CJEC, 5th chamber, May 7, 1987, No 240-84

The court (fifth chamber)

1 By an application lodged at the court registry on 1 october 1984, ntn toyo bearing company limited, osaka, japan, (hereinafter referred to as "ntn ") brought an action before the court under article 173 of the treaty for a declaration that council regulation no 2089-84 of 19 july 1984 imposing a definitive anti-dumping duty on imports of ball-bearings with a greatest external diameter of not more than 30*mm originating in japan and singapore (official journal 1984, l 193, p. 1) is void.

2 By regulation no 744-84 of 19 march 1984 (official journal 1984, l 79, p. 8) the commission had imposed a provisional anti-dumping duty on imports of such small ball-bearings originating in japan and singapore.

3 Reference is made to the report for the hearing for the relevant regulations, the facts of the case and the submissions and arguments of the parties, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the court.

Admissibility

4 The council considers that the application is admissible only in so far as it is concerned with the anti-dumping duty imposed on the applicant. The council observes that the contested measure is a regulation and therefore only those of its provisions which are of direct and individual concern to the applicant may be contested in an application for a declaration of nullity.

5 The court has consistently held, in particular in its judgment of 21 february 1984 in joined cases 239 and 275-82 allied corporation and others v commission ((1984)) ecr 1005, that measures imposing anti-dumping duties, adopted pursuant to 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), are liable to be of direct and individual concern, within the meaning of the second paragraph of article 173 of the treaty, to those producers and exporters who are able to establish that they were identified in the measures adopted by the commission or the council or were concerned by the preliminary investigations. The council does not deny that the contested regulation is liable to be of direct and individual concern to ntn, which is expressly named therein.

6 However, it should be noted that the contested regulation does not lay down general rules which apply to a whole group of traders without distinguishing between them but imposes different anti-dumping duties on a series of manufacturers or exporters of small ball-bearings established in japan and singapore who are expressly named, and also on other undertakings which are not named but which pursue the same activities in those same countries. Under those circumstances it must be concluded that ntn is individually concerned only by those provisions of the contested regulation which impose on it a specific anti-dumping duty and determine the amount thereof, and not by those provisions which impose anti-dumping duties on other undertakings.

7 It follows from the foregoing that the objection of inadmissibility raised by the council must be upheld and the application dismissed as inadmissible in so far as it seeks a declaration that regulation no 2089-84 is void in its entirety. It is, however, necessary to declare the application admissible and to examine its merits in so far as it seeks a declaration that those provisions of the contested regulation which are of concern exclusively to ntn are void.

Substance

8 The applicant makes various submissions which, in the light of the various arguments put forward, must be arranged as follows:

(a) Submission that the method of calculating the dumping margin was unlawful and arbitrary;

(b) Submission that the refusal to take account of the price increases introduced after the investigation period was unlawful;

(c) Submission that the categorical rejection of the price undertakings offered was illegal and unsupported by a statement of reasons;

(d) Submission that the anti-dumping duty imposed was disproportionate to the injury suffered by the community industry.

I - Submission that the method of calculating the dumping margin was unlawful and arbitrary

9 In order to understand the scope of the submissions and arguments put forward by the applicant in this connection, it must be recalled first that under article 2*(2) and (3)*(a) of council regulation no 3017-79 a product is considered to have been dumped if its export price to the community is less than the normal value of the like product, that is to say the price paid in the ordinary course of trade for the like product intended for consumption in the exporting country. Article 2*(13)*(a) of the regulation states that the dumping margin means "the amount by which the normal value exceeds the export price ".

10 It follows from those provisions that the export price and the normal value constitute the terms of the comparison enabling the dumping margin to be established. Article 2*(13)*(b) of regulation no 3017-79 provides that, "where prices vary, the dumping margin may be established on a transaction-by-transaction basis or by reference to the most frequently occurring, representative or weighted average prices", and according to article 2*(13)*(c), "where dumping margins vary, weighted averages may be established ".

11 It is clear from paragraph 11 of the preamble to the contested regulation that in this case the normal value was calculated on the basis of a weighted average of the prices paid on the domestic market. As is stated in paragraph 16 of the preamble, the export price was calculated according to a transaction-by-transaction method. It is clear from the documents before the court that under that method export prices above the normal value were taken into account after being artificially reduced to the level of the normal value and a weighted average was determined of all the export prices established, whether they were below the normal value or equal to normal value. The dumping margin was then determined by comparing the normal value calculated according to the weighted average method and the export price calculated according to the transaction-by-transaction method.

12 The applicant claims firstly that the combination of methods thus used to calculate the normal value and the export price was unlawful.

13 It must be stated in the first place that the procedure for calculating the normal value is laid down in article 2*(3) to (7) of regulation no 3017-79, and the procedure for calculating the export price is laid down in article 2*(8) thereof. Those provisions separately specify several different methods for calculating each of the terms of the comparison.

14 The fact that the methods of calculation which may be used are independent is confirmed by the aforesaid provisions of article 2*(13) (b) and (c) of regulation no 3017-79, which merely state the various possibilities for calculating the dumping margin without imposing any requirement that the methods chosen for calculating the normal value and the export price should be similar or identical.

15 Secondly, it should be pointed out that article 2*(9) of regulation no 3017-79 provides as follows:

"for the purposes of a fair comparison, the export price and the normal value shall be on a comparable basis as regards physical characteristics of the product, quantities, and conditions and terms of sale."

16 It is clear from that provision firstly that it is intended to define the adjustments which may be made to the normal value and the export price after they have been calculated according to the methods specified for that purpose and, secondly, that the adjustments provided for relate exclusively, as is stated in the eighth recital in the preamble to regulation no 3017-79, to differences found to exist as between the domestic market and the export market in the physical characteristics and quantities of products, in conditions and terms of sale, and in the level of trade.

17 It follows from the foregoing that the provisions of regulation no 3017-79 do not require that the methods used to calculate the normal value and the export price should be identical.

18 Next, the applicant claims that the transaction-by-transaction method adopted by the commission to calculate the export price results in the export prices below the normal value being left out of account. That method is therefore in its view arbitrary and distorts the calculation of the dumping margin.

19 It should be noted in that regard that the choice between the different methods of calculation specified in article 2*(13)*(b) of regulation no 3017-79 requires an appraisal of complex economic situations. The court must therefore, as it has held in particular in its judgment of 11 july 1985 in case 42-84 remia and others v commission ((1985)) ecr 2545, limit its review of such an appraisal to verifying whether the relevant procedural rules have been complied with, whether the facts on which the choice is based have been accurately stated and whether there has been a manifest error of appraisal or a misuse of powers.

20 The line of argument put forward by the applicant is tantamount to alleging that the institutions made a manifestly incorrect appraisal of the facts in adopting a method of assessing the dumping margin which does not take account of export prices above the normal value and thus gives rise to an inequitable result.

21 Such a line of argument cannot be accepted. It must be stated firstly that, contrary to what the applicant maintains, the transaction-by-transaction method does not exclude from the calculation of the dumping margin transactions at prices above the normal value. It merely artificially reduces such prices to the level of the normal value but includes them in the calculation of the weighted average of all the prices charged on the export market.

22 Secondly, it should be stressed that the freedom to choose one of the methods specified in article 2*(13)*(b) of regulation no 3017-79 is specifically intended to ensure the application of the method most appropriate to the purpose of the anti-dumping proceeding. Articles 2*(1) and 4*(1) of that regulation provide that the purpose of such a proceeding is to eliminate the injury or threat of injury caused by dumping to an established community industry.

23 The transaction-by-transaction method is the only method capable of dealing with certain manœuvres in which dumping is disguised by charging different prices, some above the normal value and some below it. The application of the weighted average method in such a situation would not meet the purpose of the anti-dumping proceeding, since that method would in essence mask sales at dumping prices by those at what are known as "negative" dumping prices, and would thus in no way eliminate the injury suffered by the community industry concerned.

24 It must therefore be accepted that the commission did not in this case commit any manifest error in its appraisal of the facts by applying the transaction-by-transaction method in order to calculate the dumping margin; this submission must therefore be rejected.

II - Submission that the refusal to take account of the price increases introduced after the end of the investigation period was unlawful

25 The applicant claims that after provisional anti-dumping duties were imposed by regulation no 744-84 it communicated to the council the price increases which it had immediately introduced; however, the council took no account of those increases and did not refrain from imposing definitive anti-dumping duties. The applicant considers in particular that the reason for refusing to take into account the voluntary price increases - namely that such increases were made after the period covered by the investigation - is not valid since it fails to take account of the difference between provisional anti-dumping duties and definitive anti-dumping duties. Furthermore, regulation no 3017-79 makes no mention of an investigation period and such a concept is incompatible with article 2*a of the regulation, from which it is clear that the injury suffered by the community industry must be assessed when the product enters the community. Lastly, it claims that the commission infringed article 13 of regulation 3017-79, which provides that a lesser duty should be imposed if it would be adequate to remove the injury.

26 It must be stated that regulation no 3017-79 makes no provision for the taking into account of voluntary price increases made after the period covered by the investigation. The decision-making process includes an investigation, the initiation and course of which are governed by article 7. By allowing interested parties to make known their views, the investigation is intended to allow the establishment of incontrovertible evidence providing a basis for the termination of the proceeding or the imposition of an anti-dumping duty. It is, at the same time, clear from the 14th and 15th recitals in the preamble to the regulation that the investigation procedure should not prevent rapid and efficient action by the community. In order to reconcile those two objectives, it is essential that the period covered by the investigation, during which the facts to be established occurred, should be of specified and limited duration.

27 With regard to ntn' s claim that articles 2*a and 13 of regulation no 3017-79, which link the imposition of an anti-dumping duty to the existence of injury, were infringed, it should be noted that price increases decided upon after the end of the period covered by the investigation may, where appropriate, give rise to a review pursuant to article 14 of that regulation or result in the refunding of the duty collected, in accordance with article 15 thereof. It is therefore impossible to accept that the anti-dumping proceeding may not be terminated or a decision to impose a definitive anti-dumping may not be adopted merely because the companies which are subject to the provisional anti-dumping duty have made voluntary price increases after the end of the period covered by the investigation.

28 This submission must therefore be rejected.

III - Submission that the categorical rejection of the price undertakings offered was illegal and unsupported by a statement of reasons

29 The applicant claims that the refusal to consider any undertakings in paragraph 24 of the preamble to the contested regulation is unlawful. Its proposals were not considered on the merits but were rejected categorically, which was all the more unjustified since it has always honoured its undertakings. The applicant considers that, although it is for the institutions to decide whether a proposed undertaking is acceptable, they are bound to state reasons for rejecting it after giving it individual consideration, which they did not do in this case.

30 Firstly, it is clear from the documents before the court that the undertakings proposed by the applicant were rejected after being given individual consideration, in the course of which it was requested to express its views on the council' s criticisms of those proposals.

31 Next, it should be recalled that, as regards the complaint that the statement of reasons was inadequate, the court has consistently held, in particular in its judgment of 26 june 1986 in case 203-85 nicolet instrument v hauptzollamt frankfurt-am-main, ((1986)) ecr 2049, that the statement of reasons required by article 190 of the treaty must disclose in a clear and unequivocal fashion the reasoning followed by the community authority which adopted the measure in question in such a way as to make the persons concerned aware of the reasons for the measure and thus enable them to defend their rights, and to enable the court to exercise its supervisory jurisdiction.

32 That requirement was satisfied in this case by the reasons set out in paragraph 24 of the preamble to the contested regulation, from which it is clear that past experience in the ball-bearings sector had shown that undertakings did not provide a satisfactory solution to the problems caused by instances of dumping in that sector.

33 Lastly, it should be stressed that the course of action adopted by the institutions was a correct application of the texts and fulfilled the function conferred upon them by the community rules.

34 No provision of regulation no 3017-79 compels the institutions to accept price undertakings which are offered. On the contrary, it is clear from article 10 thereof that it is for the institutions, in the exercise of their discretionary power, to determine whether such undertakings are acceptable. Ntn has not shown that the reasons for refusing the undertakings offered set out in paragraph 24 of the preamble to the contested regulation exceeded the margin of discretion conferred upon the institutions.

35 This submission must therefore be rejected.

IV - Submission that the principle of proportionality was infringed

36 The applicant claims that, by basing the injury suffered by the community industry on the increase in imports of a limited type of small ball-bearings into the community in 1982 and 1983, the commission showed that the imposition of an anti-dumping duty on all small ball-bearings was not justified; consequently, the principle that the anti-dumping duty imposed should be proportionate to the injury suffered was not observed.

37 It is clear from paragraphs 23 to 32 of the preamble to regulation no 744-84, to which paragraph 21 of the preamble to the contested regulation refers, that although the commission refers in particular to the increase in imports of "a limited number of base types" of small ball-bearings, it also established that overall sales of small ball-bearings produced by the community industry decreased by 13.3% between 1979 and 1983 and that the market share of the community industry fell during the same period from 72 to 60.9 %. It also showed that that situation had caused substantial damage to the community industry, both financially and with regard to employment.

38 Under those circumstances the imposition of an anti-dumping duty on imports of all small ball-bearings from japan cannot be regarded as contrary to the principle of proportionality.

39 This final submission is therefore unfounded. Consequently, the application must be dismissed in its entirety.

Costs

40 Under article 69*(2) of the rules of procedure, the unsuccessful party is to be ordered to pay the costs. As the applicant has failed in its submissions, it must be ordered to pay the costs.

On those grounds,

The court (fifth chamber)

Hereby:

(1) Dismisses the application;

(2) Orders the applicant to pay the costs, including those incurred by the interveners.