Opinion of Advocate General Van Gerven delivered on 29 April 1993

1 Original language: Dutch.

2 OJ 1990 L 13, p 21. That regulation was preceded by Com mission Regulation (EEC) No 2140/89 of 12 July 1989 imposing a provisional anti dumping duly on imports oi certain compact disc players originating in Japan and South Korea. OJ 1989 I. 205, p. 5.

3 MEI is one of the nine Matsushita companies affected by the amti dumping procedure concerning CD players. The eight others are MET (see below at paragraph 5 of my Opinion) and seven associated importers within the Community

4 OJ 1988 I. 209, p. 1.

5 Sec Reguladon (EEC) No 2140/89 (provisional antidumping duty), Recitals 36 to 45.

6 See Recitals 30 and 31 of the contested regulation. The Institutions did, however, elaborate their calculation of the normal value taking into account only sales by related distributors to a specific category of buyers, namely buyers acting as wholesale distributors. This method is termed selective normal value; see Recitals 24 to 28 of the contested decision.

7 MEI docs not dispute that the Institutions had to determine normal value on the basis of sales to the two unrelated dis tributors (indeed, at the same prices as those charged to the related distributors). In the present case it accepts the prac tice of the Institutions to leave out of account on the ground of non reprcscntativity sales prices in the country of export involving a volume lower than 5% of export sales.

8 Sec footnote 3 above.

9 Case C-175/87 Matsushita v Council [1992] ECR I-1409 (antidumping duty on imports of plain paper for photocopiers originating in Japan).

10 Ibid., paragraph 10.

11 lb:d., paragraphs 11 to 15

12 The question is therefore not whether or under what conditions distributors may be regarded as related or associated. According to MEI, and not denied by the Council or the Commission, the practice of the Institutions is to regard an equity participation of 5% as significant enough. As to the `predominant' nature of the sales to related distributors sec footnote 6 above.

13 Rejoinder of the Council, paragraph 15.

14 Case 250/85 Brother v Council [1988] ECR 5683; in Joined Cases 277/85 and 300/85 Canon v Council [1988] ECR 5731; Joined Cases 260/85 and 106/86 Tokyo Electric and Others v Council [1988] ECR 5855, and in Joined Cases 273/85 and 107/86 Silver Seiko and Others v Council [1988] ECR 5297 (antidumping duty on electronic typewriters), in particular Case 250/85 Brother v Council, at paragraph 16, as reiterated in paragraph 12 of the judgment in Case C-175/87 cited in paragraph 14 above.

15 Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade. OJ 1980 L 71. p. 90.

16 See the Second Recital in the preamble to the anti dumping regulation.

17 Case C 69/89 Nakajimam v Councli [1991] ECR I 2069, paragraphs 34 to 37 and Case C 105/9C Goldstar v Council [1991] ECR I 677, paragraph 33.

18 Cited at footnote 13 above.

19 It is clear írom the description of MEI's sales organisation given at paragraph 4 above that I IAD accepts purchase orders only from distributors.

20 See the fax to the Commission dated 31 October 1989 contained in Annex 11 to MEI's application.