Opinion of Mr Advocate General Lenz delivered on 5 December 1990
1 Original language: German.
2 OJ 1988 L 317, p. 33.
3 Commission Regulation of 17 May 1988 imposing a provisional antidumping duty on imports of serial-impact dot-matrix printers originaung in Japan (OJ 1988 L 130, p. 12).
4 Council Regulation 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).
5 Council Regulation on protection against dumped or subsidized imports from countries not members of the European Economic Community (OJ 1988 L 209, p. 1).
6 These words refer to the first option contained in the provision in question, which provides that the amount for selline, general and administrative expenses and profit shall be calculated by reference to the expenses incurred and the profit realized by the producer or exporter on the profitable sales of like products on the domestic market.
7 My emphasis.
8 OJ 1980 L 71, p. 90.
9 OJ 1980 L 71, p. 1.
10 See, for example, the judgment in Case 258/84 Nippon Seiko KKv Council[1987] ECR 1923, paragraph 21).
11 Rules of procedure adopted bv the Council on 24 July 1979 on the basis of Article 5 of the Treaty of 8 April 1965 establishing a single Council and a single Commission of the European Communities (OJ 1979 L 268, p. 1).
12 See Commission Decision 86/34 of 12 February 1986 terminating the antidumping proceeding concerning imports of electronic typewriters manufactured by Nakajima All Precision Co. Ltd and originating in Japan (OJ 1986 L 40, p. 29).
13 See the judgment in Joined Cases 305/86 and 160/87 Neotypt Ttchmoibtxport GmbH v Committion and Council [1990] ECR I-2945, at paragraph 69.
14 Judgment in Case 85/76 Hoffman-La Roche 6 Co. AG v Commiíiion [1979] ECR 461, at paragraph 11.
15 The applicant's argument on this point is contradictory: the date of 18 November 1988 is taken from its arguments concerning the alleged infringement of the Council's rules of procedure; at point 12 on page U of the application, however, it is stated that the applicant sent a memorandum to the Council on 26 October 1988 concerning that Commission proposal.
16 See also the judgment in Joined Cases 260/65 and 106/86 TEC ma Otben v Comici/[1988] ECK 5855, at paragraph 20.
17 I cannot understand how dumping can be established through an evaluation of accounting data of Community producers.
18 See Council Regulation (EEC) No 1698/85 (OJ 1985 L 163, p. 1).
19 Commission Decision of 12 February 1986 (OJ 1986 L 40, p. 29).
20 Judgment in Case 250/84 Eridania and Othersv Conguaglio Zucchero and Others [1986] ECR 117, at paragraph 37; judgment in Joined Cases C-304/86 and C-185/87 Emut y Commission and Council[1990] ECR I-2939.
21 Infringement of the Treaty or of any rule of law relating to its application or misuse of powers.
22 Fourth and thirty-third recitals.
23 Sec the fourth recital: should be presented clearly and in sufficient detail; thirty-third recital: to define more precisely.
24 The thirty-third recital in the German version of the regulation does not correspond to the versions in the other official languages, in which the recital concludes with the words or on any other reasonable basis.
25 See Commission Decision 86/34/EEC of 12 February 1986 terminating the antidumping proceeding concerning imports of electronic typewriters manufactured by Nakajima All Precision Co. Ltd and originating in Japan (OJ 1986 L 40, p. 29).
26 See, in particular, the judgment in Case 181/73 Haegemann v Belgium [1974] ECR 449. at paragraphs 2 to 6; judgment in Case 104/81 Hauptzollamt Mainz v Kmjerherg [1982] ECR 3641, at paragraph 13 et seq; finally, the judgment in Case C-192/89 Sevince v Staatssecretaris van Justitie [1990] ECR I-3461, at paragraph 10 et seq.
27 The judgment cited next concerns an agreement originally concluded by a Member State which subsequendy became an integral part of Community law when the Community became the sole body responsible for commercial policy; however, in the present context this distinction is irrelevant.
28 See in particular the judgment in Case 38/75 Nederlandse Spoorwegen v Inspektor der Einfuhrzölle und Verbrauchssteuern [1975] ECR 1439, at paragraph 20 et seq.
29 Judgment in Case C-189/88 Cartorobica v Ministen delle Finanze dello Stato [1990] ECR I-1269, in particular ai paragraph 23.
30 Judgment in Joined Cases 21 to 24/72 International Fruit Company NV and Others v Produktschap voor Groenten en fruit [1972] ECR 1219; judgment in Case 9/73 Schlüter v Hauptzollamt Lörrach [1973] ECR 1135; judgment in Case 266/81 SIOTv Ministem delle Finanze and Others [1983] ECR 731 ; and judgment in Joined Cases 267/81 to 269/81 Amministrazione delie Finanze dello Stato v SPI and SAMI [1983] ECR 801.
31 Judgment in Case 70/87 Fediol v Commission [1989] ECR 1781, at paragraph 18 et seq.
32 Council Regulation (EEC) No 2641/84 of 17 September 1984 on the strengthening of the common commercial policy with regard in particular to protection against illicit commercial practices (OJ 1984 L 252, p. 1).
33 See the final sentence in paragraph 19 of the judgment in Fediol III, cited above.
34 Paragraph 19.
35 Paragraph 22 of the judgment.
36 Paragraph 53 (sec footnotes 27 and 28).
37 Paragraph 20 of the judgment.
38 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).
39 Judgments in Joined Cases 260/85 and 106/86 Tokyo Electric Company (TEC) and Othen v Council [1988] ECR 5855, ai paragraphs 24 and 27; in Case 250/85 Brotbtr Industries Limited v Council [1988] ECR 5683, ai paragraph 18; in Joined Cases 277/85 and 300/85 Canon Inc. and Othen v Council [1988] ECR 5731, at paragraph 26; and in Joined Cases 273/85 and 107/86 Silver Seiko Ltd and Olien v Council [1988] ECR 5927, at paragraph 16.
40 In other official languages, the concept of reasonableness is not repeated here; it is however indicated that such figures cannot be used. However, I do not see any difference in this regard.
41 My emphasis.
42 See Article 16(6)(a) of the Code.
43 See Vermulst: Antidumping Law and Practice in the United States and the European Communities, 1987, p. 700.
44 Although Article 2(6) of the Code does not use the term normal value, it does provide for a comparison to be made between the export price and alt the data which the basic regulation groups together under the concept of normal value.
45 See in this instance recital 40 of the Commission regulation imposing the provisional duty.
46 Paragraph 30.
47 See recital 39, in conjunction with recital 40, of the Commission regulation imposing the provisional duty.
48 According to the TEC judgment, this is to be understood as referring in each case to the economic unit.
49 Sec the judgment in Case 240/84 NTN Toyo Bearing Limited and Others v Combo/(19871 ECR 1809, at paragraph 13 et seq.
50 judgments in Case 255/84 Nachi Fujikothi Corporation v Council[1987] ECR 1861, at paragraph 31 et seq.; in Case 258/84 Nippon Seiko KK v Council [1987] ECR 1923, at paragraph 43 et seq.; and in Case 260/84 Minebea Company Limited v Council (19871 ECR 1975, at paragraph 41 et seq.
51 See previous footnote.
52 See also the judgment of lhe same day in Joined Cases 277 and 300/85 Canon Inc and Others v Counát [1988] ECR 5731, at paragraph 37, and that in Joined Cases 273/85 and 107/86 Silver Seiko Ltd and Others v Council [1988] ECR 5927.
53 Opinion in the 7ZCcase, cited above, at p. 5898.
54 See, for exampie, the judgment in the Minebea case, cited above, at paragraph 42.
55 See the judgment in the Minebea case, cited above, at paragraph 36.
56 Judgment in Joined Cases 117/76 and 16/77 Ruckdeschel and Another v Hauptzołlamt Hamburg-St. Annen [1977] ECR 1753, at paragraph 7; most recently, judgment in Joined Cases C-267/88 to C-285/88 Wuidart and Others v Laiteries Coopératives Eupenoises and Others [1990] ECR I-435, at paragraph 13.
57 Judgment in Case 13/63 Italy v Commission [1963] ECR 165, at part III (4) of the judgment; judgment in Case 8/82 Wagner v Bundesanstalt jur landwirtschaftliche Marktordnung [1983] ECR 371; and judgment in Case 106/83 Sermide STA v Cassa Conguaglia Zucchero and Others [1984] ECR 4209, at paragraph 28.
58 See in particular the judgment in Case 218/82 Commission v Comicii [1983] ECR 4063; in Joined Cases 201/85 and 202/85 Klensck and Others v Staatssekretär für Landwirtschaft und Weinbau [1986] ECR 3477; and in Casc 205/84 Commission v Federat Republic o/Germany [1986] ECR 3755.
59 See the judgment in Case 250/84 Eridania Zuccherifici Nazionali SpA and Othen v Cassa Conguaglia Zucchero and Others [1986] ECR 117, at paragraph 37; judgment in Case C-27/89 SCARPE v ONIC [1990] ECR I-1701, at paragraph 27.
60 The amount for selling, general and administrative expenses and profit shall be calculated by reference to the expenses incurred and the profit realized by the producer or exporter on the profitable sales of like products on the domestic market.
61 Judgment in Case 301/85 Sharp Corporation v Coimai [1988] ECR 5813.
62 Council Regulation (EEC) No 1698/85 of 19 June 1985 imposing a definitive antidumping duty on imports of electronic typewriters originating in Japan (OJ L 163, p. 1)-
63 See footnote 104.
64 OJ 1984 L 335, p. 43.
65 Judgment in Joined Cases 18/65 and 35/65 Gutmann v Commission [1966] ECR 103, at p. 117; judgment in Case 69/83 Lux v Court o/Auditors [1984] ECR 2447, at paragraph 30.
66 Judgment in Case 8/55 Fédération Charbonnière di Beigigue v High Authority [1954 to 1956] ECR 245, at 257; judgment in Joined Cases 3/64 and 4/64 Chambre Syndicale de ia Sidérurgie Française and Others v High Authority [1965] ECR 441, at 454.
67 See Daig, Nichtigkeits- und Untätigkeitsktagen im Recht der Europäischen Gtmeinschafitn, 1985, p. 175.
68 See footnote 64.
69 These contentions refer to the applicant's letter of 2 September 1988 addressed to the Commission.
70 Annex K to the application.
71 Decision 86/34/EEC, cited above at footnote 11.
72 [1985] ECR 5855, at 5865.
73 See also the other judgments delivered on 5 October 1988 in Joined Cases 273/85 and 107/86 Silver Seiko Limited and Others v Comal [1988] ECR 5927, at paragraph 55, and in Case 301/85 Sharp Corporation v Council [1988] ECR 5813, at paragraph 22.
74 Judgment in Joined Cases 7/56 and 3/57 Aistra and Others v Common Assembly [1957 and 1958] ECR 39, lt 55; judgment in Case 15/60 Simon v Court of Justice [1961] ECK 115, at 123; judgment in Case 54/77 Herpels v Commission [1978] ECR 585, at paragraph 34 et seq.
75 Judgment in Case 4/73 Nold v Commission [1974] ECR 491; judgment in Case 44/79 Hauer v Land Rheinland-Pfalz [1979] ECR 3727.
76 Judgments in Case 230/78 Eridania-Zuccheri/ici Nazionali ana Another v Minuter Jot Agriculture ana Forestry and Otbtrs [1979] ECR 2749, ai paragraph 22; Bioviltc v European Economic Community [1984] ECR 4057, at paragraph 23; in Joined Cases 133/85 to 136/85 Rau and Others v Bundesanstalt fur landwirtschaftliche Marktordnung [1987] ECR 2289, at paragraph 18; and in Case C-350/88 Delacre and Others v Commission [1990] ECR I-395, at paragraph 34.
77 Judgment in Case 191/82 Fedioii Commission [1983] ECR 2913, at paragraph 26; judgment in Case 264/82 Timex Corporation v Council and Commission [1985] ECR 849, at paragraph 16.
78 See the judgments in Case 245/81 Edeka Zentrale AG v Federal Republic of Germany [1982] ECR 2745, at paragraph 27; in Case 52/81 Faust v Commission [19821 ECR 3745, at paragraph 27; in Joined Cases 424/85 and 425/85 Frico and Others v Voedselooorzienings In- en Verkoopbureau [1987] ECR 2755, at paragraph 33; and in Case C-350/88, cited above at footnote 75, at paragraph 33.
79 See the judgments in Case 260/84 Minehea v Council [1987] ECR 1975, at paragraph 28 et seq.; in Case 258/84 Nippon Seiko KK v Council [1987] ECR 1923, at paragraph 34; and in Case 256/84 Koyo Seiko Company Limite J w Council[1987] ECR 1899, at paragraph 20.
80 In addition to the judgments cited in footnote 73, see also the judgments in Joined Cases 42/59 and 49/59 Sulipo/v High Authority [1961] ECR 53; in Case 14/61 Hoogovens* High Authority [1962] ECR 253; in Case 159/82 Verli-Wallace v Commission [1983] ECR 2711; and in Case 253/86 Sociedade Agro-Pecuaria Vicente Nobre LDA v Council [1988] ECR 2725.
81 Judgment in Case 112/77 Täpßrv Commission [1978] ECR 1019, at paragraph 19.
82 See footnotes 77 and 78 above.
83 See the opinion of Advocate General Sir Gordon Slynn in Case 108/84 De Santis v Court of Auditort [1985] ECR 947, at 952.
84 See, in deuil, my Opinion in Joined Cases 63/84 and 147/84 Firuidtri Commission [1985] ECR 2857, at 2866.
85 See the judgment in Case 230/81 Luxembourg v European Parliament [1983] ECR 255, at paragraph 22 et seq.; judgment in Case 44/84 Hurd v Jones [1986] ECR 29, at paragraph 57 et seq.
86 Opinion in Joined Cases 63/79 and 64/79 Boizard v Commission [1980] ECR 2975, at 3002.
87 Products sold to independent customers who resell them under their own brand names (see recital 27 of the contested regulation).
88 We should note in passing that the provisions applied here are almost identical in wording to the corresponding provisions of the Anti-Dumping Code (see Article 4(1), introductory sentence and point (i), of that Code).
89 See the Ernst & Whinney study at p. VII-9 and VII-17.
90 A comparison between the Ernst & Whinney study and the figures given in recital 47 of the contested regulation clearly shows that the figures used in this pan of the regulation are drawn in their entirety from the Ernst & Whinney study and that they relate also to Community producers other than those who are members of Europrint.
91 See Table VIM of the study.
92 See the judgment in the TEC cue, at paragraph 47.
93 See Table VII-3 at p. VII-6 of lhe Ernst & Whinney study.
94 The figure of 188% given is attributable to an arithmetical error.
95 Table V-2.
96 OJ 1985 L 163, p. 1 (see recital 31).
97 See Tibie VII-1.
98 Lower segment: price decline between 29 and 30%; relative increase in the market share of the Japanese manufacturers: 10.2%; Middle segment: price decline between 8.3 and 15%; relative increase in the market share of the Japanese manufacturers: 6.7%.
99 Sec the judgment in Case 121/86 Anonymas Etainia Epicheiriseon Metallefiikon Vtomichanikon kai Nafiiliakon AE and Others v Council [1989] ECR 3919, paragraph 35 at 3955.
100 Table V-6.
101 1983/1984: 39 %; 1984/1985: 36 %; 1985/1986: 38,2 %.
102 See the E ÍC W study at p. VII-6 (Olivetti); p. VII-9 (HISI); p. V1I-17 (Philips).
103 Tibie V-6 of the E & W study.
104 1983: 15 %; 1984: 11 %; 1985: 8 %; 1986: 6%.
105 In this regard, see the judgment in Case 250/88 Brother y Council [1988] ECR 5683, paragraph 41.
106 Sit the judgment in Cue 125/78 GEMA v Commission [1979) ECR 3173, paragraph 29.