Opinion of Advocate General

Mr President,

Members of the Court,

1. The point at issue in this case is a veryprecise one, namely the interpretation of a table in Article 1(3) of Council Regulation (EEC) No 374/87 of 5 February 1987, imposing a definitive antidumping duty on imports of housed bearing units (hereinafter bearing units) originating in Japan.

Facts and legal background

2. By Regulation (EEC) No 2516/86 of 4 August 1986 the Commission imposed a provisional antidumping duty on imports of bearing units originating in Japan. That regulation was confirmed by the Council by Regulation No 374/87, Article 1(3) of which reads as follows:

3. Findling has been importing ball bearings from Japan since 1963. On 28 March 1988 it lodged the necessary customs documents with a view to the importation of bearing units bearing the mark NACHI, manufactured by the Japanese company Asahi Seiko Ltd (hereinafter Asahi) to the order of another Japanese company, Nachi Fujikoshi Corp. (hereinafter Nachi). The bearing units were sold to it by the Japanese companies Gloria International Corp. (hereinafter Gloria) and Ehara Industries Ltd (hereinafter Ehara). An antidumping duty of 13.39% amounting to a total of DM 6789.58 was charged, inter alia, for those imports.

4. In the order for reference it is also stated that initially the Commission — as appears from a telex message of 16 September 1988 to the Federal Ministry of Economic Affairs and also, it seems, from a letter of 18 October 1988 to Findling, although in that case with reference to another regulation — shared the Hauptzollamt's view. However, in letters to the court of reference of 12 March and 29 October 1990 and to the Federal Ministry of Economic Affairs of 13 March 1990, the Commission stated that the exporters Gloria and Ehara were mere intermediary companies (middlemen or trading houses) who were not subject to a special antidumping duty. In the absence of such a special antidumping rate the antidumping duty to be applied was that provided for the producer or the producer-exporter of bearing units. The purpose of the table in Article 1(3) of Regulation No 374/87, the Commission added in that correspondence, was to lay down specific rates not for exporters but for producer-exporters.

5. The court of reference took the view that the case raised a problem of the interpretation of Community law and by order of 7 May 1991 referred the following two questions to the Court of Justice for a preliminary ruling:

Literal or teleological application of Regulation No 374/87?

6. With its first question the court of reference is essentially asking whether the system introduced by Regulation No 374/87 must be interpreted literally or ideologically.

7. On the other hand the Commission now takes the view, contrary to that expressed in the aforesaid correspondence, that the regulation must be applied in accordance with its wording. In support of its view it outlines the background to this problem of interpretation. At the time of the investigation which preceded the adoption of Regulation No 2516/86 it had established that there were three groups of traders in Japan. A first category produced and exported bearing units themselves; they were therefore producers and exporters. A second group produced the housings themselves but purchased the bearings from other producers so as to sell them and export them subsequently under their own mark (Nachi and Koyo); consequently they were not producers but exporters within the meaning of the antidumping legislation. For that group an individual antidumping rate was therefore prescribed as indicated in Recital 14 to Regulation No 2516/86. The third category was that of the pure business houses whose operations consisted entirely in purchasing products from the most varied producers in order to resell them under their original trademark.

8. As regards specifically the question of the interpretation of Regulation No 374/87, the Commission acknowledges that a literal interpretation in this case entails consequences which had clearly not been intended concerning the antidumping duty. To rectify this its officers opted, after a first investigation, for a broad interpretation of Regulation No 374/87. As, however, it is doubtful whether the clear wording of the regulation leaves room for interpretation of any kind, the Commission came to the conclusion, after a thorough investigation and evaluation of the various legal consequences, that the principles of legal certainty and clarity of the law must prevail, in particular so as to guarantee a uniform application of the various features of customs legislation within the Community.

9. The court of reference thinks that a teleological interpretation is tenable. The logical conclusion of the idea advocated by Findling, and — at least at that time — by the Commission, of the aim of Regulation No 374/87 is that, for the application of the individual antidumping rates set out in relation to the manufacturer's brand or trademark in items 1 to 7 inclusive of the table, it is enough to show that the bearing units were manufactured by or for the corresponding undertaking (listed in the column headed Exporters). The residual antidumping duty of 13.39% provided for Other exporters in item 8 of the table should therefore be applied only where that is not shown. The actual result in this case would thus be that Findling should pay only the antidumping duty of 2.24% due according to item 3 of the table.

Proposed interpretation

10. It seems to me that, to begin with, for the question whether a literal or a teleological interpretation is to be preferred, it is necessary to apply the Court's consistent caselaw according to which:

11. In brief, úit purpose of Community antidumping measures is to offset the harmful consequences arising from exportation of products to the Community at a price below the normal value of similar products in the country of origin or export. One of the fundamental rules of the antidumping system which the Community has established — in accordance with its international commitments, in particular those resulting from the GATT Anti-Dumping Code — is that antidumping duties must be no higher than the dumping margin (provisionally estimated or definitively established) and that they must be lower where lesser duties would be adequate to remove the injury. In other words they must be necessary in order to remove the injury caused by the dumping. It is precisely for that purpose — and this too is a requirement under the GATT code — that Article 16 of the basic regulation provides for a right to reimbursement for an importer who proves that the duty charged amounts to more than the actual dumping margin.

12. To return to the details of this case, it is clear — and the Commission expressly admits it (see section 8 above) — that a literal application of the table leads to the charging of an antidumping duty which is quite out of proportion to the aim pursued by Regulation No 374/87 — and, one might add, by the Community and GATT antidumping rules in general. It is impossible to claim that the duty thus levied is necessary to offset the injury caused by dumping.

13. A convincing argument that the approach mentioned above is in conformity with the object of the Community legislature was put forward by the Commission itself at the time (see section 4), namely that the Council in Regulation No 1739/85 expressly adopted this procedure:

14. Certain objections may undoubtedly be raised against the solution recommended here. Thus the Commission points out that a broad interpretation — according to which, be it repeated, imports effected through intermediate exporters are subjected to the individual rates set out with regard to items 1 to 7 in column 4 for imported products of the manufacturers mentioned in column 2 — would considerably reduce the safety-net function of the residual rate set out in column 4 of item 8, that it would call forth a torrent of lawsuits and hence would impair legal certainty and the uniform application of the table by the numerous national customs officers.

15. At the hearing the Commission also argued that Findling had neglected for years to approach the Commission in accordance with Article 14 of the basic Community regulation with a view to obtaining a modification or cancellation of the antidumping payments which it had incurred.

16. As the answer to the first question is in the affirmative there is no need for me to go into the second question raised by the court of reference.

Conclusion

17. Having regard to the foregoing considerations I suggest that the Court should answer the first question as follows:

1 Original language: Dutch.

2 Council Regulation (EEC) No 374/87 of 5 February 1987 definitively collecting the provisional antidumping duty and imposing a definitive antidumping duty on imports of housed bearing units originating in Japan (OJ 1987 L 35, p. 32).

3 According to Article 1(2) of Regulation No 374/87, these bearing units are cast or pressed steel housings fitted with ball bearings.

4 OJ 1986 L 221, p. 16.

5 OJ 1985 L 167, p. 3.

6 OJ 1984 L 193, p. 1.

7 In this connection the Commission refers to Council Regulation (EEC) No 112/90 of 16 January 1990 imposing a definitive antidumping duty on imports of certain compact disc players originating in Japan and the Republic of Korea and collecting definitively the provisional duty, OJ 1990 L 13, p. 21.

8 OJ 1990 L 256, p. 1.

9 Judgment in Case 292/82 Merck v Hauptzollamt Hamburg- Jonas [1983] ECR 3781, paragraph 12; see also judgment in Case 337/82 St Nikolaus Brennerei v Hauptzotíamt Krefeld [1984] ECR 1051, paragraph 10.

10 Agreement on implementation of Article VT of the General Agreement on Tariffs and Trade; the text is published in OJ 1980 L 71, p. 90.

11 Article 13(3) of Council Regulation (EEC) No 2423/88 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. The same provision appeared in the previous basic regulation, Council Regulation (EEC) No 2176/84 of 23 July 1984, OJ 1984 L 201, p. 1, on the basis of which Regulation No 374/87 was adopted. It implements Article 8(3) of the GATT Anti-Dumping Code.

12 That is exactly what the Council is required to ascertain when it adopts an antidumping regulation; judgment in Case 53/83 Allied Corporation v Council [1985] ECR 1621, paragraph 18.

13 Article 8(3), second sentence.

14 [1991] ECR I-2069.

15 Judgment in Case C-69/89, in particular paragraphs 34 to 37; this was recendy confirmed by the Court in its judgment in Case C-105/90 Goldstar v Council [1992] ECR I-677, paragraph 33.

16 Recital (11) in the preamble.