Opinion of Advocate General Lenz delivered on 15 July 1993

1 Original language: German.

2 OJ 1991 L 111, p. 1.

3 OJ 1986 C 231, p. 4.

4 Commission Regulation No 2409/87 of 6 August 1987 imposing a provisional antidumping duty on imports of ferrosilicon originating in Brazil and accepting undertakings offered by Italmagncsio SA of Brazil and from Promsyrio-Import of the USSR, OJ 1987 L 219, p. 24.

5 Council Regulation No 3650/87 of 3 December 1987 imposing a definitive antidumping duty on imports of ferrosilicon originating in Brazil, OJ 1987 L 343, p. 1.

6 Article 1(3) of Regulation No 2409/87. The applicant was at that time trading as Eletromctalur SA Indústria e Comércio.

7 Council Regulation 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.

8 OJ 1990 C 109. p. 5.

9 Point 11 in the preamble to the contested regulation

10 Point 8 in the preamble to the contested regulation

11 See footnote 7 above.

12 OJ 1980 L 71, p. 90.

13 See point 24 et seq. below.

14 See point 46 et seq. below.

15 See point 53 et seq. below.

16 See point 60 et seq. below.

17 My emphasis

18 Beseler and Williams, Ants Dumping and Ants Subsidy Lau The European Communities, 1986, No 97

19 See notices in OJ 1991 C 173 (compact disc players originating in Japan and the Republic of Korea) and in OJ 1991 C 18 (small screen colour television receivers originating in the Republic of Korea).

20 Even if there is sufficient evidence of dumping emanating from a specific country, there should in that case in general be no information on the exact role of individual companies in such practices. It is the task of the investigation to uncover that information (see Wenig in Dauses, Handbuch des EG-Wirtschaftsrechts, Munich, 1993, K II, note 165). The applicant has, admittedly, alluded to an example tending in the opposite direction: see Commission Regulation (EEC) No 2684/88 of 26 August 1988 imposing a provisional antidumping duty on certain imports of video cassette recorders originating in Japan and the Republic of Korea, OJ 1988 L 240, p. 5 (particularly at points 6 to 12 in the preamble) and Council Regulation (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 (particularly at point 4 in the preamble).

21 See Beseler and Williams (cited in footnote 17), No 8.2.3.

22 Case C 69/89 Nakajima v Council [1991] ECR I 2069 (at paragraphs 26 to 32); Case C 188/88 NMB (Deutschland) and Others v Commission [1992] ECR I 1689 (at paragraph 23)

23 See also the Opinion delivered bv Advocate General Van Gerven on 29 April 1993 in Case C 104/90 Matsushita Electric Industrial v Council [1993] ECR I 4981, at point 19

24 My emphasis

25 There have in practice been a large number of instances in which complainants haver argued that there had been an increase in instances of dumping (see, for example, the Notice of 24 June 1988 of initiation of a review of antidumping measures concerning imports of Fibre Building Board (Hardboard) originating in Czechoslovakia, Poland, USSR, Romania, Sweden and Brazil, OJ 1988 C 165, p. 2).

26 Such a rule would also be totally illogical. The assertion that dumping has ceased must logically be supported by evidence of the same probative value as the evidence required to initiate a proceeding by providing a basis for the suspicion of dumping and injury (see Wenig (cited above at footnote 19), note 179).

27 The Commission evidently also proceeded on this basis when it included the Nakapma company in a review (Article 15) concerning imports ot electronic typewriters originating in Japan see OJ 1990 C 315 (initiation ot the review) and OJ 1991 C 283, p. 13 (inclusion ot the Nakajima company). In the same context, see the initiation of a review (for the purpose of extending existing measures) concerning imports ot certain ball bearings originating in Japan and Singapore (OJ 1983 C 188, p. 8).

28 See the wording of Article 1(3) ot Regulation No 3650/87. The duty shall not apply to products manufactured and exported by [the applicant] (my emphasis).

29 It should be noted incidentaly that, when it included the applicant in the review, the Commission apparently considered the conditions concerning evidence in Article 7(1)(a) of the basic regulation to be applicable the relevant notice (cited in footnote 7 above) is expressly based on Article 7(1)(a) (third paragraph, second column), which concerns the initiation ot the review and thus the case in which those conditions indubitably apply

30 See footnote 7 above.

31 OJ 1988 L 209, p. 1.

32 It would appear to be established since the Court's judgment in Nakajima (footnote 21 above) that the basic regulation operates exclusively on the basis of this consideration.

33 Joined Cases 239/92 and 275/82 Allied Corporation and Others v Commission [1984] ECR 1005, at paragraphs 11 to 14; Case 240/84 NTN Toyo Bearing and Others v Council [1987] ECR 1809, at paragraphs 4 to 7.

34 See in particular the judgment in Case 255/84 Nachi Fujiko sht Corporation v Council [1987] ECR 1861, at paragraphs 45 to 49

35 Joined Cases 273/85 and 107/86 Silver Seiko and Others v Council [1988] ECR 5927, at paragraph 18; Case 301/85 Sharp Corporation v Council [1988] ECR 5813, at paragraph 10; Case C-69/89 Nakajima v Council [1991] ECR I-2069, at paragraphs 65, 123 and 124; see also my opinion in Nakajima, at points 85 and 93.

36 See Wenig, cited above at footnote 19.

37 See also the views of the Court on the interpretation of Article 2(3)(b)(ii) of the basic regulation (Case C-105/90 Goldstar v Council [1992] ECR I-677, at paragraphs 35 to 37).

38 See the Council's reference to this fact p 6 of its defence.

39 The applicant is now also arguing this latter point in its second plea before the Court.

40 This was how the Commission proceeded in, inter alia, the investigation which led to the adoption of Regulation No 3650/87 (see footnote 5 above); see also point 9 in the preamble to Regulation No 2409/87 (footnote 3 above). Further examples include: Regulation No 4062/88 (OJ 1988 L 356. p. 47). points 40 to 42 in the preamble; Regulation No 2357/87 (OJ 1987 L 213 p.32), point 12 in the preamble, Regulation No 2640/86 (OJ 1986 L 239. p 5), point 31 in the preamble; Regulation No 2516/86 (OJ 1986 L 221, p. 16), points 36 and 37 in the preamble. This practice is analogous to the construction of the normal value, for which in certain cases selling, general and admin istrative expenses and/or profit are calculated on the basis of figures relating to other companies in the country of exportation (Case 301/85 Sharp Corporation v Council [1988] ECR 5813, at paragraphs 7 to 10; Joined Cases 260/85 and 106/86 Tokyo Electric (TEC) and Others v Council [1988] ECR 5853, at paragraph 15, and Case C 69/89 Nakajima v Council, cited above, at paragraph 59 et seq., in particular paragraph 67).

41 My emphasis.

42 My emphasis.

43 See also the citation on p. 30 of the applicant's reply from point 12(iii) in the preamble to Commission Regulation No 2623/88 (OJ 1988 L 235, p. 5).

44 According to the 27th recital in the preamble to Commission Regulation No 595/85 of 7 March 1985 imposing a provisional antidumping duty on imports of certain hydraulic excavators originating in Japan (OJ 1985 L 68, p. 13), adopted pursuant to Council Regulation No 2176/84, which first provided for a fixed investigation period, it is in conformity with the Commission's general practice to limit the scope of the invesriga-tion to producers who actually exported to the Community during the investigation period. In contrast, see Commission Regulation No 2017/81 of 15 July 1981 imposing a provisional antidumping duty on phenol originating in the United States of America (OJ 1981 L 195, p. 22), particularly the second paragraph in the left column on p. 23, adopted pursuant to Regulation No 2017/81, the basic regulation (OJ 1981 L 195, p. 22). In the present case, the Commission appears to have departed from this practice with regard to those exporters who had expressed their intention to export to the Community, had cooperated in the investigation and had given undertakings with regard to prices. In their case, however, only the normal value was calculated with a view to possible acceptance of the undertakings (see points 15, 23 and 43 in the preamble to the contested regulation).

45 See footnote 42.

46 See Wenig (footnote 19), note 179. The position differs to that extent from that of the initial investigation, fiere the companies which did not export during the investigation period arc made subject to the residua! duty but can request a review under Article 14 of the basic regulation if they resume exports or comply with the one-year period requirement set out in that article (see point 43 in the preamble to Council Regulation No 1768/89 of 19 June 1989 imposing a definitive anti dumping duty on imports of video cassettes originating in the Republic of Korea and 1 long Kong, collecting definitively the provisional duty and terminating the anti dumping proceeding with regard to the imports of video tape reels originating in the Republic of Korea (OJ 1989 L 174, p. 1)

47 In the view of Wenig (cited above at footnote 19) (note 181), even a reformant) m petus should be possible.

48 The Council admitted in its rejoinder that the contested regulation, unlike the initial investigation results, is not based on the presumption that there was a compensation agreement between the applicant and Considar USA. Likewise, the Commission admitted at the hearing that the determinant invoice (to Considar) dates from 31 August 1989.

49 See Annex II to the defence.

50 Page 26, footnote 16.

51 Pages 24 and 31 of the reply.

52 Second paragraph of p. 25 and first paragraph of p. 26 of the reply.

53 Page 28 of the reply.

54 Pages 24 and 31 of the reply.

55 See in particular points 75 and 76 above.

56 See in particular point 74 above.

57 Beseler and Williams, No 4 4.3.1., Landsutcl, Dumping on Außenhadels und Wett-bewerbsrecbt, 1987. p. 27.

58 My emphasis.

59 See, for example, point 75 ct scq. in the preamble to Com mission Regulation No 1418/88 of 17 May 1988 imposing a provisional anti dumping duty on imports of serial-impact dot matrix printers originating in Japan (OJ 1988 L 130, p. 12).

60 Second indent of Article 2(13); my emphasis.

61 In this regard, the Community institutions have not submitted any contrary arguments. In addition, the Commission (according to the undisputed submission of the applicant) asked the applicant in its questionnaire about transactions invoiced during the investigation period.

62 With regard lo injury, the Court has in fact accepted that account may be taken of data relating to the period prior to the investigation period (Case C 121/86 Epicbeiriseon Metallefakon Vtomich-timhon Kai Naftiltakon and Others v Council [1989] ECR 3919, at paragraph 20; see also the judgment in Nukajima, cited above. Advocate General Tesauro, however, has correctly pointed out that the investigation period must cover the examination of injury (opinion in Case C 121/86 Eptchertseon, cited above, at p. 3939 et seq.) See also my Opinion in Nakajima, which supports that view (point 234).

63 Case 258/84 Nippon Seiko KK v Council [1987] ECR 1923, paragraph 21

64 See the express restriction of this third pica at pp 33 and 35 of the reply

65 Case 49/88 Al-Jubail Fertilizers v Council [1991] ECR I-3187

66 Page 14 of the application

67 See previous footnote.

68 Page 39, first and last sentences, and p. 40 of the reply.

69 Page 39 last sentence of the reply.

70 See point 20 of the Council's rejoinder; to the sante effect, see the observations of the Commission in the written pro ccdurc (p. 12 of its observations) and at the hearing (p 44 of the transcript of the hearing).

71 Paragraph 15 of the judgment.

72 Paragraph 17 of the judgment in Al-Jubail, my emphasis.

73 The Court has consistently so defined in its case-law the requirement to state reasons: as regards the sphere of antidumping, see for example the judgment in Case 256/84 Koyo Seiko v Council [1987] ECR 1899, at paragraph 29.

74 See paragraph 20 of the Al Jubad judgment.

75 See footnote 47, above, and the text relating to u

76 See Annex III to the defence.

77 See point 95 above.

78 See, in a similar case concerning Article 15 of the ECSC Treaty, the judgment in Joined Cases 275/80 and 24/81 Krupp v Commission [1981] ECR 2489, paragraph 13.

79 See point 109, above.