzollamt München-West [1989] ECR 1151.
6 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 1057 but not more than 75 kW, originating in Bulgaria, Czechoslovakia, the German Democratic Republic, Romania and the Soviet Union (OJ L 280, p. 68).
7 Order in Case 279/86 Sermu v Commission [1987] ECR 3109.
8 See judgment in Joined Cases 50 to 58/82 Administrateur des affaires maritimes, Bayonne v Dorca Manna [1982] ECR 3949, at p. 3959. In that case the Court refused to examine the validity of a Community measure from the point of view of its compliance with the general principles of law. It was, however, clear that the submission made did not fall within the context of the question raised, which cannot be argued in the present case.
9 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 Aprii 1984 (OJ 1984 L 95, p. 28).
10 See in particular the 11th recital to Council Regulation No 2075/82 of 28 July 1982.
11 Judgment in Case 258/84 Nippon Seiko v Council [1987] ECR 1923, paragraph 34.
12 Sec inter alia the judgment in Case 198/87 Kerzmann v Court of Auditors [1989] ECR 2083 (summary of the judgment, paragraph 2).
13 See inter alia the judgment in Case 255/84 Nachi Fujikoshi v Council [1987] ECR 1861, paragraph 39.
14 See the judgments in Case 14/74 Norddeutsches Vieh- und Fleischkontor v Hauptzollamt Hamburg-Ionas [1974] ECR 899, in Case 23/79 Gefliigetschlachterei Freystadt v Haupt- zotlamt Hamburg-Jonas [1979] ECR 2789 and in Case 12/88 Schäfer Shop v Minister van Economische Zaken [1989] ECR 2937.