C-301/85

Sharp Corporation of Japan ('Sharp') is a Japanese company which manufactures inter alia calculators, office copiers and cash (3) further or alternatively declare the said registers. Sharp began to produce and regulation void: market electronic typewriters in 1982. It did not, at least during the relevant period, market them in Japan but manufactured them exclusively for export. Its electronic typewriters are imported for sale and distri­ (a) in so far as it purports to impose a bution in the United Kingdom and Ireland definitive anti-dumping duty of by its subsidiary Sharp Electronics (UK) Ltd 32 % upon electronic typewriters ('Sharp UK') and for sale and distribution originating in Japan and manu­ in the continental Member States by its factured or exported by Sharp, or subsidiary Sharp Electronics (Europe) GmbH ('Sharp Germany').

(b) in so far as it purports to do so in respect of the period until, if ever, effective measures are taken by the institutions to bring to an end the The Provisional Duty Regulation imposed a discrimination against Sharp relative provisional duty of 21 . 1 % on Sharp. The to Nakajima created by the Definitive Duty Regulation required the contested regulation;

OPINION OF SIR GORDON SLYNN — CASE 301/85

(4) further or in the further alternative, to (2) failure to calculate normal value on declare the said regulation void in so far an ex-factory basis and wrongful as it purports to order that the amounts comparison of normal value not so secured by way of provisional duties in calculated with export price so respect of such electronic typewriters calculated, manufactured by Sharp and exported to the Community should be definitively collected (3) wrongful deduction from the export price in respect of credit granted by Sharp Germany, (a) at all, or

The detailed arguments in support of these since Sharp, and therefore its domestic sales contentions, which are summarized in the company, made negligible domestic sales of repon for the hearing, in my view fail for electronic typewriters (which was the very the reasons given in my Opinions in TEC reason why normal value had to be and in Joined Cases 277 and 300/85 Canon constructed for Sharp) there was no v Council. 'category of [domestic] customers' and, a fortiori, 'the composition of the categories of customers' could not, as alleged in Recital 25, be 'similar for both domestic and export sales'. Accordingly, the reason given in Recital 25 to the Definitive Duty Regu­ lation for rejecting this claim by Sharp was manifestly unfounded and defective. In Sharp's submission the resulting comparison of export price and normal value was an improper comparison, was not at the same level of trade and was not a fair comparison as required by Article 2 (9) of the Basic Ground 2 : Failure to calculate normal value Regulation. on an ex-factory basis and wrongful comparison of normal value not so calculated with export price so calculated

Those arguments, in my opinion, fall to be rejected for the reasons given in my Opinions in TEC and Canon.

marks (or by the costs which would have In my opinion, this argument by Sharp is been incurred by the customers in other misconceived: If an exporter is dumping, it Member States borrowing in German is dumping, and it cannot exculpate itself by marks, which would have been the same). pointing to another exporter which may or may not be dumping. For this reason, as I elaborated in my Opinion in TEC, I The text of Article 2 (8) (b) of the Basic consider that Sharp's fourth ground of Regulation does not make any express annulment should be rejected. provision in regard to the question raised by

countries: Belgium, Denmark, the their own Member State if they had needed Netherlands, Italy, Ireland, France and to raise their own credit. Accordingly, I Germany. Sales to all countries were made would reject Sharp's third ground of in German marks except the United annulment. Kingdom and Ireland, where it was in pounds sterling. Thus, the margin of dumping was in all cases expressed in Ground 4: Discrimination in comparison German marks except for the United

Co . Ltd. ('Nakajima') which was based on course, to an incorrect result.' Moreover, the same new approach as to profit margin the Commission and Council have not as that used to calculate the definitive anti contested the figure of 16.08% calculated dumping duty for Sharp. by Sharp.

When Sharp pointed out the error to the provisionally (32 as against 21.1%), the Commission, the latter replied by a letter Community authorities were under no obli­ dated 7 February 1985: 'The Commission gation to collect less than the original rate does not intend to modify the provisional of provisional duty. duty in view of the calculating error referred to by Sharp. In fact, it has come to light that there are two more calculation Sharp also argues that it could have brought discrepancies, this time disadvantageous to a successful action for the annulment of the Sharp, which will equally be taken into Provisional Duty Regulation to the extent consideration for a final determination'. The of the arithmetical error but refrained from Court has not been informed what those doing so on the undertaking by the other 'calculation discrepancies' consisted of Commission that the arithmetical error or how large they were. On the basis would be taken into account at the indicated, however, the Commission definitive stage. imposed the provisional duty of 21 . 1 %. It is apparent from the text of the Commission letter, cited above, that the Commission did not undertake that the The Council has stated, and Sharp has not, provisional duty would be collected at less as I see it, contested, that both sets of errors than the full rate (21.1%). It only stated were taken into consideration for the final that the error complained of by Sharp determination, as the Commission had would be taken into consideration for a announced in its letter. The final determi­ final determination along with other errors nation established a substantially higher having the opposite effect, and that was dumping margin than the Provisional Duty done. There is nothing there to give rise to Regulation had found (52.98 as against any legitimate expectation on the part of 21.1%). It also found that Sharp's dumped Sharp or any estoppel against the imports had been causing injury to the Community authorities. Furthermore, I do Community industry at 32.38% which, as not accept that an action brought against the lower of the two figures, determined the the Provisional Duty Regulation would rate of the definitive duty at 32 %. necessarily have been successful since the extent of the other 'calculation discrep­ ancies' is not known to the Court. In my opinion, the error complained of was taken into account in the Definitive Duty Regulation. Since the definitive findings Therefore I consider that Sharp's fifth justified a higher duty than that imposed ground of annulment falls to be rejected.