C-273/85
ECLI:EU:C:1988:115
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OPINION OF SIR GORDON SLYNN — JOINED CASES 273/85 AND 107/86
OPINION OF ADVOCATE GENERAL SIR GORDON SLYNN delivered on 8 March 1988
My Lords, Silver Reed Germany (hereinafter referred to collectively as 'Silver Seiko' unless the context otherwise requires) brought an action against the Council of the European The legal framework and the procedure Communities (Case 273/85) asking the Court:
For the legal framework and an outline of the procedure in this case I refer to my (1) to declare that the Definitive Duty Opinion in Joined Cases 260/85 and 106/86 Regulation is void in its entirety or void (Tokyo Electric Company v Council (TEC) at least in so far as it applies to Silver [1988] ECR 5855, at p. 5884). Seiko;
(2) alternatively, to declare Articles 1 and 2 Silver Seiko Ltd ('Silver Seiko') is a of the said regulation void; or further Japanese company which manufactures alternatively, to declare Article 1 of the typewriters. It started to manufacture and said regulation void in so far as it market electronic typewriters in 1981. Silver purports to impose a definitive anti Reed (UK) Ltd ('Silver Reed UK') and dumping duty upon electronic typew Silver Reed International GmbH ('Silver riters exported and sold in the Reed Germany") are subsidiary companies Community by Silver Seiko; and, in the of Silver Seiko which are engaged in the further alternative, to declare Article 2 sale and distribution in the EEC of elec of the said regulation void in so far as it tronic typewriters manufactured by Silver purports to order the definitive Seiko in Japan. In the Japanese domestic collection of amounts secured by way of market Silver Seiko sells its electronic provisional duty by the Provisional typewriters through a sales subsidiary, Silver Duty Regulation; Business Machines.
(3) in any event, to order the Council to By the Provisional Duty Regulation a bear all Silver Seiko's costs; provisional anti-dumping duty of 26.6% was imposed on electronic typewriters made in Japan by Silver Seiko. By the Definitive (4) order such other and further relief as Duty Regulation a definitive duty of 21 % may be lawful and equitable in the was imposed and the provisional duty circumstances. collected at the same rate.
By another application lodged the same day By an application lodged on 6 September (Case 273/85 R), Silver Seiko sought an 1985, Silver Seiko, Silver Reed UK and order in substance suspending the
SILVER SEIKO v COUNCIL
application of the Definitive Duty Regu to establish normal value was unlawful and lation. That application was dismissed by an incorrect, because Silver Seiko's domestic order of the President of the Court of 18 market prices were not in the 'ordinary October 1985, which also reserved the costs course of trade' as defined by the Basic of the interim proceedings ([1985] ECR Regulation and the domestic market prices 3475). used were not 'comparable prices' as required by the Basic Regulation. (2) The calculations of constructed value were made on an incorrect basis. (3) The computations of profit for purposes of constructed values Subsequently, in January 1986, the rate of were illegal, discriminatory and incorrect, definitive duty — and the rate for collecting because the method used for calculating the provisional duty — applicable to Silver profit was contrary to the Basic Regulation, Seiko was altered from 21 to 23 % by Regu because Silver Seiko was discriminated lation No 113/86. By an application lodged against vis-a-vis other Japanese companies on 5 May 1986 Silver Seiko sought the and because the profit calculations for Silver annulment of Regulation No 113/86 in a Seiko were numerically incorrect. fresh case, Case 107/86, with arguments identical in substance to those in Case 273/85. The two cases were joined by an order of the Court of 25 February 1987.
The Community authorities were in my view entitled to adopt the rule which they did (in Recital 4 to the Definitive Duty The Commission and Cetma have Regulation) to the effect that normal value intervened in support of the Council. should be based on actual domestic price where sales on the domestic market exceed 5% by volume of exports to the Community. Applying that rule, they based In support of its claims Silver Seiko the normal value of certain of Silver Seiko's advances a number of arguments which it models on their domestic price. The presents under the following headings: (1) domestic price used was not that of Silver normal value, (2) export price, (3) Seiko Limited but that of its sales subsidiary- comparison between normal value and Silver Business Machines, because that was export price, (4) injury to Community the first arm's length sale. In my view, for industry, (5) imposition of definitive anti the reasons additionally set out in my dumping duties, (6) definitive collection of Opinion in TEC and in my Opinion in the provisional duties, and (7) procedural Joined Cases 277 and 300/85 (Canon v irregularities. Council [1988] ECR 5731, at p. 5768), that approach was in accordance with Article 2 (3) (a) and 2 (7) of the Basic Regulation.
1. Normal Value
Silver Seiko's argument that the sales of its sales subsidiary in Japan and of its subsi Under the heading of normal value Silver diaries in the EEC were at different levels is Seiko argues as follows. (1) The determi unsubstantiated. They were in each case the nation of Japanese domestic market prices first arm's length sale, and the evidence
OPINION OF SIR GORDON SLYNN — JOINED CASES 273/85 AND 107/86
before the Court does not establish that the normal value, also fall to be rejected for the categories of purchasers in the two markets reasons given in my Opinion in TEC. were substantially different. Silver Seiko seeks to rely on allegations that on average fewer units were sold to the purchasers in Japan than to the purchasers in the EEC. However, even if proved, such allegations do not go to comparability within the meaning of Article 2 (3) (a) of the Basic Regulation but to differences in quantities for which adjustments may be granted under Article 2 (9) and (10) (b). Such adjustments were in fact claimed by Silver The Community authorities were required Seiko, but it failed to bring itself within the by Article 2 (3) (b) (ii) of the Basic Regu conditions laid down in particular in Article lation to include a reasonable margin of 2 (10) (b) (i) and the Community auth profit in the constructed normal value of the orities were entitled, in my view, to refuse models concerned. Contrary to the the claim. arguments advanced by Silver Seiko, it was lawful for the Community authorities to use the selling prices of Silver Business Machines rather than Silver Seiko and to use the combined profit margins of those two companies rather than of Silver Seiko alone for that purpose. The reasons for those conclusions are set out in full in my Opinions in Canon and TEC. As I have already indicated, I do not consider that Silver Seiko has established that sales by Silver Business Machines were at a level different from sales of Silver Seiko's subsi diaries in the EEC. In my view therefore As regards those of its models for which Silver Seiko has not shown that the method normal value was constructed, Silver Seiko of calculation was improper as alleged. challenges the approach described in Recital Moreover, Silver Seiko's argument that the 15 of the Definitive Duty Regulation use of that method infringes the principle of according to which constructed normal legal certainty falls to be rejected for the value 'is designed to lead to a normal value reasons that I gave in my Opinion in TEC. as if sales on the domestic market had taken place'. For the reasons given in my Opinion in TEC, I consider that a valid approach. Silver Seiko's argument that the Community authorities' approach represents a departure from a practice said to have been laid down in the 'Turkish cotton yarn' regulations falls to be rejected for the reasons I gave in my Opinions in Canon and TEC. Silver Seiko's arguments to the effect that the Community authorities were wrong in setting the Three of the exporters concerned (Silver constructed normal value at the level of the Seiko, Canon and Brother) were found to domestic sales subsidiary and in including have sufficient domestic sales of certain the latter's SGA expenses in the constructed models for normal value to be based on
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domestic price and in those cases the normal value of its models for which normal Community authorities found profit margins value was constructed, the Community of, respectively, 61.27% on cost for Silver authorities subtracted none of the overhead Seiko, 47.92% on cost for Canon and expenses incurred by the sales company 71.18% on cost for Brother. The Silver Business Machines but only those of Community authorities then used those the parent company Silver Seiko Limited. respective profit margins in order to However, if such costs had been deducted construct the normal value of those from profit, they would have had to be exporters' remaining models. In my view added in to the cost of production included the use of that profit margin was in the constructed normal value, and the reasonable — as required by the Basic end result of the calculation would, as I see Regulation and as stated in the first it, have been no different. Since the paragraph of Recital 16 to the Definitive argument can make no difference to the Duty Regulation — because the most normal value constructed, it has no force as realistic profit margin for Silver Seiko's a ground of annulment. models for which normal value had to be constructed was the profit margin realized by Silver Seiko on its models sold on the domestic market in sufficient quantities for normal value to be based on domestic price. For those exporters not having such sales on Accordingly all of Silver Seiko's arguments the domestic market, e. g. TEC and Sharp, under the heading of normal value in my the Community authorities used the lowest opinion fall to be rejected. of the three margins found (47.92%) as the margin to be included in constructed normal value. That does not constitute discrimi nation as Silver Seiko argues, because the exporters concerned were in different situ ations: in the case of Silver Seiko the 2. Export price group's own profit margin could be used whereas exporters in the position of TEC and Sharp did not have a representative domestic profit margin of their own which could be used. Moreover, I consider that it was within the discretion of the Community authorities, in establishing a 'reasonable' Under the heading of export price Silver profit margin for the purpose of Article Seiko argues (1) that excessive profits were 2 (3) (b) (ii) of the Basic Regulation, to deducted from its EEC resale prices and (2) take the lowest of the three actual margins that higher amounts for overhead expenses found. In my opinion they were not under were deducted from its EEC resale prices any obligation, as Silver Seiko suggests, to than were actually incurred. use an average of the three margins found.
As stated in Recital 23 of the Definitive Duty Regulation, 'export prices were finally adjusted by a profit margin for the related Silver Seiko argues that, in calculating the importer of 5 % which was considered profit to be included in the constructed reasonable in the light of the profit margins
OPINION OF SIR GORDON SLYNN - JOINED CASES 273/85 AND 107/86
of independent importers of the product specific allocation more accurately reflects concerned'. Silver Seiko does not contest the costs incurred but that they were not so the figure found for the profit of inde satisfied in the present case. Silver Seiko's pendent importers but argues that instead of main argument in this respect is that that figure the profit figure used should application of the general rule is less have been that realized by the Silver Seiko advantageous to it than application of the subsidiaries in the EEC. However, since the alternative basis which it suggests, but that transfer price between the parent company argument does not suffice to establish a case Silver Seiko Limited and its EEC subsi for departing from the general rule. For the diaries falls to be disregarded as a basis for rest, Silver Seiko in my view fails to demon export price under Article 2 (8) (b) of the strate the need for a special basis of allo Basic Regulation, so equally may the cation and accordingly the Community resulting profit realized by the subsidiary on authorities were entitled to apply the resale be left aside. Because of the asso general rule laid down in Article 2 (11). ciation between exporter and importer the Silver Seiko's argument therefore fails. Community authorities were entitled under that provision to construct export price including 'a reasonable profit margin'. It seems to me that the margin found for inde pendent importers is a reasonable one to use for this purpose, and that Silver Seiko's 3. Comparison between normal value and argument therefore should be rejected. export price
Under the heading of comparison Silver Seiko argues as follows. (1) Allowances for differences in level of trade were wrongly denied. (2) Allowances for differences in quantities were wrongly denied. As regards the 'reasonable margin for (3) Allowances for differences in terms overheads' to be allowed for in constructing and conditions of sale were wrongly denied. export price under Article 2 (8) (b) of the (4) The comparisons were a mixture of Basic Regulation, Silver Seiko argues that methods and were not made at the same the overheads of its EEC subsidiaries should time or on a transaction-by-transaction have been allocated, as between electronic basis. typewriters and other types of business machines sold by those companies, on the basis of the number of units sold not on the basis of turnover. However, Article 2 (11) of the Basic Regulation provides that allo cation should normally be 'in proportion to the turnover for each product and market On a balance of the evidence put before the under consideration'. The Community auth Court, I consider that Silver Seiko has failed orities have followed that general rule here. to demonstrate any error in the finding, set The Council has stated that the Community out in the last paragraph of Recital 25 to authorities may depart from that general the Definitive Duty Regulation, that 'the rule in cases where they are satisfied that a composition of the categories of customers
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is similar for both domestic and export Silver Seiko relies on discounts on two of its sales'. For that reason and for the reasons models to one particular customer in Japan. given in my Opinions in TEC and Canon, I However, neither during the investigation consider that Silver Seiko's argument nor during these proceedings has Silver concerning the level of trade falls to be Seiko produced any real evidence that such rejected. discounts were 'made freely available in the normal course of trade' as required by Article 2 (10) (b) (i). It has not been shown that there was a pattern of quantity discounts or that the discounts alleged were known and freely available to all potential purchasers. Therefore, Silver Seiko failed to fulfil the conditions laid down in Article As to allowances for differences in quan 2 (10) (b) (i) and its argument concerning tities, Article 2 (10) (b) (i) of the Basic allowances for differences in quantities is Regulation provides inter alia: 'If the export not made out. price and the normal value are not on a comparable basis in respect of [inter alia quantities], due allowance shall be made in each case, on its merits, for differences affecting price comparability. Where an interested party claims such an allowance, it must prove that its claim is justified. The following guidelines shall apply in deter mining these allowances: Differences in quantities: allowances shall be made when the amount of any price differential is wholly or partly due to [inter alia] price discounts for quantity sales which have been made freely available in the normal course of trade over a representative preceding period of time, usually not less than six months, and in respect of a substantial proportion, usually not less than 20 %, of As regards differences in terms and the total sales of the product under conditions of sale, Silver Seiko claims that it consideration made on the domestic was wrongly refused allowances for (1) the market'. Under this provision Silver Seiko interest costs of 'inventory' held by Silver had to claim such allowances and justify its Business Machines and (2) the cost of credit claim. Furthermore, it had to show that the granted by Silver Business Machines to price differentials were 'due to' price purchasers in Japan. In fact the Community discounts for quantity sales. If a price authorities did made an allowance for credit differential were in fact due to dumping, it to customers in Japan. The number of days would defeat the purpose of the Basic credit allowed for was substantial but Silver Regulation if it could be attributed to Seiko contends that it should have been quantity discounts and removed as such somewhat higher. (The exact figures are from the terms of the comparison. The confidential.) The cost of the remaining detailed guidelines laid down in Article days credit to customers and the interest 2 (10) (b) (i), it seems to me, are aimed at cost of holding stock have not been shown ensuring that allowances are made only to be directly related to the sales under where they can genuinely be attributed to consideration as required by Article quantity discounts. 2 (10) (c) of the Basic Regulation, and
OPINION OF SIR GORDON SLYNN — JOINED CASES 273/85 AND 107/86
therefore were lawfully disallowed. Silver Silver Seiko also complains that the Seiko suggests that they should have been weighted average for the export prices was a allowed because corresponding expenses monthly one whereas the weighted average had been deducted in establishing the export for the normal value was an annual one, in price in the Community. However, that breach of the provision in Article 2 (9) of suggestion is based on an assumption that the Basic Regulation that export price normal value and export price must be and normal value 'shall normally be calculated in the same way, which is compared ... as nearly as possible at the unfounded for the reasons given in the same time'. It appears that a single normal 'Mini ball-bearings' judgments and in my value was indeed determined for the entire Opinions in TEC and Canon. Accordingly reference period (of one year) whereas Silver Seiko's argument concerning export prices were calculated for each allowances in respect of differences in terms month during that period. However, each and conditions of sale fails. monthly export price was compared with normal value, the differences were weighted by the quantities sold in each month and an annual average was arrived at. It follows that the export prices and the normal value relate to the same 12-month period and that Silver Seiko's argument is unsubstantiated.
Article 2 (13) (b) of the Basic Regulation Accordingly all of Silver Seiko's arguments provides: 'Where prices vary, the dumping concerning the comparison between normal margin may be established on a transaction- value and export price in my opinion fall to by-transaction basis or by reference to the be rejected. most frequently occurring, representative or weighted average prices'. It clearly does not stipulate that comparison of normal value and export price may be effected only on a transaction-by-transaction basis. Recital 17 to the Definitive Duty Regulation states: 'Normal value was generally compared with export prices on a transaction-by-trans 4. Injury to Community industry action basis'. From the use of the word 'generally' it is clear that the Council did not claim that all the comparisons were made on a transaction-by-transaction basis. For Silver Seiko they were not made on such a basis but by reference to weighted average prices. In my opinion, that method of comparison was in accordance with Under the heading of injury, Silver Seiko Article 2 (13) (b) of the Basic Regulation argues as follows. (1) The failure to exclude and was truly reflected in Recital 27 of the from the injury determination those EEC Definitive Duty Regulation, contrary to producers which were themselves importers what Silver Seiko argues. of allegedly dumped products invalidates the
SILVER SEIKO v COUNCIL
entire injury analysis. (2) There has not 6. Definitive collection of the provisional been an adequate injury analysis as required duties by the Basic Regulation, because the injury factors specified in Article 4 (2) of the Basic Regulation have not been properly analysed, because the so-called 'target-price' system used by the Commission and Council is an Under this heading, Silver Seiko contests inadequate basis upon which to determine the definitive collection of the provisional injury, and because any injury to the duties on the grounds that provisional duties Community industry has been caused by have a maximum period of validity of either factors other than dumping by Silver Seiko, four or six months and that they must be and therefore the alleged injury has been definitively collected before their expiration. wrongfully attributed to Silver Seiko.
Article 11 (5) of the Basic Regulation provides: 'Provisional duties shall have a I reject all of these arguments concerning maximum period of validity of four months. injury for the reasons given in my Opinions However, where exporters representing a in Canon and TEC. significant percentage of the trade involved so request or, pursuant to a notice of intention from the Commission, do not object, provisional anti-dumping duties may be extended for a further period of two months'. Article 11 (7) provides: 'After 5. Imposition of definitive anti-dumping expiration of the period of validity of duties provisional duties, the security shall be released as promptly as possible to the extent that the Council has not decided to collect it definitively'. Silver Seiko argues that the Provisional Duty Regulation Under this heading, Silver Seiko argues as expired on its own terms on 22 April 1985 follows. (1) By strictly setting the definitive or as extended by Council Regulation No duty rate at the alleged injury level attained 1015/85 (Official Journal 1985, L 108, p. 18) on 22 June 1985 and that, since the by use of the so-called 'target-price' system, Definitive Duty Regulation did not come duties have been set at a rate which is into effect until 23 June 1985, it could not higher than any actual dumping margin or validly collect the provisional duties as it injury level, and the duties have been set purported to do since they had already without adequate reasoning as to an appro expired. priate rate of duty. (2) The imposition of definitive duties on the applicants and the failure to impose definitive duties on Nakajima constitutes illegal discrimination.
That argument, however, does not take account of the effect of Council Regulation No 1182/71 of 3 June 1971 determining the rules applicable to periods, dates and time- Both of these arguments fail for the reasons limits (Official Journal, English Special given in my Opinions in Canon and TEC. Edition 1971 (II), p. 354). According to that
OPINION OF SIR GORDON SLYNN — JOINED CASES 273/85 AND 107/86
regulation, in particular Articles 3 and 4 Silver Seiko also argues that, since it did thereof, the relevant acts of the Council and object to an extension, the Council was not Commission took effect as follows. (1) The allowed to extend the provisional duties Provisional Duty Regulation entered into under Article 11 (5) of the Basic Regu force according to its Article 3 on the day lation. However it appears that only Brother following its publication in the Official and Silver Seiko objected to the extension Journal, i. e. on 23 December 1984 at 00.00 whilst the other exporters concerned either hours. It expired on 23 April 1985 at 24.00 did not object or even approved such an hours (i. e. with the expiry of the last hour extension. Those other exporters in my view of the day falling on the same date as the plainly represent 'a significant percentage of day from which the period ran). (2) Council the trade involved', so that the condition in Regulation No 1015/85 (with corrigendum Article 11 (5) was in fact fulfilled, contrary in Official Journal 1985, L 112, p. 59) to Silver Seiko's contention. entered into force according to its Article 2 on the day following its publication in the Official Journal, i. e. on 21 April 1985 at 00.00 hours and extended the validity of the In my opinion, therefore, Silver Seiko's provisional anti-dumping duties for a period arguments concerning the definitive of 2 months beginning on 23 April 1985 at collection of the provisional duties are not 00.00 hours (date stipulated in the second made out. paragraph of Article 2 as corrected) until 23 June 1985 at 24.00 hours (i. e. until the expiry of the last hour of the day falling on the same date as the day from which the period ran). (3) The Definitive Duty Regu 7. Procedural irregularities lation entered into force according to its Article 3 on the day following its publi cation in the Official Journal, i. e. on 23 June 1985 at 00.00 hours. At that date and Finally, under the heading of procedural time therefore the Council's decision that irregularities, Silver Seiko argues that it was the provisional duties were to be definitively not granted equal access to information or collected became effective. At that date and an equal opportunity to respond and that its time, contrary to Silver Seiko's contention, rights to provide a defence were violated. the Provisional Duty Regulation was still valid.
In dealing with these arguments it must be borne in mind that the procedure in anti dumping investigations is governed in great detail by the provisions of Articles 7 and 8 of the Basic Regulation. Article On that view, it is not necessary to decide 7 (4) (c) (iii) of the Basic Regulation whether the words 'decided to collect' in provides: 'information shall normally be Article 11 (7) of the Basic Regulation refer given no later than 15 days prior to the to the date when the Council takes the submission by the Commission of any decision or the date when the act proposal for final action pursuant to Article embodying the decision enters into force. 12. Representations made after the infor Although either view is arguable, it would mation is given shall be taken into seem to me at first sight that the former is consideration only if received within a the more likely interpretation. period to be set by the Commission in each
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case, which shall be at least 10 days, due to assess how much the matters complained consideration being given to the urgency of of prejudiced Silver Seiko vis-à-vis Canon, the matter'. It appears that formal disclosure and says: 'This deprivation of time and on the level of duty in this case was made information is intangible'. Indeed it is; and by telex to all exporters on the same moreover it must be set in its practical date — 6 May 1985 — and that the same context. Although the ideal may be for the time-limit—17 May 1985 at 09.00 hours, Community authorities to ensure that i. e. 10 days — was set for all replies. The exporters are each given an equal oppor proposal for the Definitive Duty Regulation tunity to respond to information, it may not was transmitted to the Council on 24 May 1985. The information was thus given to the always be practicable — particularly in a exporters 18 days prior to the submission of large proceeding such as the present one r the proposal. It follows in my view that in — fo them to arrange simultaneous the present case the requirements of Article meetings with interested parties or simul 7 (4) (c) (iii) were respected by the taneous disclosure. I do not consider that Commission. Silver Seiko has established that the matters complained of amount to an actual infringement of the principle of equality — if that is the correct one to invoke in this context — or any other principle of fair procedure.
Silver Seiko also complains, however, that before the telex of 6 May 1985, indeed before the disclosure meeting of 25 April 1985, another exporter — Canon — was given substantial amounts of information concerning dumping calculations, dumping margins and the calculations to be used by the Commission for determining injury, whereas Silver Seiko did not receive such information until the telex of 6 May 1985. Silver Seiko contends that this treatment Silver Seiko complains of the difficulty of gave Canon more time to prepare its arranging appointments with Commission response, which was in breach of the officials at times which were convenient to principle of equality. it. As a general complaint, that does not amount to a ground for annulment. Silver Seiko instances one case where one of its counsel were allegedly denied access by the Commission to its files. However, it appears that there is no request on the Commission's files to which no reply was given but that, if I accept that general principles of fair a representative of one of the exporters procedure may on occasion be relied on in appeared without prior notice at the anti-dumping proceedings even where the Commission's offices to consult a file, such express provisions of the Basic Regulation a request may not have been granted. concerning procedure have been complied Article 7 (4) (c) (i) of the Basic Regulation with, but it must first be shown in what way requires such requests to be made in writing the express procedural rules fail to provide and it appears that the practice is that a adequately for the situation complained of. mutually convenient date is then arranged. I In my view Silver Seiko does not make out consider therefore that Silver Seiko has not such a case. It admits itself that it is difficult made out any ground for complaint here.
OPINION OF SIR GORDON SLYNN - JOINED CASES 273/85 AND 107/86
Silver Seiko next complains of being however, that at a meeting on 10 January deprived of information on a number of 1985 the Community authorities explained points relating to the determination of to Silver Seiko that the details of injury. It complains that it requested details investments by sector were considered to be of the volume of EEC imports from of a highly sensitive and confidential nature Sweden, Switzerland, Singapore and the and that their disclosure would lead to USA, but were given details only for the injury being caused to the producers USA and Singapore and that those details concerned. In my opinion, it was plainly were in a composite form which did not correct to withhold such information under make it possible to distinguish the volume of Article 8 of the Basic Regulation. imports from Singapore or the USA indi vidually. The Council asserts, without contradiction, that using this information and setting it against the figures published in Recitals 31 and 32 of the Provisional Duty Regulation, Silver Seiko could work out for itself the aggregate figure for imports of Swedish and Swiss origin. Silver Seiko's complaint therefore boils down to one that it was not given separate figures In connection with the establishment of the for each of the countries concerned. It is target prices, Silver Seiko claims that it was obvious that such figures are important refused a breakdown of the Commission's commercial intelligence, and the Com analysis which it had requested on the basis munity authorities had to treat it with due of Silver Seiko's models and the regard for the confidentiality provisions in comparisons with EEC producers, and on a Article 8 of the Basic Regulation. In model, company, and country basis. particular the figures in question had to be However, such information would have treated as confidential because they would enabled Silver Seiko to determine each concern only one company in Sweden, one Community producer's cost of production. in Switzerland and one in Singapore, and Such information is clearly confidential only two companies in the USA. Therefore, within the meaning of Article 8 of the Basic in my view, the information was properly Regulation, and in my opinion was properly withheld in accordance with Article 8 of the withheld under that provision. Basic Regulation.
Finally, Silver Seiko complains that it was refused information as to how the target prices were computed for each of the complainants. However, it appears that at a Silver Seiko also claims that information on disclosure meeting on 25 April 1985 the the past and future investment plans of EEC method used for the calculation of the manufacturers was not given. It appears, target price was disclosed and that it was
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pointed out that the individual cost and Case 107/86 profit figures were highly confidential and that their disclosure would be likely to harm The Council has submitted that Silver the Community producers. Subsequently by Seiko's second application (Case 107/86) telex dated 6 May 1985 the Community should be dismissed as inadmissible or at authorities gave the overall profit margin least that Silver Seiko should be ordered to used in calculating the target prices. It seems pay the costs of that application in any to me that the Community authorities thus event because it is repetitious. However, for gave all the information that they could in the reasons which I gave in my Opinion in this respect consistently with Article 8 of the TEC in relation to TEC's second Basic Regulation. application (106/86), I consider that Silver Seiko's second application here (107/86) Accordingly, in my view, Silver Seiko's should be treated as admissible and that the complaints concerning the alleged proce costs thereof should follow those in Case dural irregularities are all unfounded. 273/85.
Conclusion
Accordingly , in my opinion , Cases 273 / 85 and 107 / 86 should be dismissed and the applicants ordered to pay the costs of the Council , the Commission and Cetma , including the costs of the proceedings for interim measures .