CJEC, 3rd chamber, March 27, 1990, No C-189/88

THE COURT (Third Chamber),

1 By an order of 23 June 1988, which was received at the Court on 11 July 1988, the tribunale di Genova, prima sezione civile (District Court, Genoa, First Civil Section), referred to the Court of Justice under Article 177 of the EEC Treaty for a preliminary ruling three questions concerning the validity and the interpretation of Council Regulation (EEC) No 551-83 of 8 March 1983 imposing a definitive anti-dumping duty on kraftliner paper and board originating in the United States of America and accepting undertakings given in connection with the review of the anti-dumping proceeding on kraftliner paper and board originating in Austria, Canada, Finland, Portugal, the Soviet Union and Sweden (Official Journal 1983, L 64, p. 25).

2 Those questions arose in proceedings between the plaintiff in the main proceedings, Cartorobica SpA (hereinafter referred to as "Cartorobica ") and the Italian Ministry of Finance.

3 It appears from the documents before the Court that in November 1985 and April 1986 Cartorobica imported kraftliner paper and board from the United States of America without paying the anti-dumping duties imposed by Regulation No 551-83, cited above.

4 On 19 June 1987 the Italian Ministry of Finance (Customs Service) served on Cartorobica a demand for payment of LIT 11 276 500 by way of anti-dumping duties and LIT 2 204 560 by way of interest thereon.

5 Cartorobica challenged that demand for payment before the tribunale di Genova on the ground, in particular, that Regulation No 551-83, on the basis of which the anti-dumping duties at issue were claimed, was invalid.

6 In those circumstances the tribunale di Genova (prima sezione civile) stayed the proceedings and referred the following questions to the Court for a preliminary ruling :

"(1) Is Council Regulation No 551-83 valid in view of the fact that it does not permit the customs authorities of the Member States to determine anti-dumping duties directly, by means of an automatic calculation unaffected by currency fluctuations, but refers instead to a single, definitive threshold price which is not envisaged as a method of calculation either by Council Regulation No 3017-79 (Official Journal 1979, L 339, see in particular Article 2(9) under Heading D and Article 2(13) under Heading F) or by the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade (GATT) (Official Journal 1980, L 71, p. 90, see Article 2(6))?

(2) Is Council Regulation No 551-83 valid inasmuch as it states the threshold price, by reference to which the anti-dumping duty is determined, in United States dollars rather than in European currency units, thereby introducing as a point of reference a currency whose fluctuations could not be controlled by the Community institutions?

(3) If the answer to the first two questions is in the affirmative - and Regulation No 551-83 is accordingly held to be valid - is that regulation to be interpreted as meaning that the value, expressed in the various national currencies, of the threshold price of USD 333 to which reference must be made for determining the anti-dumping duty must not, as a result of currency fluctuations, vary from the level (expressed in a national currency) as ascertained at the time when that threshold price was introduced?"

7 Reference is made to the Report for the Hearing for a fuller account of the facts, the course of the procedure and the written submissions made to the Court, which are mentioned or referred to hereinafter only in so far as is necessary for the reasoning of the Court.

8 The answer to be given to the first two preliminary questions concerning the validity of Regulation No 551-83 depends in part on the interpretation of that regulation as sought by the third preliminary question. The doubts expressed by the national court about its validity are based in particular on an interpretation of the regulation according to which the amount of the threshold price, being expressed in US dollars, is affected by variations in the exchange rates for the dollar and the currencies of the Member States, whereas the third question seeks essentially to establish whether the regulation must be interpreted in that way. Therefore the first two questions cannot be answered until after the third question.

The third question

9 The national court' s third question is whether Council Regulation No 551-83 of 8 March 1983 must be interpreted as meaning that the exchange rate to be used in order to convert the threshold price fixed by Article 2 of that regulation into the currency of the importing Member State remains the exchange rate applicable on the date the regulation entered into force, regardless of the date on which the goods were imported.

10 Under Article 2(1) of Regulation No 551-83 the anti-dumping duty on kraftliner paper and board originating in the United States of America is to correspond to the difference between, on the one hand, the normal value in the United States, brought up to a cif Community frontier basis, and, on the other hand, the free-at-frontier Community price, duty-unpaid, per tonne net to the first purchaser in the customs territory of the Community. The amount of the normal value, laid down by Article 2(2), is expressed in US dollars. The effect of that method of calculating the duty is to ensure that when importing kraftliner paper and board from the United States of America Community traders will have to pay a price which, taking into account, where applicable, anti-dumping duty, will be at least equivalent to a fixed threshold price in US dollars.

11 In order to determine the anti-dumping duty it is therefore necessary for the value of each of the two elements involved in the calculation, namely the threshold price and the "price.. . to the first purchaser", to be converted into the currency of the importing Member State using the exchange rates applicable on a single date.

12 Regulation No 551-83 does not contain any provision on exchange rates which in itself enables it to be decided whether that date must be the date on which the regulation entered into force or the date on which the goods were imported.

13 However, the second paragraph of Article 1 of the regulation provides that the provisions in force for the application of customs duties are to apply.

14 Under those provisions, and more specifically those of Article 1(1)(g) and Article 9 of Council Regulation (EEC) No 1224-80 of 28 May 1980 on the valuation of goods for customs purposes (Official Journal 1980, L 134, p. 1), the "price.. . to the first purchaser" must be converted into the currency of the importing Member State at the rate of exchange applicable at the material date for the valuation of the goods for customs purposes.

15 Accordingly, since that is the material date for the purposes of determining the exchange rate to be used in order to convert the "price.. . to the first purchaser", that same date must also be used in order to determine the exchange rate to be employed in order to convert the threshold price.

16 That conclusion is confirmed, moreover, by the fact that the imposition of anti-dumping duty on the occasion of a particular import operation assumes that account will be taken of the situation existing on the date of importation.

17 The reply to the third question must therefore be that Council Regulation No 551-83 of 8 March 1983 must be interpreted as meaning that the rate of exchange to be used for converting the threshold price laid down by Article 2 thereof into the currency of the Member State of importation is the rate applicable on the date which would be used to determine the customs value of the imported goods and not on the date on which the regulation entered into force.

The first two questions

18 In its first two questions the national court is concerned with the validity of Council Regulation No 551-83 of 8 March 1983.

19 It must be stated in limine that Regulation No 551-83 was adopted on the basis of Council Regulation (EEC) No 3017-79 of 20 December 1979 on protection against dumped or subsidized imports from countries not members of the European Economic Community (Official Journal 1979, L 339, p. 1). For its part, Regulation No 3017-79 was adopted in order to fulfil the Community' s international obligations under, in particular, the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade (hereinafter referred to as "the Anti-Dumping Code "), which was approved on behalf of the European Economic Community by the Council Decision of 10 December 1979 concerning the conclusion of the Multilateral Agreements resulting from the 1973-79 trade negotiations (Official Journal 1980, L 71, p. 1).

20 In view of their very wording the national court' s questions raise the issue of the validity of Regulation No 551-83 in so far as it imposes an anti-dumping duty which :

(i) is fixed by reference to a threshold price;

(ii) is to be determined by the national customs authorities;

(iii) depends on a threshold price expressed in dollars and not in ecus;

(iv) is affected by exchange-rate movements.

The question as to the fixing of the anti-dumping duty by reference to a threshold price

21 First, it must be observed that the national court' s reference to the provisions of Article 2(9) and (13) of the basic regulation, Regulation No 3017-79, and of Article 2(6) of the Anti-Dumping Code in order to call attention to the fact that the method of calculation used in this case is not laid down in either of those measures is of no avail.

22 The provisions of Regulation No 3017-79 referred to by the national court relate to the determination of the dumping margin and to the method for effecting the comparison which has to be carried out to that end between the normal value and the export price. They cannot therefore be usefully relied on for the purposes of assessing the validity of the method used to calculate an anti-dumping duty.

23 The same applies to the provisions of the Anti-Dumping Code, to which the national court also refers. Without its even being necessary to consider whether those provisions are capable of giving rise to the right for individuals to rely on them in legal proceedings, it is sufficient to observe that they concern the method of determining the margin of dumping, not the anti-dumping duty.

24 Secondly, it should be pointed out that the method of fixing anti-dumping duties is laid down in Article 13 of Regulation No 3017-79, which provides in particular that anti-dumping duties are to be imposed by regulation and that "such regulation shall indicate in particular the amount and the type of duty imposed ".

25 Those provisions leave the Community institutions with a wide discretionary power to determine, in each case, the "type of duty" which is such as to afford the most effective defence against dumped imports.

26 In the case at issue, the Council did not exceed that discretionary power in so far as it imposed an anti-dumping duty which was fixed by reference to a threshold price, being the normal value of the goods in the United States of America brought up to a cif Community frontier basis, and varied depending on the price paid when the goods were imported into the Community.

27 That method of calculation was in fact the most appropriate means of offsetting the dumping margin and of ensuring "fair treatment of imports at different prices", in accordance with the last recital of the preamble to Council Regulation (EEC) No 2133-78 of 8 September 1978 imposing a definitive anti-dumping duty on kraftliner paper and board originating in the United States of America (Official Journal 1978, L 247, p. 22), the predecessor of Regulation No 551-83.

The determination of the anti-dumping duty by the customs authorities of the Member States

28 In its submissions to the Court, Cartorobica claims that the price at which the goods are imported into the Community, which is one of the two elements, the other being the threshold price, used to calculate the anti-dumping duty imposed by Regulation No 551-83, is not defined precisely in that regulation. Consequently the national customs authorities have an excessive margin of discretion with regard to the calculation of the import price and hence with regard to the determination of the amount of the anti-dumping duty, which may result in the duty' s not being applied uniformly throughout the Community.

29 It must be held that, on the contrary, the import price, which is defined by Regulation No 551-83 as the free-at-frontier Community price, duty-unpaid, per tonne net to the first purchaser in the customs territory of the Community, can be fixed precisely and certainly by the customs authorities of the Member States.

30 The import price corresponds to the price actually paid or payable for the imports in question, including the costs incurred up until the place at which the goods enter the customs territory of the Community but not the duties and taxes payable in that territory.

Fixing the threshold price in dollars rather than in ecus

31 In its submissions to the Court, Cartorobica maintains that the anti-dumping duty, which is intended to be applied in all the Member States of the Community, may not depend on a threshold price expressed in the currency of a non-member country and that that threshold price ought to have been fixed in ecus.

32 It must be observed in the first place that no provision of Community law, and in particular neither Council Regulation (EEC) No 2779-78 of 23 November 1978 on the procedure for applying the European unit of account (EUA) to legal acts adopted in the customs sphere (Official Journal 1978, L 333, p. 5) nor Council Regulation (EEC, Euratom) No 3308-80 of 16 December 1980 on the replacement of the European unit of account by the ecu in Community legal instruments (Official Journal 1980, L 345, p. 1), requires the ecu to be employed to express the value of the threshold price used to calculate the anti-dumping duty at issue.

33 It should also be held that the Council did not exceed its discretionary power in this field when it decided to express the threshold price in dollars in order to take account in particular of the fact that the threshold price reflected the normal value in the United States of the goods which were the subject of the dumping.

The fact that the amount of the duty is affected by exchange-rate movements

34 Cartorobica claims that the amount of the threshold price when converted into currencies of the Member States, and consequently the amount of the anti-dumping duty, is affected by changes in the exchange rate of the dollar. As a result, the very marked appreciation of the dollar against the lira between the date when Regulation No 551-83 was adopted and the time of the imports at issue in the main proceedings caused Italian importers to incur additional, discriminatory costs in comparison with those borne by their competitors in States with strong currencies, such as the Federal Republic of Germany. That situation would not have arisen if the threshold price had been expressed in ecus.

35 It must be pointed out that the mere fact that the amount of the duty to be paid by importers depends in particular on a parameter expressed in a currency which is subject to fluctuations outside the control of the Community institutions cannot justify a declaration that Regulation No 551-83 is invalid.

36 First, any anti-dumping duty, whatever its type and irrespective of the currency in which it is expressed or to which it refers, may be affected by exchange-rate movements.

37 Secondly, in the present state of Community law, the Community institutions can no more control fluctuations in the value of the ecu than they can fluctuations in any other currency.

38 It must, however, be considered whether the validity of Regulation No 551-83 could be called into question because - assuming that to have been the case - after it entered into force exchange-rate fluctuations had the effect of changing the value in the national currencies of the importing Member States of the threshold price laid down in the regulation, in circumstances such that at a particular time the existence or the amount of the anti-dumping duty was no longer justified.

39 It must be observed in that regard that the basic rules governing anti-dumping duties provide economic operators with means of challenging duties which have become wholly or partly unjustified.

40 Economic operators may ask the Commission to review the regulations imposing the duties and thereby obtain, where appropriate, the amendment, repeal or annulment of the measures laid down in those regulations.

41 Moreover, where an importer can show that the duties exceed the actual dumping margin he can obtain a refund of some or all of the duties which he has paid.

42 It follows from the foregoing considerations that consideration of the first two questions referred by the tribunale di Genova has disclosed no factor of such a kind as to affect the validity of Council Regulation No 551-83 of 8 March 1983.

Costs

43 The costs incurred by the Kingdom of the Netherlands, by the Council of the European Communities and by the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT (Third Chamber),

in answer to the questions referred to it by the tribunale di Genova (prima sezione civile), by order of 23 June 1988, hereby rules :

(1) Council Regulation (EEC) No 551-83 of 8 March 1983 imposing a definitive anti-dumping duty on kraftliner paper and board originating in the United States of America and accepting undertakings given in connection with the review of the anti-dumping proceeding on kraftliner paper and board originating in Austria, Canada, Finland, Portugal, the Soviet Union and Sweden must be interpreted as meaning that the rate of exchange to be used for converting the threshold price laid down by Article 2 thereof into the currency of the Member State of importation is the rate applicable on the date which would be used to determine the customs value of the imported goods and not on the date on which the regulation entered into force.

(2) Consideration of the questions raised has disclosed no factor of such a kind as to affect the validity of Council Regulation (EEC) No 551-83 of 8 March 1983.