CJEC, 5th chamber, October 5, 1988, No 106-86

THE COURT (Fifth Chamber)

1 By an application lodged at the Court Registry on 20 August 1985 (Case 260-85), Tokyo Electric Company Ltd (TEC), whose registered office is in Tokyo, Japan, and its European subsidiaries, TEC Belgium SA, TEC Elektronik GmbH, TEC Europe Company Ltd and TEC France SA, brought an action under the second paragraph of Article 173 of the EEC Treaty for a declaration that Council Regulation (EEC) No 1698-85 of 19 June 1985 imposing a definitive anti-dumping duty on imports of electronic typewriters originating in Japan (Official Journal 1985, L 163, p. 1) was void in so far as it related to them.

2 Tokyo Electric Company Ltd (TEC) is a company which manufactures and sells, inter alia, electronic typewriters. Its production is intended exclusively for export and is sold in the Member States of the Community either through wholly owned subsidiaries or through independent distributors. A substantial proportion of its exports to the Community has also consisted of "OEM (Original Equipment Manufacturers) imports", that is to say sales to European manufacturers,such as UTAX GmbH in Germany, which then market the electronic typewriters under their own brand names. In 1984, Tokyo Electric Company Ltd (TEC), together with other Japanese manufacturers, was the subject of a complaint made to the Commission by an association of European manufacturers, the Committee of European Typewriter Manufacturers (Cetma), which accused it of selling its products in the Community at dumping prices.

3 The anti-dumping proceeding initiated by the Commission on the basis of Council Regulation (EEC) No 2176-84 of 23 July 1984 on protection against dumped or subsidized imports from countries not members of the European Economic Community (Official Journal 1984, L 201, p. 1) led initially to the imposition on Tokyo Electric Company Ltd (TEC) of a provisional anti-dumping duty of 6.9 %. The Council, on a proposal from the Commission, then fixed the definitive anti-dumping duty at 21% by Council Regulation No 1698-85, against which Tokyo Electric Company Ltd (TEC) and its European subsidiaries have brought the present action.

4 By a document lodged on 22 August 1985, the applicants applied for interim measures suspending the operation, with respect to them, of Regulation No 1698-85 until the Court had given judgment. The application for interim measures was dismissed by an order of the President of the Court of 18 October 1985 in which the costs were reserved.

5 By an application lodged at the Court Registry on 5 May 1986 (Case 106-86), Tokyo Electric Company Ltd (TEC) brought an action under the second paragraph of Article 173 of the EEC Treaty for a declaration that Council Regulation (EEC) No 113-86 of 20 January 1986 amending Council Regulation (EEC) No 1698-85 of 19 June 1985 imposing a definitive anti-dumping duty on imports of electronic typewriters originating in Japan (Official Journal 1986, L 17, p. 2) was void, in so far as it related to the applicant.

6 By order of 11 March 1987, Cases 260-85 and 106-86 were joined for the purposes of the procedure and judgment.

7 The Commission and Cetma were given leave to intervene in the two cases in support of the defendant' s submissions. UTAX GmbH was given leave to intervene in support of the applicants' submissions.

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

9 It should be stated at the outset that, as was made clear by Tokyo Electric Company Ltd (TEC) itself, the application lodged on 5 May 1986 does not contain any new submission but is merely intended to enable the applicant to make certain that the review by the Court covers both Regulation No 1698-85 imposing the definitive anti-dumping duty and Regulation No 113-86 which amended the rate of the duty laid down in Regulation No 1698-85 in order to correct an error caused by the fact that electronic typewriters manufactured in Singapore had wrongly been treated as Community products when the injury suffered by the Community industry was calculated.

10 The applicants (hereinafter collectively referred to as "TEC ") rely upon the following four submissions in support of their actions:

(i) an excessively high profit margin was used to construct the normal value;

(ii) selling expenses were included in the constructed normal value;

(iii) the calculation of the expenses attributed to TEC France was incorrect;

(iv) the determination of the injury suffered by the Community industry was incorrect.

The submission concerning the excessively high profit margin used in constructing the normal value

11 Pursuant to Article 2 (3) (b) (ii) of Regulation No 2176-84, when there are no sales of the like product in the ordinary course of trade on the domestic market of the exporting country or country of origin or when such sales do not permit a proper comparison, the normal value is taken to mean "the constructed value, determined by adding cost of production and a reasonable margin of profit ". That provision also states that: "As a general rule, and provided that a profit is normally realized on sales of products of the same general category on the domestic market of the country of origin, the addition for profit shall not exceed such normal profit. In other cases, the addition shall be determined on any reasonable basis, using available information ".

12 TEC maintains that in calculating the "reasonable margin of profit" to be used in constructing the normal value of its electronic typewriters, the institutions failed to apply Regulation No 2176-84 correctly.

In support of that submission, it claims that:

(i)the profit margin adopted by the institutions is too high to constitute "a reasonable margin of profit" or a "normal profit";

(ii) the margin used does not correspond to the profit "normally realized on sales of products of the same general category on the domestic market of the country of origin", within the meaning of Article 2 (3) (b) (ii) of Regulation No 2176-84, those products being, in TEC' s view, products in the office equipment sector as a whole in Japan;

(iii) the method used to determine the margin results in violation of the principle of legal certainty;

(iv) the use of such a margin is discriminatory because another company whose circumstances were the same was treated differently;

(v) the margin was based on data which could not be lawfully used because they had not been communicated to the interested parties.

13 As regards the first argument, it should be pointed out that there is nothing in Article 2 (3) (b) (ii) of Regulation No 2176-84 to preclude the view that the profit margin adopted by the institutions could, in the context of their power of appraisal, be regarded as a reasonable margin. TEC has not established that the profit margin in question was not achieved in the ordinary course of trade.

14 As regards the second argument, it is not in dispute that the term "like product" within the meaning of Article 2 (2) and (12) of Regulation No 2176-84 signifies a product with the same characteristics; however, the term "products of the same general category" within the meaning of Article 2 (3) must be taken to denote products within the category of electronic typewriters, the only products which resemble each other sufficiently to provide reliable guidance, whereas the "office technology" sector comprises an extremely wide range of products, each of which may yield a different profit as a result of its special applications and specific customers. The institutions were therefore not in error when they established the normal profit on the basis of data relating to other electronic typewriter models.

15 Contrary to TEC' s third submission, in which it argues that the method adopted by the institutions leads to results which are unforeseeable because the manufacturer concerned cannot know the profit margins of its competitors, it must be observed that references to factors not known to the manufacturer concerned often prove necessary under the system laid down by Regulation No 2176-84 where, as in the present case, it is not possible to take real prices as a basis, and a certain degree of unforeseeability has to be accepted in such operations.

16 It must also be emphasized that if, in the case of manufacturers not operating on the domestic market, the normal value could be constructed only on the basis of a hypothetical profit, there would be a risk of discrimination against the other manufacturers whose profit margin on the models which they sell in Japan is used in constructing the normal value of their other models. A solution such as that adopted by the institutions, which enables the principle of legal certainty to be safeguarded as far as possible without however infringing the principle of equality of treatment, therefore appears to be consonant with the scheme of Regulation No 2176-84.

17 In its fourth submission, TEC argues that the profit margin used in its case is discriminatory since it is much higher than the margin established by Decision 86-34 of 12 February 1986 (Official Journal 1986, L 40, p. 29) for Nakajima All Precision Co. Ltd whose circumstances - in TEC' s opinion - were wholly comparable to its own.

18 In that connection, it must be observed that, since Nakajima' s exclusion from the number of companies subject to a definitive anti-dumping duty stems from the aforesaid Decision 86-34, discrimination in favour of Nakajima could not, even if it were established, lead to the annulment of the regulation imposing a definitive anti-dumping duty on TEC, which was adopted on the basis of findings correctly made in the course of the anti-dumping investigation and in accordance with the rules laid down by Regulation No 2176-84.

19 Finally, TEC maintains that the institutions were not entitled to calculate the profit margin on the basis, inter alia, of information which it did not communicate to the applicant.

20 TEC' s argument is unfounded in so far as the information allegedly not received by it comprised confidential data which could not have been supplied to it without the obligation not to divulge business secrets being breached.

21 In the light of the foregoing, it must be concluded that TEC' s submission concerning the use of an excessively high profit margin must be rejected.

The submission concerning the inclusion of selling expenses in the constructed normal value

22 TEC claims that by including in the cost of production of its products an amount for selling expenses at a level of trade beyond the ex-factory level and relating to sales of products other than those under consideration, the institutions applied Regulation No 2176-84 incorrectly.

23 According to TEC, the method used by the institutions is incorrect in the first place because the constructed value is not in fact designed to establish a normal value as if sales on the domestic market had taken place.

24 In that connection, it must be borne in mind that, according to the scheme of Regulation No 2176-84, the purpose of constructing the normal value is to determine the selling price of a product as it would be if that product were sold in its country of origin or in the exporting country. Consequently, it is the expenses relating to sales on the domestic market which must be taken into account.

25 TEC also maintains that the institutions included in its production costs, in breach of Article 2 (9), (10) and (11) of Regulation No 2176-84, an amount for the selling, general and administrative expenses (" SGA expenses ") of TEC Electronics, a subsidiary which distributes products other than electronic typewriters in Japan.

26 It should be observed that, as is clear from the documents before the Court, TEC markets its products in Japan through a distribution company which it controls financially and to which it entrusts tasks that are normally the responsibility of an internal sales department of the manufacturing organization.

27 Even if TEC does not sell electronic typewriters in Japan and its subsidiary exclusive distributor in Japan sells only other products, the normal value of its electronic typewriters must be constructed for the purposes of the anti-dumping investigation as if they had been sold on the domestic market.

28 The division of production and sales activities within a group made up of legally distinct companies can in no way alter the fact that the group is a single economic entity which carries out in that way activities that, in other cases, are carried out by what is in legal terms as well a single entity.

29 There would be discrimination if expenses necessarily included in the selling price of a product when it was sold by a sales department forming part of the manufacturer' s organization were not included when that product was sold by a company which, although financially controlled by the manufacturer, was a legally distinct entity.

30 The foregoing considerations are likewise grounds for the rejection of TEC' s argument that the method used by the institutions is contrary to Article 2 (9) of Regulation No 2176-84, which provides that the normal value and the export price should "normally be compared at the same level of trade, preferably at the ex-factory level ". In fact, it is precisely by taking account of the first sale to an independent purchaser that the normal value at the "ex-factory" level can be correctly established where there are production and sales arrangements of the kind adopted by Tokyo Electric Company Ltd for the products it sells on the Japanese market.

31 As regards the argument to the effect that the SGA expenses must be treated in the same way when the normal value is constructed as when the export price is constructed, it need only be pointed out that that argument was clearly rejected in the judgments of the Court of 7 May 1987 (in Cases 240, 255, 256, 258 and 260-84, concerning an anti-dumping duty on imports of ball-bearings, ((1987)) ECR 1809, 1861, 1899, 1923 and 1975), in which it is stated that there are three sets of distinct rules, each of which must be complied with separately for the respective purposes of determining the normal value, establishing the export price and making the comparison between the two.

32 TEC also claims that the SGA expenses of TEC Electronics could not properly be used in the calculation of the constructed value of the electronic typewriters produced by TEC because those expenses related to products other than electronic typewriters.

33 Article 2 (3) (b) (ii), according to which a "reasonable amount" for SGA expenses must be included in the constructed normal value, allows the Community institutions a margin of discretion in evaluating that amount. An interpretation to the effect that the SGA expenses cannot be determined by reference to the expenses incurred by a subsidiary company selling products other than electronic typewriters would deprive the institutions of any information indicative of the amount of those expenses. TEC has produced no evidence to indicate that the SGA expenses relating to the sale of other electronic products cannot provide valid guidance for calculation of SGA expenses incurred in respect of sales of electronic typewriters.

34 Nor can the argument be accepted that, by virtue of the fact that under Article 2 (11) all calculations are to be based on available accounting data, normally allocated, where necesssary, in proportion to the turnover of each product and market under consideration, the SGA expenses relating to electronic typewriters which are not sold on the domestic market should be zero. Such an argument would wholly negate Article 2 (3) (b) (ii), which applies precisely to cases where there are not sufficient sales on the domestic market.

35 The submission concerning inclusion of the SGA expenses in the construction of the normal value must therefore be rejected.

The submission concerning miscalculation of the expenses attributed to TEC France

36 TEC claims that its export prices were miscalculated. The SGA expenses of its subsidiary TEC France were wrongly inflated by inclusion of the wages of employees who did not sell electronic typewriters and they were then wrongly attributed to its subsidiaries in the Federal Republic of Germany and the United Kingdom.

37 As regards TEC' s allegation that the institutions wrongly attributed to its United Kingdom and German subsidiaries the SGA expenses incorrectly calculated for TEC France, it must be emphasized that TEC itself had suggested to the institutions that they should take account of TEC France' s SGA expenses as also being representative of the expenses of its other European subsidiaries which had not been verified. The institutions cannot therefore be criticized for adopting TEC' s suggestion, even if TEC France' s SGA expenses subsequently proved to be higher than the applicant thought.

38 TEC nevertheless maintains that the institutions also included in the expenses of TEC France the wages of employees who had never engaged in the sale of electronic typewriters and that that error unduly inflated the amount of SGA expenses attributed to its European subsidiaries.

39 In that connection, it must be emphasized that, even if the figures indicated by TEC - according to which TEC France' s SGA expenses in respect of the sale of electronic typewriters amounted not to 27.7% but to 16.97% of the turnover for electronic typewriters and were therefore 10.73 percentage points lower than the percentage adopted by the Commission - were correct, that could not have influenced the fixing of the definitive anti-dumping duty.

40 It must be pointed out that the institutions had established, in TEC' s case, a dumping margin of 48.1% and a rate of injury of 21%, expressed as percentages of the cif price, and that they considered that it was appropriate to fix the rate of the anti-dumping duty at the lower of those two percentages, which was sufficient to eliminate the injury caused.

41 It is apparent from the documents before the Court that the export price was obtained by deducting from the sale price of electronic typewriters in France a profit of 5% and SGA expenses totalling 27.7%, with the result that that price corresponds to 67.3% of TEC France' s selling price. Even if the export price was increased by an amount equal to 10.73% of the selling price, because of the fixing of the SGA expenses at 16.97%, as requested by TEC, the dumping margin would still remain in excess of 21 %. There is therefore no justification for amending the anti-dumping duty fixed in Regulation No 1698-85.

42 The submission must therefore be rejected.

The submission concerning incorrect determination of the injury suffered by the Community industry

43 TEC claims in the first place that there was no basis for the imposition of anti-dumping duties on electronic typewriters falling under Nimexe Code 84.51-14, for which the Japanese manufacturers' market share had declined during the period covered by the investigation and which were, moreover, imported into the Community by the Community undertakings themselves.

44 The first of those arguments is based on the idea that the injury suffered by the Community industry should have been determined separately for electronic typewriters falling under Nimexe Code 84.51-14, which TEC calls "compact typewriters", on the one hand, and for those falling under other Nimexe codes, which TEC calls "professional typewriters", on the other. That argument presupposes that two distinct markets exist.

45 It is apparent from the documents before the Court that, if any distinction ever existed between "compact" and "professional" electronic typewriters, it had already disappeared by the time of the anti-dumping investigation in view of the trend towards the construction of electronic typewriters broadly capable of catering for the same needs. The institutions were therefore not mistaken in ruling out the existence of separate markets - which, moreover, was something they had never admitted.

46 The second argument put forward by TEC is based on the view that the European manufacturers which imported certain models of electronic typewriters from Japan and sold them under their own brand names should not have been included among the companies which suffered injury as a result of the Japanese imports.

47 In that connection, it is apparent from the contentions of the institutions, which have not been seriously challenged by TEC, that only a few models, all of them at the lower end of the range, were imported by Community manufacturers to fill gaps which at that time existed in their range of products and that the total volume of such imports was always relatively low. In those circumstances, the Community manufacturers' imports must be regarded as not having contributed to the injury to the Community industry and there is therefore no reason to exclude such manufacturers from the determination of injury.

48 TEC then asserts that the determination of the injury is vitiated by the fact that the level of price undercutting was not established pursuant to Article 4 (2) (b) of Regulation No 2176-84 on the basis of a comparison between the import prices and the prices of like products in the Community but on the basis of a comparision between the import prices, on the one hand, and the "target price", namely amounts calculated on an artificial and hypothetical basis, on the other.

49 In order to establish to what extent that submission is well founded, it must be borne in mind that the institutions were unable to determine the injury until after the complaint was lodged by the Community manufacturers on 15 February 1984, whereas it is apparent from the documents before the Court that the Community industry had already some time before begun to feel the effects of the Japanese imports which were subsequently the subject of the anti-dumping proceeding. The prices of the Community products during 1984 could therefore no longer be used for determination of the injury within the meaning of Article 4 of Regulation No 2176-84, in so far as they had already been reduced for some time with a view to resisting the ever-growing pressure from Japanese imports.

50 In the light of the foregoing considerations, constructing the price which would have obtained within the Community if it had not been subject over a long period to downward pressure because of Japanese imports is the only way of ensuring that the comparison provided for in Article 4 (2) (b) of Regulation No 2176-84 is not rendered meaningless.

51 TEC nevertheless considers that the price undercutting by the Japanese products of the Community products was incorrectly established by the Commission on the ground that certain of its models were compared either with models not manufactured in the Community during the period of the investigation or with European models which were more costly than those subsequently judged comparable with the TEC models.

52 Those arguments cannot be upheld. The defects referred to by TEC were eliminated when the comparison was made for the purpose of determining the definitive anti-dumping duty, and that comparision was not criticized by the applicant.

53 In those circumstances, the fourth submission must also be rejected.

54 In view of the foregoing findings, the actions in their entirety must be dismissed as unfounded.

Costs

55 Under Article 69 (2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs, if such an order is asked for. Since the applicants have failed in their submissions, they must be ordered to pay, jointly and severally in Case 260-85, their own costs and those of the defendant and of the interveners which asked for them, including the costs of the proceedings for the adoption of interim measures. UTAX GmbH, which intervened in support of the applicants, must bear its own costs.

On those grounds,

THE COURT (Fifth Chamber)

hereby:

(1) Dismisses the applications.

(2)Orders the applicants to pay, jointly and severally in Case 260-85, the costs of the defendant and of the interveners which asked for them, including the costs of the proceedings for the adoption of interim measures, and orders UTAX GmbH to bear its own costs.