Opinion of Mr Advocate General Van Gerven
Mr President,
Members of the Court,
1. In July 1989, the Commission received a complaint lodged by three trade associations (Associazone Nazionale Industrie Elettrotechniche ed Elettroniche (ANIE), Italy; Groupement des Industries de Matériels d'Equipement Électrique et de l'Électronique Industrielle Associée (Gimelec), France; and Asociación Nacional de Fabricantes de Bienes de Equipo (Sercobe), Spain) representing Community producers of single-phase, two-speed electric motors used for the manufacture of low-speed washing machines (hereinafter referred to as electric motors).According to the complaint, imports of similar electric motors originating in Bulgaria, Romania and Czechoslovakia were leading to dumping practices and therefore causing injury to the Community industry. The Commission was of the opinion that the complaint was accompanied by sufficient evidence and decided to initiate an antidumping procedure.
2. Two of the three trade associations which lodged the complaint, namely Gimelec and Sercobe, and two Italian producers of electric motors, namely Sole SpA and Nuova IBMEI SpA, brought a joint action for a declaration that the contested decision was void. In support of their claim the applicants put forward the two following submissions: the Commission was wrong in concluding that imports of electric motors originating in Romania and Czechoslovakia did not cause significant injury to the Community industry (point 17 of the contested decision); furthermore, the Commission was wrong in eliminating imports originating in Bulgaria from its study (point 7 of the contested decision).
Admissibility
3. The applicants contend, and the Commission does not challenge this point, that it follows from the judgments in Fediol and Timex that they have a right to bring this action.
The submission on the absence of injury resulting from imports originating in Romania and Czechoslovakia
4. In point 17 of the contested decision the Commission comes to the conclusion that imports of electric motors originating in Romania and Czechoslovakia have not caused significant injury to the Community industry in question.
5. Before I consider the arguments put forward by the applicants to show that those two grounds are mistaken, it should be pointed out that, according to Article 4(2) of the basic regulation, as was stated in the judgment in Neotype Techmashexport v Commission and Council at paragraph 50, the examination of injury must take account of a whole series of factors and no single factor can in itself be decisive. It may be seen from the recitals in the preamble to the contested decision that it is not exclusively based on the two grounds mentioned by the applicants. On the basis of the criteria laid down by Article 4(2), the Commission has taken account of a whole series of factors, namely: the volume of imports both in absolute terms and relative to consumption in the Community (points 8 and 9); the price of the imports (point 10); Community production (point 11); utilization of the industry's production capacity (point 12); the Community industry's sales and market share (points 13 and 14); Community producers' selling prices (point 15); and their profits (point 16).
The reduction in the market share of imports originating in Romania and Czechoslovakia
6. In the first place the applicants express reservations as to the reliability of the data used by the Commission to determine the volume of exports from Romania and Czechoslovakia, which are taken exclusively from the answers to the antidumping questionnaires supplied by the Romanian and Czechoslovak exporters, which were not checked in any way and do not correspond to data available to the applicants.
7. Next the applicants allege that the Commission was guided by the idea that Article 4(2)(a) of the basic regulation makes an increase in the market share of the imports at issue a condition sine qua non for a determination of injury within the meaning of that article. They think that by pursuing that idea the Commission arrived at an incorrect interpretation of that provision.
8. The applicants also criticize the fact that the Commission did not analyse the injury in relation solely to the free market for electric motors. They observe that when a part of Community production is sold within the captive market of an integrated group, that part cannot be regarded as being the subject of normal trading transactions and so is not subject to the effects of the imports causing the undercutting. They consider that the Commission manifestly discriminated against them by refusing for no reason to follow in this case its consistent practice of taking account only of the free market only, in a situation such as the one referred to. If the Commission had followed that practice, they claim, it would have been found that the imports in question represented not only a larger market share (39 to 40%, with over 50% on the Italian market), but also that that share had remained stable or had increased slightly between 1986 and 1989. Finally they observe that even if the market share of imports in relation to the whole market could be taken into consideration, the level of that share — nearly 25% — was still significant.
9. In this connection it is appropriate to call to mind that, in accordance with Article 4(2) of the basic regulation, the examination of injury must involve: (a) the volume of imports; (b) the price of imports; and (c) the impact of the imports.
10. The actual prices and profits do not however play the same role when it is a question of assessing the volume of the imports referred to in Article 4 (2) (a) of the basic regulation. Under that provision the volume of imports must be examined to ascertain:
11. It is true that in certain specific proceedings the Commission has referred solely to the free market to express trends in the market share of the dumped imports. However, it cannot be said that the Commission's attitude in such proceedings represents a consistent practice. Thus the Commission emphasizes that in the antidumping proceeding concerning imports of multiphase electric motors, the Community institutions, as in this case, assessed the volume of imports in relation to the whole market. Moreover it sets out several facts — not challenged by the applicants — leading it to the conclusion that the share of imports in the whole market might in this case give a better picture of market trends because the two segments of the market are interconnected. Thus it observes that electric motors, whether imported or of Community origin, are sold on the same market and used for the same purpose, namely the manufacture of washing machines. Further, the producers of electric motors who are linked with washing-machine manufacturers (namely the French company Selni, linked to the Thomson group, and the Italian company Sole, at present linked to the Electrolux group) also sell to other washing-machine manufacturers and demonstrably charge the same prices on such sales as on sales to the washing-machine manufacturers to whom they are linked. Finally, the washing-machine manufacturers in question (that is, those of the Thomson and Electrolux groups) also buy imported electric motors as well as motors produced by the two so-called independent Community producers (namely the Spanish company IBMEI and its Italian subsidiary Nuova IBMEI).
12. At the hearing the applicants claimed that the situation in this case and that in the proceedings which led the Council to impose an antidumping duty with regard to imports of multiphase electric motors by Regulation No 864/87 are identical.
The effect of the imports on the prices charged by the Community producers
13. In points 15 and 16 of the contested decision, the Commission considers the selling prices and profits of the Community producers. In point 17 it draws the following conclusion:
14. The applicants claim first that that conclusion is based on a statement of reasons which does not comply with the requirements of Article 190 of the EEC Treaty in view of the fact that the identity of the Community producers is not mentioned and that the reasons given partially overlap.
15. Next the applicants assert that the statement of reasons on which the conclusion set out in point 17 is based suffers from a basic inconsistency in the form of a systematic search for reasons other than the impact of the imports in question to explain any deterioration in financial results of the Community producers. An analysis of the situation of each Community producer, it is claimed, shows this inconsistency. In this connection the applicants observe in particular that the Commission, whilst it had taken the whole market as its reference in considering the volume of imports, was quick to attribute losses recorded by one producer to the group's purchasing policy. The applicants also claim that the Community producers' increase in selling prices during the investigation period cannot prove the absence of injury in so far as that increase (of some 3 or 4%) reflected the increase in production costs resulting from the increase in the world copper price in 1989 and that it did not therefore enable the Community producers to redress their financial situation.
16. In this respect it should be remembered that the Community institutions have a wide discretion when evaluating complex economic situations (see in particular the judgment in Nakajitna All Precision v Council, previously cited, at paragraph 86). That is especially the case as regards the choice and evaluation of the relevant economic factors for determining the impact of dumped imports on Community production. In this case the Commission attached great importance to the finding that the Community producers had been able to increase their selling prices during the period covered by the investigation. This economic factor is expressly mentioned in the indicative list set out in Article 4(2)(c) of the basic regulation (sixth indent):
17. The Commission first observed that it was not able to check that argument because two undertakings accounting for almost half the Community production (Sole and Nuova IBMEI) had supplied no data making it possible to assess their financial situation in the years preceding the investigation period. That is an important observation. It may be seen from the actual wording of Article 4(2)(c) of the basic regulation that the impact of imports must be assessed in terms of trends in the relevant economic factors. Consequently valid conclusions on the impact of imports can be drawn only if the financial situation of the Community producers at the time of the investigation can be compared to that of previous years. Such a comparison was all the more necessary in this case because the volume of imports in question had not significantly increased between 1986 and 1989.
18. As regards the impact of the increase in the world price of copper on production costs, the Commission stated at the hearing that a check on the invoices paid during the investigation period did not make it possible to confirm such an impact for all the Community producers. In fact the Commission pointed out, and the applicants did not challenge the point, that the prices invoiced to some producers during that period did not reflect the increase in the world price of copper over that period. In these circumstances it seems to me that the Commission was justified in thinking that the increase in production costs during the investigation period resulting from the increase in the price of copper during that period had not been proved. Moreover the applicants have not provided any evidence capable of refuting the Commission's conclusion on this point.
19. In view of the foregoing considerations it seems to me that in concluding that the apparent deterioration in the Community producers' financial results could not be attributed to the imports in question, the Commission did not exceed the limits of its discretion.
The plea regarding imports originating in Bulgaria
20. In the antidumping complaint the trade associations drew the Commission's attention to the threat of injury arising from imports of electric motors originating in Bulgaria. It may be seen from an extract from that complaint, annexed to the application, that they did so in the following terms :
21. The applicants consider that the elimination of exports from Bulgaria lacks any foundation and they claim a declaration that the decision is void.
22. The same is true of the argument put forward by the applicants in the reply, to the effect that the Commission ought to have checked not only with the Spanish customs but also with the French and Italian customs whether there had been any imports.
Conclusion
23. I therefore propose that the Court should dismiss the application and order the applicants to pay the costs.
1 Original language: French.
2 Jļf electric moiors concerned fall within CN Code 85014090. It should be noted that these motors are used only in washing machines destined for markets in the south of the Community. As a result of the damper and less sunny climate in the northern part of the Community, washing machines are sold there with motors capable of spin-drying at a higher speed.
3 Notice of initiation of an antidumping proceeding concerning imports of certain single-phase, two-speed electric motors originating in Bulgaria, Romania and Czechoslovakia (OJ 1989 C 286, p 11)
4 Decision terminating an antidumping proceeding concerning imports of certain single-phase, two-speed electric motors originating in Bulgaria, Romania and Czechoslovakia (OJ 1990 L 202, p. 47).
5 Case 191/82 [1983] ECR 2913.
6 Case 264/82 [1985] ECR 849.
7 Regulation (EEC) No 2423/88 of 11 July 1988 on protection against dumped or subsidized imports from countries not members of the EEC (OJ 1988 L 209, p. 1).
8 Opinion delivered on 21 March 1991 in Case C-358/89 [1991] ECR I-2501 ; see in particular paragraphs 18 to 22.
9 Joined Cases C-305/86 and C-160/87 [1990] ECR I-2945.
10 In German insbesondere; in French notamment; in Danish iszr; in Spanish especialmente; in Italian soprattutto; in Greek Ιδίως; in Dutch in hel bijzonder; in Portuguese nomeadamente.
11 Council Regulation (EEC) No 864/87 of 23 March 1987 imposing a definitive antidumping duty on imports of standardized multiphase electric motors having an output of more than 0.75 kW but not more than 75 kW, originating in Bulgaria, Czechoslovakia, the German Democratic Republic, Hungary, Poland and the USSR, and definitively collecting the amounts secured as provisional duties (OJ 1987 L 83, p. 1). The Court considered that regulation in the judgments delivered on 11 July 1990 in Joined Cases C-304/86 and C-185/87 Enitalv Commission and Council, Joined Cases C-305/86 and C-160/87 Neotype Techmashexport v Commission and Council previously cited, Joined Cases C-320/86 and C-188/87 Stanko France v Commission and Council [1990] ECR I-3013, Case C-157/87 Electroimpex v Council [1990] ECR I-3021 and Case C-323/88 Semes v Directeur des Services des Douanes de Strasbourg [1990] ECR I-3027.
12 [1991] ECR I-2069.
13 See judgment in Joined Cases 273/85 and 107/86 Silver Seiko v Council [1988] ECR 5927 at paragraph 40.