C-305/86

B — The admissibility of the applications brought by the importers against the definitive regulation I-2970

C — The admissibility of the application brought against the definitive regulation as a

whole I-2972

III — The substance I-2973

General I-2973

A — Normal value I-2973

(b) Is Yugoslavia a market-economy country? I-2975

(c) Do the Yugoslav prices constitute an appropriate and reasonable

basis for comparison? I-2977

(3) Was the normal value correctly calculated? I-2978

(a) The rate of exchange of the Yugoslav dinar I-2978

* Original language: Dutch. I - 2967

— Assessment I-2982

C — Injury I-2984

— Applicable provisions 1-2984

— Summary of the applicants' submissions I-2984

— Assessment 1-2984

(1) Is the cumulative calculation of injury incorrect? 1-2984

— Assessment 1-2988

E — The application of the anti-dumping duty to spare parts 1-2989

F — The entry into force of the definitive regulation 1-2990

IV — General conclusions 1-2991

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NEOTYPE TECHMASHEXPORT v COMMISSION AND COUNCIL

1 — Commission Regulation (EEC) N o 3019/86 of 30 Since the abovementioned cases relate to the September 1986 imposing a provisional anti-dumping duty same regulations and the submissions and on imports of standardized multi-phase electric motors having an output of more than 0.75 kW but not more the arguments put forward by both the than 75 kW, originating in Bulgaria, Czechoslovakia, the applicant and the defendants in the various German Democratic Republic, Hungary, Poland, Romania and the USSR (OJ 1986 L 280, p. 68). This regulation cases to a large extent overlap, this Opinion will be referred to in this Opinion as 'the provisional regu- is given in respect of all those cases. lation' and the electric motors specified therein will be referred to simply as 'electric motors'. 2 — Council Regulation (EEC) N o 864/87 of 23 March 1987 imposing a definitive anti-dumping duty on imports of standardized multi-phase electric motors having an output of more than 0.75 kW but not more than 75 kW, orig- inating in Bulgaria, Czechoslovakia, the German Demo- cratic Republic, Hungary, Poland and the USSR, and As regards the facts, the course of the definitively collecting the amounts secured as provisional procedure and the submissions and duties (OJ 1987 L 83, p. 1). This regulation will be referred to in this Opinion as 'the definitive regulation'. arguments of the parties, reference is made 3 — Council Regulation (EEC) No 2176/84 of 23 July 1984 on to the various Reports for the Hearing. protection against dumped or subsidized imports from countries not members of the European Economic Those items shall only be referred to in this Community (OJ 1984 L 201, p. 1). This regulation has Opinion in so far as is necessary for the since been superseded by Council Regulation (EEC) No 2423/88 of 11 July 1988 (OJ 1988 L 209, p. 1). reasoning.

In Case C-305/86 the Commission states Like the definitive regulation in issue in the that the provisional regulation no longer has abovementioned cases, Regulation No legal effect since the definitive regulation 864/87 similarly provided for the definitive provided for the definitive collection of the collection of the amounts secured by way of amounts secured by way of provisional duty provisional duty, and did so on the basis of at the level of the amounts calculated in the rules applicable to the collection of the accordance with the scale of definitive definitive duty. In accordance with the duties imposed. 4Gimelec's view is similar abovementioned case-law of the Court, the but is reasoned differently. According to the challenge made by Enital, Neotype and intervener, the imposition of a provisional Stanko against the provisional regulation anti-dumping duty constitutes an interim has therefore lost its purpose and there is measure against which, as such, no therefore no need to give a decision on their proceedings may be brought on the basis of submissions in that regard. I may confine Article 173 of the Treaty. Neotype is the myself, therefore, to an examination of the only applicant to have presented argument submissions relied on against the definitive against the objection of inadmissibility. It regulation. asserts that the provisional regulation continues to have legal effect even after the imposition of a definitive anti-dumping duty. B — The admissibility of the applications brought by the importers against the definitive regulation

value of electric motors with the export Enital, Neotype and Stanko also refute the price to the Community and not with the objection of inadmissibility raised by price at which the imported product was Gimelec. I refer to the various Reports for resold by the importer to an independent the Hearing for details of their arguments. 8 buyer. In Gimelec's view, the importers in question are therefore in the same situation as the importer Demufert, whose action was declared inadmissible by the judgment given 7. Since the Court may of its own motion on 21 February 1984 in the Allied raise the admissibility of an application, it is Corporation case. 7 not necessary for me here to go into the question whether an intervener may itself raise an objection of inadmissibility which has not been raised by one of the parties in

regulation. That rule is substituted by their resale prices, as provided for in Article another rule whereby it is the price at which 2(8)(b) of Regulation No 2176/84 where the product is resold to an independent there is an association between exporter and buyer which serves as the basis for calcu- importer (paragraph 16 of that order). lating the anti-dumping duty. According to the Council and the Commission, the important factor from the point of view of admissibility is that the Council did not In the judgment which it gave on 5 October merely impose that derogating provision on 1988 in the Canon case, 10 the Court all connected importers but expressly declared it applicable to seven importers 8 — See point III. 1 of the Report for the Hearing in Cases named in the regulation, amongst whom C-304/86 and C-185/87, point IV.2.(a) of the Report for the Hearing in Cases C-305/86 and C-160/87 and point were Enital, Neotype, Stanko, Sofbim and IV.3.(a) of the Report for the Hearing in Cases C-320/86 Elprom-Verkaufs-GmbH.

I-2971

OPINION OF MR VAN GERVEN—JOINED CASES C-305/86 AND C-160/87

indicated at paragraph 8 that the situation Serines case, mentioned above, also involved mentioned above is illustrative and that the an exclusive importer of electric motors regulations in question may also be of direct originating, in that case, in the German and individual concern to importers by Democratic Republic. The Court did not virtue of other provisions than those consider that factor to be relevant concerning a finding of dumping. That is (paragraph 18). I therefore propose that the the situation in the present cases since Court should declare the application (where there is an association between brought by Elprom-Parma to be inad- exporter and importer), for the purpose of missible, but should otherwise dismiss the calculating anti-dumping duty account is to objection of admissibility analysed above. be taken (see Article 1(4) (a) of the definitive regulation) of the customs value as determined in accordance with Article 6 of Regulation (EEC) No 1224/80, 11 that is to say a customs value based on the price at which the imported products are sold to C — The admissibility of the application independent buyers. 12 brought against the definitive regulation as a whole

It follows, in my opinion, that all associated importers to whom this particular method of 9. Neotype and Stanko request the Court calculation is to be applied are directly and to annul the definitive regulation in so far as individually concerned by the regulation it relates to imports of electric motors from irrespective of whether they are individually the Soviet Union. The action brought by named in the regulation. Electroimpex and Enital is more broadly based. They request the annulment of the definitive regulation in its entirety.

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NEOTYPE TECHMASHEXPORT v COMMISSION AND COUNCIL

inating in Bulgaria and the Soviet Union the basis of the production costs of the most respectively. efficient industrial producers, to which was added a profit margin of 4%. The anti- dumping duty thereby fixed represents an increase of approximately 25% in relation to the import prices during the reference III — The substance period. Thus the anti-dumping duty is clearly lower than the dumping margins established. 15 General

A — Normal value

10. Hereinafter I will successively examine the applicants' submissions against the definitive regulation as regards the determi- Applicable provisions nation of normal value (A), the comparison of normal value with the expon price (B), the assessment of injury (C), the determi- 11. The concept of dumping involves a nation of the anti-dumping duty (D), the comparison between two items. In principle application of the duty to spare parts (E) those are: the export price of the relevant and the entry into force of the definitive product and the normal value of a like regulation (F). product. In accordance with Article 2(3)(a) of Regulation No 2176/84 the normal value is understood to be:

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OPINION OF MR VAN GERVEN — JOINED CASES C-305/86 AND C-160/87

Assessment Enital,16 Neotype, 17 Stanko 18 and Elec-

16 — See paragraph III.2.(d)(i) of the Report for the Hearing in (1) Do Yugoslavian electric motors Cases C-304/86 and C-185/87. constitute like products? 17 — See paragraph III.2.(b)(i) of the Repon for the Hearing in Cases C-305/86 and C-160/87. 18 — See paragraph III.2.(b)(aa)(¡) and (ii) of the Report for 19 — See paragraph III.2.(b) of the Report for the Hearing in the Hearing in Cases C-320/86 and C-188/87. Case C-157/87.

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NEOTYPE TECHMASHEXPORT v COMMISSION AND COUNCIL

14. Neotype and Stanko take the view that (b) Is Yugoslavia a market-economy the definitive regulation does not contain a country? sufficient statement of reasons for the choice of the reference country. They observe in particular that the regulation does not explain why countries which had 15. Neotype, Stanko and Electroimpex been proposed as reference countries at dispute that Yugoslavia can be regarded as a stages prior to the imposition of the market-economy country. definitive anti-dumping duty (that is Brazil in the context of Commission Regulation (EEC) No 724/82 of 30 March 1982 20 and Sweden in the context of the On that point I would first point out that it is the settled practice of the Council and the 20 — Commission Regulation (EEC) No 724/82 of 30 March Commission to regard Yugoslavia as a 1982 imposing a provisional anti-dumping duty on imports of standardized multi-phase electric motors having an market-economy country for the purpose of output of more than 0 75 kW but not more than 75 kW, calculating the normal value of 'dumped' originating in Bulgaria, Czechoslovakia, the German Democratic Republic, Poland, Romania and the Soviet Union and closing the procedure with regard to imports 21 — See inter aha the abovementioned judgment in the Nachi of those products originating in Hungary (OJ 1982 L 85, p. 9). Fujikoihi case, paragraph 39.

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OPINION OF MR VAN GERVEN — J O I N E D CASES C-305/86 AND C-160/87

That provision provides no definition of the concept of 'non-market economy countries', but refers to Regu- Moreover, in the abovementioned Tech- lations (EEC) Nos 1765/82 23 and nointorg judgment the Court, if not 1766/82, 2 4 which designate the countries expressly then by implication, recognized which must in any event be regarded as Yugoslavia as a market-economy country. non-market-economy countries. Yugoslavia That case involved an anti-dumping regu- is not listed amongst the countries cited in lation in which Yugoslavia had been chosen those regulations. as the reference country for determining the normal value of deep-freezers exported from the Soviet Union. In that case Tech- nointorg had contended that the constructed value of the relevant product in Yugoslavia should have been used as the criterion for determining the normal value and not the prices charged on the Yugos-

That prices are determined by the State auth- 26 — Note 2 to Article VI of the GATT provides as follows: 22 — See P. Vandoren: 'Mise en œuvre de la politique anti- 'It is recognized that, in the case of imports from a dumping de la CEE contre les importations en provenance country which has a complete or substantially complete des pays à commerce d'État', Revue du marché commun, monopoly of its trade and where all domestic prices are N o 316, April 1988, p. 198 et seq. fixed by the State, special difficulties may exist in deter- mining price comparability for the purposes of paragraph 23 — Council Regulation (EEC) N o 1765/82 of 30 June 1982 1, a n d i n such cases importing contracting parties may find laying down Community rules for exports from State- it necessary to take into account the possibility that a strict trading countries (OJ 1982 L 195, p. 1). comparison with domestic prices in such a country may 24 — Council Regulation (EEC) N o 1766/82 of 30 June 1982 not always be appropriate.' laying down Community rules on exports from the 27 — See in particular Annex 25 where it is stated that the People's Republic of China (OJ 1982 L 195, p. 21). Yugoslav economic system differs on essential points (no 25 — Yugoslavia acceded to GATT in 1966. In contrast to the central State planning, independence of undertakings inter protocol on the accession of Poland, Romania and alia with regard to price formation, no monopoly with Hungary, the Yugoslav protocol contains no derogations regard to external trade) from East European countries from GATT principles. with a centrally planned economic system.

16. Even if Yugoslavia is deemed to be a country with a market economy, Neotype, Stanko and Electroimpex dispute the choice of Yugoslav prices as an appropriate and reasonable basis of comparison. 18. Following the imposition of a provisional anti-dumping duty by way of Regulation No 3019/86 —in which the Commission chose Sweden as the reference 17. In choosing a reference country the country — the Commission received a institutions must, in my view, try to find a complaint that imported electric motors country where the prices of the like product originating in Yugoslavia were being are formed in circumstances which are as dumped. The Commission then began an comparable as possible to those of the investigation which gave it the opportunity exporting country, provided that it is a of becoming acquainted with the Yugoslav market-economy country. The normal value market and conducting on-the-spot determined on the basis of data relating to a inspections with three Yugoslav manufac- reference country never provides a perfect turers and exporters of electric motors. basis for comparison. Each reference Although the anti-dumping proceeding with country presents specific problems. Article regard to imports originating in 2(5) of Regulation No 2176/84 therefore Yugoslavia — for the purposes of which the merely states that the choice of the normal value was determined on the basis of reference country must be 'appropriate and the prices charged on the Yugoslav not unreasonable'. market — was independent of the proceeding which led to the adoption of Regulation No 864/87, the subject of these

proceedings, it nevertheless dealt with like the Council and the Commission stated that products. In order to place all countries the Yugoslav manufacturers may freely exporting to the Community and concerned determine both their import and export by both proceedings on the same footing, prices (see also above, at paragraph 15, note the institutions discarded Sweden which had 27) and that, at the time of the investi­ been used as the reference country in the gation, there were not insignificant price context of the provisional regulation, and in differences on the Yugoslav market, if not the definitive regulation chose the prices as regards the gross price, at least as regards charged on the Yugoslav market as the basis the net price invoiced to customers. In fact of comparison for the determination of the significant differences existed with regard to normal value. payment periods which is of considerable importance in a country with high inflation. The applicants have submitted no specific evidence in order to invalidate these findings. In the circumstances it seems to me that the choice of Yugoslavia as the reference country is in no way arbitrary but was inspired by considerations of sound admin­ istration. In making that choice did the In the circumstances the choice of Yugoslav institutions commit any irregularities or prices as the basis of comparison was not, it errors of assessment? That is not, it seems to seems to me, irregular, but fell within the me, the case, as may be seen from an limits of the discretion enjoyed by the analysis of the arguments put forward by Council and the Commission. That seems to the applicants, and in particular by Neotype, me to be all the more so since the choice of in this connection. Yugoslav prices led to a finding of a signifi­ cantly smaller dumping margin (varying from 121 to 146%), thus one more favourable to the applicants, than if Sweden had been chosen as the reference country 19. Neotype submits that the Yugoslav (margin varying between 192 and 283%). market for electric motors is relatively small Moreover, none of the applicants has shown and that practically no imported motors are that a comparison with the prices charged in sold in it. Neotype also considers that the a non-member country would have led to a prices of electric motors sold on the smaller dumping margin still. Yugoslav market are not determined by the interplay of supply and demand and therefore do not afford an appropriate basis for comparison. (3) Was the normal value correctly calculated?

used for the conversion of Yugoslav prices The rate of exchange of the dinar fixed by does not carry conviction. the Yugoslav authorities is the only official rate of exchange recognized as such by the International Monetary Fund. 31 All commercial transactions with foreign countries, whether import or export oper- ations, must be conducted through the intermediary of specially recognized banks For the sake of comprehension, the problem which apply the official rate of exchange for should be placed in its general context, that the conversion of dinars into foreign is to say in the context of the provisions on currency or vice versa. The bank rate the establishment of the dumping margin. In suggested by Neotype is not an official rate. accordance with Anicie 2(13)(a) of Regu- Moreover, it is a bank note rate defined on lation No 2176/84, the dumping margin is a market which is hardly relevant to and established by comparing the export price representative of commercial transactions with the normal value. 3 0 As regards since it relates only to a small volume and products exported from a market-economy functions erratically. In fact the market country the normal value is in principle derives principally from transactions carried established on the basis of the price payable out by individuals who wish to acquire for a like product intended for consumption dinars in bank notes for the purposes of a in the relevant country (see Article 2(3)(a) stay in Yugoslavia. That is illustrated in of Regulation No 2176/84). In such a particular by the considerable variation in situation, two amounts are involved in the the rate for notes from establishment to finding of the dumping margin — the export establishment. Within the same estab- price and the price payable for consumption lishment, moreover, the buying and selling on the domestic market — both formed on prices differ widely. The exchange rate the basis of actual transactions, but usually suggested by Neotype is not an average rate expressed in different currencies. For the but a buyer's rate. In the determination of purposes of comparison both amounts must a dumping margin, where it is a question then be converted into the same currency. of comparing two amounts expressed in different currencies, the use of a buyer's rate, it seems to me, is also incorrect.

however, of the opinion that, in the context In reply to a question on this point from the of an anti-dumping proceeding in which Court, the Council and the Commission Yugoslavia is not the exporting country but stated that in the definitive regulation is the reference country for determining the normal value is established on the basis of normal value of products originating in the the weighted average of domestic sales Soviet Union, it is no longer the official rate prices charged by Yugoslav producers which should be used but the abovemen- during the course of the 1985 reference tioned bank rate. year. According to both institutions, the difference between the rate of inflation in the EEC and the Yugoslav rate of inflation was reflected in that year in the devel- opment of the official ecu-dinar exchange I cannot agree with that argument. I do not rate. Whereas in January 1985 the see why an unofficial dinar rate unrepresen- relationship between the ecu and the dinar tative of commercial transactions should be was still 1 to 147, by December 1985 it had used in order to determine the dumping become 1 to 264. The increase in value of margin in respect of products originating in the ecu in relation to the dinar corresponds the Soviet Union, when this rate, on therefore to the Yugoslav inflation rate so account of its characteristics, cannot be used that the Council and the Commission did to establish the dumping margin of goods not deem it necessary specifically to take originating in Yugoslavia itself. Moreover, it account of Yugoslav inflation in establishing is well known that it is the official rate of the normal value. the rouble (and not the much lower buying rate used by Western banks) which is in fact used for commercial transactions with Soviet exporters or importers. Were one to follow Neotype's suggestion, in establishing I do not consider that the view formed by the dumping margin for products orig- the Council and the Commission can be inating in the Soviet Union a rate would regarded as erroneous. have to be applied which was considerably more advantageous for Soviet exporters than the rate in fact applied for the conversion of the proceeds of their sales. (c) The calculation on the basis of the constructed value

However it is not apparent from the arguments discussed above that to calculate the normal value on the basis of the domestic Yugoslav prices would be unrea- Enital points to differences in the physical sonable. That submission must therefore characteristics which are said to exist also be rejected. between the Yugoslav electric motors and the exported electric motors, although it does so in support of its view that the motors do not constitute a 'like product'. I have already stated (at paragraph 13) that B — Comparison of the normal value with this argument does not carry conviction. For the export price the sake of completeness I wish however to examine whether the differences relied on ought to have led to a price correction. According to Enital the component Applicable provisions materials used in the production of electric motors in the Soviet Union are of poorer quality than those used in Yugoslavia, 35the content in active components of motors is less than Yugoslav motors, no account was 24. Under the terms of Regulation N o taken of technical differences in electricity 2176/84 the export price and the normal input, axle height and noise and vibration value of the 'dumped' product must be on a levels. comparable basis as regards physical charac- teristics of the product, quantities and 32 — Sec paragraph III.2.(d)(i) of the Report for the Hearing in conditions and terms of sale (Article 2(9)). Joined Cases C-304/86 and C-185/87. If the export price and the normal value are 33 — Sec paragraph III.2.(b)(aa)(iii) of the Report for the Hearing in Joined Cases C-320/86 and C-188/87. not comparable as regards those factors, 34 — See paragraph 111.2(c) of the Report for the Hearing in due allowance is to be made in each case, Case C-157/87 on its merits, for differences affecting price 35 In Enital's observations it is stated that the components used in Yugoslavia are of poorer quality. I assume that this comparability. Where an interested party is an error and that in fact higher quality is meant. If not, that argument would not fit in with the intention of those claims such an allowance, it must prove that observations, which is to seek to reduce the dumping its claim is justified (Article 2(10)). margin determined by the Council.

(ii) difference in production costs having 26. Under the terms of Article 2(10) of regard to the higher wage costs borne Regulation No 2176/84 the parties who by Yugoslav manufacturers; wish a correction to be made on account of differences in physical characteristics must request the correction during the investi- (iii) differences in regard to technical gation procedure, and must prove that such characteristics, packaging and differences affect price comparability. The transport costs; differences indicated by Enital were already raised in the investigation preceding the adoption of the definitive regulation (see 12th recital, first paragraph, second indent, (iv) costs entailed in adjusting the of Regulation No 864/87). The products to the technical norms of the Commission thereupon conducted an inves- importing countries; tigation. It appeared therefrom that the use of materials of different origins and the degree of enhancement by the various producers of the active material content of (v) lower quality of the imported their motors did not result in differences in products; physical characteristics, nor in other differences affecting price comparability. With regard to differences in physical characteristics, however, an exception was (vi) poorer reputation of the imported made in respect of ball-bearings (see 12th products; recital, second and third paragraphs, of Regulation No 864/87).

(vii) less effective after-sales service;

In the course of that investigation did the Commission overlook any factors? That is (viii) costs incurred by the importer as a not alleged by Enital. Did the institutions, in result of the establishment of an the context of that investigation, commit an extensive stock of products. error of assessment? That is alleged by

27. The differences raised by Stanko cannot Having regard to the foregoing, the support the assertion that the institutions submission based on the differences between compared the export price and the normal products raised by Stanko cannot in my value on an incorrect basis. First of all, it view be accepted. should be observed that these differences have been indicated in very general terms and are not supported by evidence. Moreover, contrary to Stanko's assertions, the Council did in fact take account of differences which may be regarded as differences in conditions of sale, in particular as regards warranties, packing 28. As regards, finally, the differences and transport (see the 11th recital of Regu- raised by Electroimpex between Bulgarian lation No 864/87). As regards most of the motors and motors produced in the other differences pointed to by Stanko, it Community, it is sufficient to observe that should be observed that they do not fall such differences are not referred to in within any of the categories of factors Article 2(9) and (10) of Regulation No mentioned in Article 2(9) and (10) of Regu- 2176/84. Those provisions deal with the lation No 2176/84. In the abovementioned adjustments necessary in order to enable judgment in the Tecbnointorg case there to be a correct comparison between (paragraph 34) the Court stated that the export price and the normal value of the allowances may be made only on the basis dumped product. Differences as between the of the factors mentioned in paragraphs 9 dumped product and the product manu- and 10 of that article (differences in physical factured in the Community are not covered characteristics, quantities, conditions and by those provisions. Should such differences terms of sale, and import charges and exist Electroimpex could assert that the indirect taxes). However, differences such as imported product is not a 'like' product with production rationalization, wage costs, the product produced in the Community reputation of the imported goods and effi- and that it could not therefore cause injury ciency of the after-sales service are not to Community products. However, I have included amongst those factors. Finally, the already pointed out (at paragraph 13 above) Council observes in its defence that, in that the definitive regulation concerns stan- determining the amount of anti-dumping dardized electric motors which, irrespective duty, it took into consideration a very large of their origin, are 'like products' within the average profit margin for importers (40% of meaning of Article 2(12) of Regulation No the import price). In doing so, the Council 2176/84. It will become apparent from what enabled importers to absorb on a flat-rate I am going to set out below (at paragraphs basis the costs arising from the adaptation 31 to 36) that the Council was entitled to

Assessment

Summary of the applicants' submissions

(1) Is the cumulative calculation of injury 30. All the applicants dispute the manner in incorrect? which the Council made its determination of injury: 3 6(1) the Council ought not to have established injury on the basis of global

36 — See paragraph III.2.(e) of the Report for the Hearing in 31. Stanko and Electroimpex consider that Joined Cases C-304/86 and C-185/87, paragraph the Council acted incorrectly in determining III.2.(b)(ii) of the Report for the Hearing in Joined Cases C-305/86 and C-160/87, paragraph III.2.(b)(aa)(iv) of the injury on the basis of the consequences of Report for the Hearing in Joined Cases C-320/86 and global dumped imports from the relevant C-188/87 and paragraph III.2.(d) of the Report for the Hearing in Case C-157/87. State-trading countries.

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(3) Was a determination of injury possible in view of the development of sales and In those circumstances there was no reason production figures for electric motors in the for the Council to derogate from the Community? principle that injury should be assessed cumulatively.

33. All the applicants are of the opinion that it was not possible for the Council to (2) Ought the injury to have been make a determination of injury, having determined on the basis of actual sales in regard to the development of production the Community? and sales figures during the reference period (1982 to 1985). They point out that, on the one hand, EEC production of electric motors went up in absolute terms from 907 000 in 1982 to 990 000 in 1985 and 32. Neotype alleges that the Council that, on the other hand, the market share of imposed the definitive anti-dumping duty on the relevant State-trading countries fell the basis of erroneous figures as to the (according to paragraph 31 of the definitive

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OPINION OF MR VAN GERVEN —JOINED CASES C-305/86 AND C-160/87

regulation, from 23% in 1982 to 19.6% in provisional regulation, that the Council 1985). Neotype further points out that, made its determination of injury on the when the figures relating to a longer period basis of various factors which are all are analysed, imports of electric motors mentioned expressly in Article 4(2) of Regu- from State-trading countries fell even in lation No 2176/84, namely: absolute terms. In particular imports in 1985 represent only 75% of imports in the years 1979 to 1981. (i) An increase in absolute terms in the volume of dumped imports (Article 4(2)(a))

35. In their submission on injury the applicants highlighted two factors (the increase in Community production of (iii) The impact on the Community industry electric motors and the improvement in the (Article 4(2)(c)) market share of Community producers). From that they infer that there was no basis on which the Council could make a finding of injury. However, it appears from recitals 17 to 32 of the definitive regulation, which It appears from the documents before the reflect paragraphs 18 to 33 of the Court that EEC producers, in the face of competition from motors imported with a 37 — See Commission Regulation (EEC) No 724/82 of 30 significant dumping margin from State- March 1982 (OJ 1982 L 85, p. 9), Council Regulation (EEC) No 2075/82 of 28 July 1982 (OJ 1982 L 220, p. 36) and Commission Decision 84/189/EEC of 2 April 38 — See recital 25 of the provisional regulation. 1984 (OJ 1984 L 95, p. 28). 39 — See recitals 23 and 24 of the definitive regulation.

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'In this case the net unit price, free- 36. Stanko and Enital contend finally that at-Community-frontier, shall be the customs the Council has not proven that the injury value as determined in accordance with suffered by the Community is a result of Article 6 of Regulation (EEC) No 1224/80. imports originating in State-trading Failing this, in cases where, for an asso- countries. In their view, the operating losses ciated importer, it is not possible to of many Community producers are attrib- determine the customs value in accordance utable to intra-Community competition as a with the foregoing provisions, the net, free- result of pressure from Italian producers. at-frontier price shall correspond to the customs value as determined in accordance with Article 2(3) of the said regulation.'

That argument is put forward by the abovementioned parties in such summary Article 6(l)(a) of Regulation No 1224/80 form as to carry no conviction. Their provides as follows:

40 — See recital 26 of the definitive regulation. 41 — See paragraphs 29 and 31 of the definitive regulation.

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OPINION OF MR VAN GERVEN—JOINED CASES C-305/86 AND C-160/87

Assessment

Finally, Article 2(3) thereof provides as follows : 39. Neither Regulation No 2176/84 nor the GATT dumping provisions stipulate the form to be taken by anti-dumping measures. Article 13(8) provides that anti-dumping duties are to be collected by the Member '3. Where the customs value of imported States goods cannot be determined under Article 3, 4, 5, 6 or 7, it shall be determined using reasonable means consistent with the prin- ciples and general provisions of the agreement and of Article VII of the General 'in the form, at the rate and according to Agreement on Tariffs and Trade and on the the other criteria laid down when the duties basis of data available in the Community.' were imposed . . . '.

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The applicant already put forward that submission in the statement of claim which 40. In its second submission Neotype chal- it lodged in connection with an application lenges the secondary criterion laid down by for the suspension of the operation of the the Council in Article 1(4) of the definitive provisional regulation. As the President of regulation for cases where the customs value the Court held in his order of 16 January cannot be determined in accordance with 1987, 4 3that submission cannot succeed Article 6 of Regulation No 1224/80. That because the definitive regulation did not submission cannot by itself entail the impose any anti-dumping duties on parts. annulment of the whole provision. Article 1(1) of the definitive regulation Moreover, it is based on the purely hypo- imposes an anti-dumping duty on imports of thetical situation in which the customs auth- electric motors falling within subheading orities, when required to apply that secondary criterion in accordance with 42 — See paragraph IH.2.(d)(ii) of the Report for lhe Hearing Anicie 2(3) of Regulation No 1224/80, do in Joined Cases C-304/86 and C-185/87. 43 — Order in Case 304/86 R Enital v Council and Commission so in an arbitrary manner which leads to [1987] ECR 267.

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OPINION OF MR VAN GERVEN — J O I N E D CASES C-305/86 AND C-160/87

In the same judgment the Court however went on to hold that a special reason need F — The entry into force of the definitive not necessarily be set out in the preamble to regulation the regulation, in so far as the Court finds in the provisions which it enacts serious reasons for holding that any interval 42. Article 4 of the definitive regulation between the publication and the entry into provides that the regulation is to enter into force of the regulation might be prejudicial force on the day following its publication to the Community. in the Official Journal of the European

In the present the basic regulation. 46 case Regulation No 3019/86 of 30 September 1986 imposing a provisional anti- dumping duty was extended for a maximum period of two months by Council Regu- 43. In accordance with the first paragraph lation No 254/87 of 26 January 1987. 48In of Article 191 of the EEC Treaty, regu- the latter regulation it was expressly stated lations enter into force on the date specified that the extended measure was not to apply in them or, in the absence thereof, on the 'in any way beyond a period of two months 20th day following their publication.

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NEOTYPE TECHMASHEXPORT v COMMISSION AND COUNCIL

Council wished to avoid a hiatus in the 44. Enital's submission that the entry into protection of Community interests, it had to force of the definitive regulation on the day ensure that the definitive regulation entered following its publication in the Official into force at the latest on 1 April 1987, so Journal had the effect of imposing the that it had sound reasons to cause Regu- definitive anti-dumping duty with retro- lation No 864/87 of 23 March 1987 to active effect, is difficult to comprehend. In enter into force on the day following its fact it is only intelligible if the applicant can publication in the Official Journal. show that the regulation was published in an issue of the Official Journal which, although dated 27 March 1987, was not distributed until later and that the provisions of the regulation had nevertheless been applied with effect from 28 March 1987. 49 The applicant makes no such allegation. For Moreover the applicant cannot claim that its part the Council obtained confirmation the immediate application of the definitive from the Office for Official Publications of anti-dumping duty was not foreseeable, the European Communities that the issue since that duty entered into force at the end dated 27 March 1987 was in fact of the maximum period laid down in Regu- distributed on that same day. lation No 2176/84 for the validity of the provisional duty and the Commission constantly kept the applicant informed of In those circumstances that submission is the course of the procedure. also without foundation.

49 — See judgment in Case 88/87 Suiker Export [1977] ECR 709, paragraphs 13 to 19

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