Opinion of Mr Advocate General Van Gerven delivered on 4 June 1991 Summary

1 Original language: Dutch.

2 Sec notice of initiation of an antidumping proceeding concerning imports of paint, distemper, varnish and similar brushes originating in the People's Republic of China (OJ 1986 C 103, p. 2).

3 Of 9 February 1987 accepting in undertaking given in connection with the anü-dumptng proceeding concerning imports of paint, distemper, varnisn and similar brushes originating in the People's Republic of China, and terminating the investigation (OJ 1987 L 46, p.45).

4 See recital 21 to Decision 87/104/EEC.

5 See notice of reopening of an antidumping proceeding concerning imports into the Community of paint, distemper, varnish and similar brushes originating in the People's Republic of China (OJ 1988 C 257, p. 5).

6 Ibid.

7 That provision gives the Commission, where it has reason to believe that an undertaking has been violated and where Community interesu call for such intervention, authority to apply ... antidumping ... duties forthwith on the basis of the facts established before the acceptance of the undertaking.

8 Of 29 September 1988 imposing a provisional antidumping duty on imports of paint, distemper, varnish and similar brushes originating in the People's Republic of China (OJ 1988 L 272, p. 16), amended by Commission Regulation (EEC) No 3543/88 of 4 November 1988 (OJ 1988 L 303, p. 11).

9 See Council Decision 88/576/EEC of 14 November 1988 repealing Decision 87/104/EEC accepting an undertaking given in connection with the antidumping proceeding concerning imports of paint, distemper, varnish and similar brushes originating in the People's Republic of China and terminating the investigation (OJ 1988 L 312, p. 33).

10 Regulation of 20 March 1989 imposing a definitive antidumping duty on imports of paint, distemper, varnish and similar brushes originating the People's Republic of China and definiùvely collecting the provisional antidumping duty on such imports (OJ 1989 L 79, p. 24).

11 Regulation of 11 July 1988 on protection against dumped or subsidized imports from countries not members of the European Economic Community (OJ 1988 L 209, p. 1).

12 See judgment in Case 314/85 Foto-Frost v Hauptzollamt Lübeck-Oit [1987] ECR 4199).

13 Sec judgments in Joined Cases 209 to 215 and 218/78 Van Landewyck v Commission paragraph 66 [1980] ECR 3125; Case 322/81 Michelin v Commission [1983] ECR 3461, paragraphs 11 to 14; Case 86/62 Hasselblad v Commission [1984] ECR 883, paragraphs 16 to 18; Case 42/84 Remia v Commission [1985] ECR 2545, paragraph 26; Joined Cases 240 to 242, 261, 262 and 269/82 Stichting Sigarettenindustrie v Commission [1985] ECR 3831, paragraphs 86 to 88.

14 See Annex 53 lo the written observations of 22 November 1988 addressed to the Commission; the extract of the letter which follows is repeated also in paragraph 47 of Nölle's written observations lodged in these proceedings.

15 Sec for example its written observations of 22 November 1988, pages 28 to 30, and of 15 December 1988, pages 7 and 8.

16 Referring to J. F. Beseler and A. N. Williams, Anti-Dumping and Anti-Subsidy Law, The European Communities, London, 1986, pp. 37 ff.

17 See for example Vandoren, P.: The Interface between Antidumping and Competition Law and Policy in the European Community, Legal Issues of European Integration, 1986, p. 3; Temple Lang, J.: Reconciling European Community Antitrust and Antidumping, Transport and Trade Safeguard Policies — Practical Problems, 1988, Annual Proceedings of the Fordham Corporate Law Institute (B. Hawk, ed. 1989), Chapter 7; Messerling P.: The E. C. Antidumping Regulations: A First Economic Appraisal, 1980-1985, Weltwirtschaftliches Archiv 1989, p. 563, and Kulms, R.: Competition, Trade Policy and Competition Policy in the EEC: The Example of Antidumping, Common Market Law Review, 1990, p. 285.

18 An application of this principle will be found in Commission Regulation (EEC) No 1362/87 of 18 May 1987 imposing a provisional antidumping duty on imports of ferro-silico-calcium/calcium suicide originating in Brazil (OJ 1987 L 129, p. 5) in which it is stated (in reply to the argument that Community producers made an effort to bring the Brazilian exporters into their cartel): The Commission takes the view that the purpose of antidumping proceedings is not and cannot be to enforce or encourage restrictive business practices and that the opening of such a proceeding does not therefore deprive an enterprise of its right to avail itself of the provisions of Articles 85 and 86 of the Treaty establishing tne European Economic Community (see recital (12) to that regulation).

19 On this subject see recital 12 to the definitive regulation.

20 I shall consider later (paragraphs 33 to 48) the assessment by the institutions of the injury suffered by the Community producers.

21 In the third paragraph of recital 341.

22 Recital (14) to the definitive regulation.

23 See for example the work of J. F. Beseler and A. N. Williams, op. cit., p. 67, cited with approval by F. G. Jacobs, Antidumping procedures with regard to imports from Eastern Europe in The political and legal framework of trade relations between the European Community and Eastern Europe (M. Maresceau, Ed.), 1988, p. 294.

24 Article 2(5) of the basic regulation regards in particular as non-market economy countries those to which Regulation (EEC) No 1765/82 on common rules for imports from State-trading countries (OJ 1982 L 195, p. 1) and Regulation (EEC) No 1766/82 on common rules for imports from the People's Republic of China apply.

25 See the judgments in Joined Cases 294/86 and 77/87 Tech- nointorg v Commission and Council [1988] ECR 6077, paragraph 29 and Joined Cases C-304/86 and C-160/87 Neotype Techmashexport v Commission and Council [1990] ECR I-2945, paragraph 26.

26 See my Opinion of 8 November 1988 in the Neotype case, already cited in note 24, paragraph 17 [(1990] ECR 2945).

27 Already cited, note 24.

28 See paragraph 30 of the grounds of judgment.

29 The predecessor of the present basic regulation.

30 See the Commission's observations, point II.2.7.

31 This appears to be common ground between the parties.

32 The Community institutions did not essentially contest this. The last paragraph of recital (17) to the definitive regulation states that in Sri Lanka two producers ... supply approximately 90% of the home market. In its written observations the Commission mentioned that there are still certain exports of Chinese paint brushes to Sri Lanka representing a market share of some 5%. It gave no information as to the remaining percentage.

33 See paragraph 28 of Nölle's written observations and the updated calculations submitted at the hearing.

34 The authentic German text in the Neotype case refers to die betreffenden Ausfuhren and the French text to exportations en cause. Paragraph 31 of that judgment is not very clear, but it seems to concern exports from non-market economy countries (which are the subject of che Commission investigation) and not exports from the reference country.

35 In the fourth paragraph of recital 17 to the definitive regulation.

36 At the hearing Nolle produced two documents, the first a fax communication of 4 January 1991 from the Harris firm on the subject of an order for delivery saying, as regards its establishment in Sri Lanka, Production of patnt brushes and artist brushes [by the Harris establishment in Sri Lanka] is, in fact, only adequate for domestic requirements and prices, in view of the limited production, offer no real savings over the prices which [Harris England] can offer you. The second document is a fax report of 31 December 199D from the Netherlands agent van Ravi stating, also with regard to an order for delivery: In view of limited production, Ravi industries is not in a position to offer large quantities...

37 See moreover the fax from Harris referred to in the preceding note.

38 Third paragraph of recital 17 to the definitive regulation.

39 See for example Council Régulation (EEC) No 407/80 of 18 February 1980 imposing a definitive antidumping duty on a certain type of sodium carbonate originating in the Soviet Union (OJ 1980 L 48, p. 1). In that regulation Austria was chosen as the reference country for calculating the normal value of sodium carbonate on the ground in particular that, as in the exporting countries, the raw materials were directly available there (see the sixth recital to the regulation).

40 See, in application of this principle, the adjustments referred to in recital 20 to the definitive regulation.

41 At the hearing Nolle claimed that during the investigation which preceded Council Decision 87/104/EEC (already cited, note 2), it had already challenged the choice of Sri Lanka and suggested other countries, including Taiwan. Then immediately after publication of the notice of reopening of the investigation for the provisional regulation in October 1988 it concentrated on Sri Lanka. In its written observations of 22 November and 15 December 1988, it sent the Commission certain evidence intended to show the suitability of Taiwan.

42 That appears in particular from an article from a specialist periodical quoted at the hearing by both Nolle and the Commission (Paint Brushes, which appeared in the periodical Asian Hardwares in October 1988 attached as Annex 5 to Nölle's observations of 22 November 1988), in which various Taiwanese distributors (and their subcontractors) are described as having a monthly production capacity of 300000 to 3000000 brushes.

43 Sec ilso my Opinion of 7 March 1989 in Case 70/87 Fediol v Commission [1989] ECR 1797. That case raised the question whether the Community institutions' interpretation of the concept of illicit commercial practices in 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 1989 L 252, p. 1) was subject to review by the Court. The Court has also confirmed the existence of the duty of care in other fields of Community law in which the institutions have powers of administration or management. See for example the judgments in Case C-10/88 Italy v Commission [1990] ECR I-1229, paragraph 13 (as regards management of the EAGGF), Case 122/78 Buitoni [1979] ECR 677, and Case 181/84 Man Sugar[]9S5] ECR 2889 (as regards the export licence system); Case 64/82 Tradax Graanhandel v Commission [(1984] ECR 1359 (as regards determination of levies); Case 111/63 Lemmerz-Werke v High Authority [1965] ECR 677, 716 and Case 46/85 Manchester Steel v Commission [1986] ECR 2351, paragraphs 11 and 15 (as regards the ECSC Treaty); Case 417/85 Maurissen v Court of Auditors [1987] ECR 551, paragraphs 12 and 13, Case 125/80 Anting v Commission [1981] ECR 2539, and Case 105/75 Giuffrida v Council [1976] ECR 1395, paragraphs 11 and 17 (as regards the law relating to officials).

44 A classical formulation of this principle is to be found in the judgment in Case 191/82 Fediol v Commission [1983] ECR 2913, paragraph 30.

45 Second paragraph of recital (16) to the definitive regulation.

46 Referring to Annexes XIV to XVI to its written observations of 22 November 1988 and Annexes VI and VII to its written observations of 15 December 1988, from which admittedly it is impossible to deduce clearly whether it is a question of wooden-handled or synthetic-handled brushes. However, Nolle rightly indicated that during the administrative proceedings the Commission never objected to the information it had supplied on this subject.

47 Already cited, note 41.

48 Third paragraph of recita! 16 to the definitive regulation.

49 The fact that the Commission had based the provisional antidumping duty on Article 10(6) of the basic regulation and so had given the Council a strict time-limit for adopting the definitive regulation (see Article 11(5) of the basic regulation) cannot justify the Council's attitude. It may be seen from other regulations that in such circumstances the Council has taken the trouble to investigate alternative reference countries. See for example Council Regulation (EEC) No 541/91 of 4 March 1991 imposing a definitive antidumping duty on imports of barium chloride originating in the People's Republic of China (OJ 1991 L 60, p. 1), particularly recitals 11 and 12.

50 Article 2(12) of the basic regulation.

51 Second and third paragraphs of recital 23 to the definitive regulation.

52 Recital 26 to the definitive regulation.

53 First paragraph of recital 36 to the definitive regulation.

54 It may be seen from recital 5 to Decision 87/104/EEC, moreover, that during the original investigation there were also checks at the premises of two Irish producers.

55 Judgment in Case C-156/87 Gestetner Holdings v Council and Commission [1990] ECR 781.

56 Recital 24 to the definitive regulation.

57 Recital 25 to the definitive regulation.

58 Recita! 26 to the definitive regulation.

59 Recital 27.

60 Recital 29.

61 First paragraph of recital 30.

62 Last paragraph of recital 30 to the basic regulation.

63 Judgments in Joined Cases 260/85 and 106/86 TEC v Council [1988] ECR 5855 and Joined Cases 273/85 and 107/86 Silver Seiko v Coimci7[1988] ECR 5927.

64 Moreover Advocate General Sir Gordon Slynn had observed that the models imported did not compete with the models which the Community importers manufactured themselves (see his Opinion, [1988] ECR 5906).

65 See paragraph 47 of the judgment in TEC v Council and paragraph 39 of the judgment in Silver Seiko v Council

66 Already cited, note 54.

67 See paragraph 47 of the grounds of judgment.

68 See recital 71 to Council Regulation (EEC) No 535/87 of 23 February 1987 imposing a definitive antidumping duty on imports of plain paper photocopiers originaung in Japan (OJ 1987 L 54, p. 12).

69 See paragraphs 57 and 59 of the grounds of judgment and recitals 61, 64 and 65 to Regulation (EEC) No 535/87.

70 See for example Commission Regulation (EEC) No 2812/85 of 7 October 1985 imposing a provisional antidumping duty on imports of electronic typewriters manufactured by Nakajima All Co. Ltd, originating in japan (OJ 1985 L 266, p. 5), and Commission Decision of 18 February 1985 terminating the antidumping proceeding concerning imports of certain footware with fixed ice-skates, originating in Czechoslovakia, Yugoslavia, Romania and Hungary (OJ 1985 L 52, p.48).

71 Decision of 19 January 1987 accepting undertakings given in connection with imports of binder twine originating in Brazil and Mexico and terminating the investtgations (OJ 1987 L 34, p.55).

72 See recital 28 to the decision.

73 Already cited, note 67.

74 See recital 64 to the decision.

75 See the passage in the definitive reguládon already cited, paragraph 40.

76 See the passage in the definitive regulation already cited, paragraph 40.