Report for the Hearing delivered in Case C-189/88
I — Facts and procedure
1. Council Regulation (EEC) No 551/83 of 8 March 1983 imposing a definitive antidumping duty on kraftliner paper and board originating in the United States of America and accepting undertakings given in connection with the review of the antidumping proceeding on kraftliner paper and board originating in Austria, Canada, Finland, Portugal, the Soviet Union and Sweden (Official Journal 1983, L 64, p. 25) imposed a definitive antidumping duty on kraftliner paper and board, unbleached kraftliner, originating in the United States of America.
2. Cartorobica SpA (hereinafter referred to as Cartorobica) of Milan is active in the paper industry.
3. In those circumstances, the tribunale di Genova (First Civil Section), by an order of 23 June 1988, stayed the proceedings and referred the following questions to the Court of Justice for a preliminary ruling:
4. The order of the tribunale di Genova was received at the Court Registry on 11 July 1988.
5. Pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the European Communities, written observations were submitted by Cartorobica, represented by Fausto Capelli, of the Milan Bar; by the Government of the Kingdom of the Netherlands, represented by E. F. Jacobs, Secretary-General of the Ministry of Foreign Affairs; by the Commission of the European Communities, represented by Eugenio de March, a member of its Legal Department, acting as Agent; and by the Council of the European Communities, represented by Erik Stein, Legal Adviser to its Legal Department.
6. Upon hearing the repon of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure. It also put a question to the Council and the Commission.
7. By decision of 4 October 1989, the Court assigned the case to the Third Chamber.
II — Written observations submitted to the Court
The first two questions
1. Cartorobica has submitted the following observations to the Court:
2. The Kingdom of the Netherlands states that the distortion of competition between undertakings operating in the Community, referred to by Cartorobica, does not result from fluctuations in the exchange rate of the dollar, but from exchange-rate movements of the currencies of the Member States as against each other.
3. The Council and the Commission point out that Regulation No 551/83 is based on Regulation No 3017/79, as amended by Council Regulation (EEC) No 1580/82 of 14 June 1982 (Official Journal 1982, L 178, p. 9), and that those general rules were adopted by the Community pursuant to the Anti-Dumping Code contained in the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade, 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 (Official Journal 1980, L 71, p. 1).
The third question
1. Cartorobica claims that in the absence of injury to Community industry by dumped products from nonmember countries the antidumping regulations are not applicable. To apply them would be to infringe not only the basic regulation, Regulation No 3017/79, but also the GATT rules. According to the case-law of the Court (judgment of 23 May 1985 in Case 53/83 Allied Corporation v Council [1985] ECR 1621), antidumping duties must be maintained to the extent necessary to enable those duties to counteract the harmful effects of the dumping operations.
2. The Commission states, in observations to which the Council refers, that in the absence of specific provisions the rate used to convert the antidumping duty into the national currency must be the rate applying at the time when the goods entered into free circulation and not at the time when the regulation imposing the levy entered into force. If the latter interpretation were to be accepted, in the event of substantial depreciation of the currencies of the Member States, the antidumping duty might not be sufficient to offset the injury caused by imports of dumped products.
III — Reply to the question put by the Court
The Court asked the Council and the Commission to answer the following question:
The Council and the Commission gave the following reply.
The determination of the free-at-frontier Community price, duty-unpaid, per tonne net to the first purchaser in the customs territory of the Community
The Council and the Commission point out that until 30 June 1980 the Community applied for the purposes of customs valuation Regulation (EEC) No 803/68 of the Council of 27 June 1968 on the valuation of goods for customs purposes (Official Journal, English Special Edition 1968 (I), p. 170), which was heavily influenced by the Brussels definition negotiated in the Customs Cooperation Council and based on the concept of normal price.
Subsequently, Council Regulation (EEC) No 1224/80, cited above, was adopted which mirrors the customs valuation code negotiated within the framework of the General Agreement on Tariffs and Trade (GATT) and which is based essentially on the concept of the transaction value (or the price actually paid or payable by the purchaser). Thus in its antidumping regulations the Community has gradually stopped referring to customs value and now refers only to the concept of the free-at-frontier Community price, duty-unpaid, per tonne net. This change came about mainly for the following reasons.
Using such a provision the net price can be increased or reduced by a percentage depending on the terms of payment.
However, for the purposes of determining the customs value of goods in regard to which the price has not actually been paid at the material time for valuation, the price payable for settlement at the said time is as a general rule to be taken as the basis for customs value (see Article 2 of Commission Regulation (EEC) No 1495/80 of 11 June 1980, Official Journal L 154, p. 14). Moreover, interest payable under a financing arrangement concluded by the purchaser is not to be included in the customs value (see Article 3(c) of Regulation No 1495/80).
Determination of the exchange rate
The Council and the Commission state that, since Regulation No 551/83 contains no specific provision, the provisions in force for the application of customs duties are to apply (see the second paragraph of Article 1 of Regulation No 551/83).
Where it is necessary to convert a currency in order to determine the value for customs purposes, the rate of exchange to be used is determined by the method laid down in Article 9 of Regulation No 1224/80.
The provisions of Article 9 of Regulation No 1224/80 have been further defined by Commission Regulation (EEC) No 1766/85 of 27 June 1985 on the rates of exchange to be used in the determination of customs value (Official Journal 1985, L 168, p. 21).
The material time for valuation for customs purposes for goods declared for direct entry into free circulation is generally the date of acceptance by the customs authorities of the declarant's statement of his intention that the goods should enter into free circulation (Article l(l)(g) of Regulation No 1224/80).
1 Language of the case: Italian.