CJEC, May 23, 1985, No 53-83

THE COURT

1 By application lodged at the court registry on 31 march 1983 the applicants brought an action under the second paragraph of article 173 of the eec treaty for a declaration that council regulation no 101-83 of 17 january 1983 imposing a definitive anti-dumping duty on certain chemical fertilizer originating in the united states of america (official journal 1983, l 15, p. 1, and l 82, p. 27) is void.

A. Admissibility

2 Although not raising any formal objection, the council expresses doubts as to the admissibility of the application. Neither the fact that the regulation refers to the applicants and imposes a specific rate of duty on them nor the fact that they were involved in the preliminary investigations allows them to claim that they are individually and directly concerned. Bringing an action directly before the court has certain advantages from the point of view of legal protection but it would have the unusual result of making available a second means of redress parallel to the proceedings which may be instituted before the national court. The court has never accepted that a measure may have the dual character of a decision with regard to the undertakings expressly referred to and a regulation with regard to other persons concerned.

3 According to the applicants, their action is directed against a specific measure, separate from and independent of the basic regulation, which, although adopted in the form of a regulation, concerns them directly, individually and exclusively both as regards the operative event, namely the alleged dumping practices and the revocation of the undertakings, and the measure enacted, namely the imposition of a specific duty higher than the general rate. The imposition of a duty, at first provisional and then definitive, cannot be regarded as the automatic consequence of the revocation of the undertakings given. Furthermore, the provision to which the measure may possibly be linked is not article 1 of the basic regulation but article 2 exempting certain named companies and therefore having the character of a decision. An exporter identified in that manner cannot be denied a right of action on the ground that an importer subject to the general duty has no such means of redress.

4 In its judgment of 21 february 1984 in joined cases 239 and 275-82, Allied Corporation and others v commission, (1984) ecr 1005) the court has already held that measures imposing anti-dumping duties are liable to be of direct and individual concern 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.

5 Since the three applicants are expressly referred to in the contested regulation, it follows that their application is admissible.

B. Substance of the case

6 The applicants ' main submissions concern the calculation of the normal value of the chemical fertilizer in question and the finding that the community industry suffered injury.

Calculation of the normal value

7 The applicants complain that the commission and the council did not calculate the normal value on one of the bases referred to in article 2 (3) et seq. Of regulation no 3017-79.

8 Article 2 (3) of regulation no 3017-79 refers to the comparable price actually paid or payable in the country of origin or on export to a third country, or to a constructed value. Where there are reasonable grounds for suspecting that those prices do not cover production costs, article 2 (4) permits reference to be made to other sales on the domestic market or to export sales to third countries, to a constructed value or to adjusted prices.

9 Article 7 (7) (b) of the regulation provides that ' in cases in which any interested party or third country refuses access to, or otherwise does not provide, necessary information within a reasonable period, or significantly impedes the investigation, preliminary or final findings, affirmative or negative, may be made on the basis of the facts available '. In the applicants ' view, the facts available must be used to calculate the normal value according to one of the methods provided for in article 2.

10 The applicants also challenge the commission ' s and council ' s use of the prices contained in the revoked undertakings as a criterion for establishing the normal value. They claim that the adjustment formula contained in the undertakings, which referred to a price index published by the federal government of the united states, bears no relation to real increases in production costs, which was in fact one of the reasons for their revocation of the undertakings. The reaction of the community authorities in taking the undertaking price as the basis for calculating the normal value renders the possibility of revoking the undertaking meaningless in practice, particularly when the reason for the revocation was the fact that the undertaking price was no longer realistic.

11 The council points out that since the applicants did not cooperate it was impossible to establish the normal value otherwise than on the basis of the revoked undertakings. The undertaking price, which is an available fact within the meaning of article 7 (7) (b), is based on the normal value and is related to the criteria laid down in article 2: the undertaking given was to charge a price eliminating the dumping margins without exceeding them. The applicants freely accepted the indexation formula for which they themselves chose the parameter.

12 The commission contends that the applicant Allied Corporation did not cooperate in its investigation and that it could not use published data on american market prices since the exporters and importers concerned disputed their accuracy and since it had reason to believe that even if those prices accurately reflected the situation on the american market they did not take sufficient account of fixed and variable production costs. On the other hand the commission did take into account the fact that in 1981 Allied Corporation had given a price undertaking to maintain its export prices in line with the normal value and that the undertaking included an indexation formula providing for the adjustment of export prices every six months. The commission, taking the period between july 1982 and the end of 1982 as a reference period, calculated the undertaking price for that reference period by applying the indexation formula and used that price to establish the normal value. For the same reasons the commission also used the undertakings given by the applicants kaiser and transcontinental to calculate the normal value.

13 This submission of the applicants must be rejected. If a firm does not cooperate in an anti-dumping investigation carried out by the commission and the information available does not enable it to establish the normal value on one of the bases mentioned in article 2 of regulation no 3017-79, the commission is entitled to take as a basis the prices which the firm undertakes to observe, which may be considered to be closest to economic reality, unless the commission possesses information indicating that those prices no longer correspond to economic reality. In recalculating the normal value it may also use the general price index referred to for adjusting the prices agreed to in the undertaking if there is a reasonable relation between the index and the firm ' s costs. Even if the applicants are correct in stating that the application of the index in question to the reference period used by the commission gives results which do not reflect the increases in their costs, the commission has shown that the alternatives which they proposed produced results even more unfavourable to them. The applicants have not therefore been able to substantiate their complaint.

Injury

14 The applicants also contest the commission ' s finding that the community fertilizer industry suffered injury as a result of dumping by the applicants.

15 They argue in particular that the retail prices of their products on the most important market in the community, the french market, were higher than those of Netherlands producers and that there could therefore be no question of injury. Imports from the united states during the 1981-1982 season decreased by 50% in relation to 1979-1980 while imports from the Netherlands increased by 800%. The council failed to take into account the effects of the price freeze in France, the anti-competitive practices of the french industry and the anti-dumping duties imposed in 1980. In any case, even if there was injury, a lower rate of duty would have been sufficient to eliminate it.

16 The council states that, after decreasing during the 1981-1982 season following the imposition of the anti-dumping duties, exports from the united states increased substantially in 1982. Exports from the Netherlands, which did not increase as much as was suggested, were carried out at considerable losses. The anti-competitive practices found in France related to a different period and different products. The imposition of an anti-dumping duty is therefore justified, even if the injury is not exclusively due to the imports in question. The commission shares the the council ' s views on the existence of dumping and injury.

17 According to article 13 (3) of regulation no 3017-79, the amount of anti-dumping duties may not exceed the dumping margin and should be less if such lesser duty would be adequate to remove the injury.

18 It follows that when the council adopts an anti-dumping regulation it is required to ascertain whether the amount of the duties is necessary in order to remove the injury. In this case, however, there is nothing in the documents before the court to suggest that the council took into consideration that aspect of the matter.

19 In the preamble to regulation no 101-83, the council deals in detail with the question whether the injury was caused by imports from the united states or by sales on the french market by producers established in other member states. It does not however discuss the question of the amount of duties necessary in order to remove the injury; its only reference in that connection is to the commission ' s view that ' lower levels would constitute a bonus for Allied Corporation ' s withdrawal from its undertaking and subsequent non-cooperation and the withdrawal from their undertakings by kaiser and transcontinental '. That consideration is not relevant to the application of article 13 (3) of the regulation. Examination of the case has not disclosed any other factors indicating that the council took into account that article in fixing the amount of the anti-dumping duties. It must therefore be concluded that the regulation was adopted in disregard of article 13 and that it must therefore be declared void.

Costs

20 Under article 69 (2) of the rules of procedure, the unsuccessful party is to be ordered to pay the costs. Since the council has failed in all its submissions, it must be ordered to pay the costs. The commission must also be ordered to pay the costs of its invervention.

On those grounds,

The court

Hereby:

(1) Declares void council regulation (eec) no 101-83 of 17 january 1983;

(2) Orders the council to pay the costs and the commission to pay the costs of its intervention.