Opinion of Mr Advocate General Van Gerven delivered on 14 November 1991

1 Original language: Dutch.

2 OJ 1990 L 13, p. 21. In Case C-104/90 Matsushita Electric Industrial also seeks the annulment of Regulation No 112/90 but on grounds other than those relied upon by Goldstar.

3 OJ 1988 L 209, p. 1.

4 In its judgments of 14 March 1990 in Joined Cases C-133/87 and C-150/87 Nashua Corporation v Commission and Counal [1990] ECR I-719, at paragraph 3, and in Case C-156/87 Gestetner Holdings v Council and Commission [1990] ECR I-781, at paragraph 3, the Court described an OEM as a supplier under its own brand of products manufactured by other undertakings.

5 OJ 1989 L 205, p. 5.

6 Judgment of 5 October 1988 in Joined Cases 277 and 300/85 Canon v Council [1988] ECR 5731.

7 Agreement on implementation of Article VI of the General Agreement on Tariffs and Trade, adopted 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 to 1979 trade negotiations (OJ 1980 L 71, p. 1).

8 Commission Regulation (EEC) No 3643/84 of 20 December 1984 (OJ 1984 L 335, p. 43), in particular the ninth recital in the preamble, and Council Regulation (EEC) No 1698/85 of 19 July 1985 (OJ 1985 L 163, p. 1), in particular the fifth recital in the preamble.

9 Judgment of 5 October 1988 in Case 250/85 Brother v Council [1988] ECR 5683.

10 See the judgment in Canon, cited in footnote 5, at paragraph 14.

11 Judgment of 11 July 1990 in Joined Cases C-305/86 and C-160/87 Neotype Techmashexport v Commission and Council [1990] ECR I-2945.

12 Judgment of 22 October 1991 in Case C-16/90 Nolle v Hauptzollamt Bremen-Freihafen [1991] ECR I-516 at paragraph 22.

13 Judgment of 5 October 1988 in Joined Cases 273/85 and 107/86 Silver Seiko v Counal [1988] ECR 5927.

14 In response to a question from the Court concernine the appropriate level of an absolute figure, Goldstar's representative at the hearing stated that 50 units was a fair criterion.

15 See, in particular, paragraph 21 of Annex VI to Goldstar's application.

16 In its view this should also have been done for the other models, a contention which I have rejected above.

17 Judgment of 7 May 1991 in Case C-69/89 Nakajima AU Prensioni Coxnci/[1991] ECR I-2069.

18 Since Goldstar does not contest the calculation of the production costs including an amount for expenses, I shall refer henceforth only to the provisions of that article which relate to the determination of the amount to be added for profit. For the sake of brevity, I shall confine myself to producers, and not to exporters.

19 See Brother (at paragraph 18), Canon (at paragraph 26), Silver Seiko (at paragraph 16) and Nakajima (at paragraph 64).

20 Unofficial translation.

21 For a definition of an OEM, see footnote 3.

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

23 Council Reguládon (EEC) No 501/89 of 27 February 1989 imposing a definitive antidumping duty on imports of certain video cassette recorders originating in Japan and the Republic of Korea and definitively collecting the provisional duty (OJ 1989 L 57, p. 55).

24 Commission Regulation (EEC) No 3232/89 of 24 October 1989 imposing a provisional antidumping duty on imports of small screen colour television receivers originating in the Republic of Korea (OJ 1989 L 314, p. 1).

25 The uniform rate used in the three procedures mentioned above amounts to 5% of the average production costs for the products concerned. The rate used in this case amounts to 30% of x% (being Goldstar's profit rate on domesuc own-brand sales, which I shall not disclose on grounds of confidentiality) of Goldstar's producüon costs, namely (30% of x% =) y%.

26 Counril Regulation (EEC) No 3651/88 of 23 November 1988 imposing a definitive antidumping duty on imports of serial-impact dot -matrix printers originating in Japan (OJ 1988 L 317, p. 33).

27 See paragraph 40 of the definitive regulation.