Opinion of Advocate General Lenz delivered on 16 March 1994

1 Original language: German.

2 OJ 1991 L 326, p. 1.

3 See paragraph 3 of Commission Regulation (EEC) No 1386/91 of 23 May 1991 imposing a provisional antidumping duty on imports of gas-fuelled, non-refillable pocket flint lijghters originating in Japan, the People's Republic of China, the Republic of Korea and Thailand (OJ 1991 L 133, p. 20).

4 OJ 1988 L 209, p. 1.

5 The notice was published in OJ 1990 C 89, p. 3.

6 The actual wording was, We have no domestic sales.

7 For the wording of the relevant provisions, see sections 43 and 44, below.

8 See footnote 2.

9 Loc. cit. (footnote 2), paragraph 10.

10 Loc. cit. (footnote 2), paragraph 11.

11 Loc. cit. (footnote 2), paragraph IS.

12 The only difference between the final version and the Commission's proposal is that the latter refers to the basic regulation whereas the passage quoted cites the reference number of the regulation.

13 For a survey, see, for instance, Wang Xiaoye, Das EG-Antidumpingrecht und die Ausfuhren der VR China in die EG, RabelsZ 1993, p. 685, at p. 688 et seq.

14 See section 8, above.

15 The applicant's representatives seem to have based them-selves on the fact, not only that two of the applicant's shares are held by citizens of Hong Kong, but also that a 50% interest in Gao Yao (China) — which holds the rest of the shares in Gao Yao (HK) — is owned by Hong Kong citizens.

16 Here, too, the Court was concerned with calculating nor-mal value.

17 Judgments in Case 250/85 Brother v Council [1988] ECR 5683, paragraph 16, in Case C-175/87 Matsushita v Council [1992] ECR I-1409, paragraph 12, and in Case C-104/90 Matsushita v Council [1993] ECR I-4981, paragraph 9.

18 Judgment in Case C-358/89 Extramet Industrie v Council [1991] ECR I-2501, paragraph 15, which contains extensive references to earlier case-law; cf. also the Opinion of Mr Advocate General Jacobs in that case, [1991] ECR 2507, at 2510 et seq.

19 Cf., for instance, the circumstances underlying the judgment in Joined Cases 294/86 and 77/87 Technointorg v Commission and Coundl [1988] ECR 6077.

20 See paragraph 22 of Regulation No 1386/91 and paragraph 12 of Regulation No 3433/91, in which the Council confirmed that calculation.

21 Cf. Case C-175/87 Matsushita v Council (cited in footnote 16).

22 Judgment in Case C-104/90 Matsushita v Council (cited in footnote 16).

23 See, for example, the judgment in Case 118/77 ĪSO v Council [1979] ECR 1277.

24 Judgment in Case 307/81 Alusuisse [1982] ECR 3463, paragraph 13.

25 For further discussions, see, for instance, Anthony Arnull, Challenging EC anti-dumping regulations: The problem of admissibility [1992] ECLR, 73, at 76 et seq.

26 Cited in footnote 17, at 2520 et seq.

27 Judgment in Case C-69/88 Nakajima v Council [1991] ECR I-2069, paragraph 108.

28 Judgment in Case C-49/88 Al-Jubail Fertilizer v Council [1991] ECR I-3187, paragraph 17.

29 Cf. the Opinion of Mr Advocate General Van Gerven in Case C-16/90 Nolle [1991] ECR I-5172, paragraph 13.

30 Cf. the judgment in Al-Jubail (cited in footnote 27), paragraph 20.

31 See the end of section 4, above.

32 Cf. section 11, above.

33 See section 45, above.

34 See in this connection Beseler, J. F./Wdliams, A. N.: Anti-Dumping and Anti-Subsidy Law: The European Communities, London, 1986, p. 73; Boudant, J.: L'antidumping communautaire, Paris 1991, p. 73 et seq.

35 Cf. the recent judgment in Case C-171/87 Canon A Council [1992] ECR I-1237, paragraph 55. See also my Opinion in Case C-69/89 Nakajima v Council [1991] ECR I-2112, paragraph 34.

36 As regards this term, see section 10, above. In the application, the applicant claimed that the figures used by the Community institutions also covered lighters with a higher content of gas than the lighters manufactured by Gao Yao, which were therefore not comparable. In paragraph 34 of Regulation No 1386/91, the Commission states, however, that, in order to assure a fair comparison, it took into account in the price undercutting exercise only lighters with a similar content of gas. This is confirmed by the Council in paragraph 13 of the contested regulation. The applicant seems no longer to wish to persist with this aspect of its complaint in tne reply. In view of what I shall have to say later with regard to the inclusion of piezo lighters, this aspect probably, in any event, has no separate role to play.

37 See section 6.1 of that memorandum.

38 See section 10, above.

39 Cf. paragraph 5 of the contested regulation.

40 My view is probably confirmed by paragraph 1 of the contested regulation.

41 See in particular the second subparagraph of paragraph 41 of Regulation No 1386/91.

42 Paragraph 44 of Regulation No 1386/91, confirmed in paragraph 15 of the contested regulation.

43 On this basis, a figure for consumption of 321.8 million faeces can be calculated for 1986 and a figure of 435.6 mil-ion pieces for 1989.

44 See section 12, above.

45 The figures would in that case have to be lower (and not higher). Moreover, comparison with the figures set out in paragraph 31 of the regulation shows that imports of piezo lighters from the countries concerned must have been much higher (more than £50 million in 1989 at least).

46 See section 14, above.

47 See section 54, above.

48 See paragraphs 18 to 21 of Regulation No 1386/91.

49 See section 84, below.

50 Cf. paragraph 48 of Regulation No 1386/91.

51 In each case, consumption less sales by EC manufacturers and imports from Korea, Japan, China and Thailand (for 1989, for example, 439.8 million -266.5 million -152.5 million = 20.8 million pieces).

52 See section 60 et seq., above.

53 See section 74 et seq., below.

54 See the judgment in Nakajima, cited in footnote 26, paragraph 29.

55 The information reproduced here comes from Annex 2 to the rejoinder. The Council marked that annex confidential. However, it did not give express instructions that it should be treated as confidential and hence it appears to have been served on all the parties to the proceedings. However, I shall (for obvious reasons) nevertheless confine myself to describing the conclusion drawn by the Council without quoting detailed information provided by the Council about sates.

56 The applicant would have had an opportunity to do so at the hearing. However, it did not appear at the hearing.

57 See sections 54 and 69, above.

58 Cf. paragraph 21 of Regulation No 1386/91.

59 See paragraphs 12 and 13 of the regulation, which are confirmed by paragraph 5 of the contested regulation.

60 Cf. the judgments in Technointorg, cited in footnote 18, paragraphs 37, 38 and 39, in Case C-l 76/87 Konishiroku v Council [1992] ECR I-1493, paragraph 11 et seq., and in Case C-177/87 Sanyo Electric v Council [1992] ECR I-1535, paragraph 11 et seq.

61 Paragraph 34 of Regulation No 1386/91, confirmed by paragraph 13 of the contested regulation.

62 Cf. paragraph 35 of Regulation No 1386/91.

63 Paragraphs 41 and 47 of Regulation No 1386/91 (see section 16, above).

64 Paragraphs 14 and 15 of the contested regulation (see section 22, above).

65 Cf. paragraphs 36 and 40 of Regulation No 1386/91.

66 Judgment in Case C-315/90 Gimelec v Commission [1991] ECR I-5589, paragraph 17.

67 See the judgment in Nakajima, cited in footnote 26, paragraph 86, reflecting that which the Court has consistently held.

68 Quoted in section 14 of this Opinion.

69 Purely hypothetically, it is also conceivable that the increase in sales in the EC came about as a result in a shift of lighter sales which had formerly been made abroad. Although the EC producers evidently export to third countries, such a development is extremely unlikely. Neither in the regulations at issue nor in the correspondence exchanged during the anti-dumpingproceeding, have I found the slightest evidence for this. The Community institutions also did not pray such a possibility in aid.

70 Paragraph 37 of Regulation No 1386/91.

71 The applicant seems initially to have construed the fact that the Commission and the Council used each time 1986 as the yardstick (=100%) as meaning, for instance, that the EC manufacturers' capacity utilization actually stood at 100% in 1986, which is a manifesdy absurd assumption.

72 Cf. section 60 et seq., above.

73 For the requirements for an infringement of Article 190 of the EC Treaty, see section 59, above.

74 Cf. with regard to this demarcation my Opinion of 15 July 1993 in Case C-216/91 Rima v Council, judgment of 7 December 1993 [1993] ECR I-6303, I-6322, paragraph 110.

75 See the judgment in Nakajima, cited in footnote 26, paragraph 134.