C-188/88

The applicants challenge Commission Decisions 88/327, 88/328 and 88/329 which reject in part their requests for reim­ bursement of anti-dumping duties levied in 1985 and 1986 on imports of ball-bearings I think it is appropriate to mention that originating in Singapore. elementary principle because, as we shall see, it is precisely the application of that principle which, on anything beyond a superficial reading, is at issue in this case.

The action is based on two submissions. The provision just cited reflects a strictly Primarily, the applicants claim that the 'compensatory' approach, and its corollary above-mentioned decisions are unlawful in is the absolute obligation to refund any so far as they are based on a misinterpre­ amount paid in excess of the dumping margin. tation of the relevant provisions of the basic The provision in question in fact goes on to regulation (Regulation No 2176/84). In the say that 'therefore, if subsequent to the alternative, in the event of the Court's application of the anti-dumping duty it is considering that the Commission applied found that the duty so collected exceeds the those provisions correctly, the applicants actual dumping margin the amount in excess claim, pursuant to Article 184 of the Treaty, of the margin shall be reimbursed as quickly that the same provisions are unlawful. as possible'.

* Original language: Italian.

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In line with the GATT provisions, Anicie exporter and the importer precludes reliance 16(1) of Regulation No 2176/84 provides on the price charged in the transaction that: between them. It is therefore necessary to 'construct' the export price on the basis of the resale price to the first independent purchaser. Obviously, in order to determine that 'constructed' export price it is necessary 'where an importer can show that the duty to subtract from the resale price a number collected exceeds the actual dumping of elements (cost, various charges and margin ... the excess amount shall be reim­ profits) arising between import and resale. bursed'.

In fact, where the importer is not inde­ pendent from the exporter, the price at which the importer buys the goods is not Regulation No 2176/84 is more analytical regarded as a sufficiently reliable basis for in that respect. In particular, it provides that determination of the 'export price' for the the adjustments to be made to the resale purposes of a procedure to establish the price in calculating the export price are to possibility of dumping. The Commission has include the anti-dumping duties. Article emphasized that, in such cases, the exporter 2(8)(b), as well as stating that allowances to has the opportunity to sell the goods at an be made for 'all costs incurred between artificially inflated price, thus inducing the importation and resale, including all duties importer to sell at a loss on the Community and taxes, and for a reasonable profit market. The relationship between the margin', also provides that:

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'Such allowances shall include, in particular, As regards case (c), the Commission takes the following: the view that the principle that the anti­ dumping duties are to be deducted, as provided for in the provision mentioned earlier, is applicable · also in relation to refunds of duties paid. In its notice No 86/C266/02 of 15 October 1986 (here­ inafter referred to as 'the 1986 notice'), the (ii) customs duties, any anti-dumping duties Commission outlined its approach to this and other taxes payable in the importing matter in the following terms (paragraph country by reason of the importation or II (2) (c]: sale of the goods'.

paid basis, a reimbursement will be granted, by the applicants. Provisional duties were if the resale price has been increased by an imposed by Commission Regulation No amount equivalent to the margin of 744/84 of 19 March 1984 and definitive dumping and the amount of the duty paid. duties were imposed by Council Regulation In this case the applicant is not prevented No 2089/84 of 19 July 1984. The duties from passing on to the buyer the amounts were paid as from March 1984. eventually reimbursed.

In the months immediately after that date, It is clear that the 'adjustment' referred to is the applicants submitted applications for to be understood as a deduction of the refunds. The applications concerning amount concerned from the resale price. imports in 1984 were abandoned. Those relating to imports in 1985 and 1986, on the other hand, were pursued and in response thereto the Commission adopted the three contested decisions.

The facts

It has already been stated that the application is based on two separate submissions. As regards the second ground, it is true that no express reference is made in the application to any objection of illegality under Article 184, in so far as the applicants In the first place, the applicants maintain merely claim that the Court should 'annul' that the contested decisions are unlawful the contested decisions (and, of course, because they are based on a misinterpre­ order the Commission to pay the costs). tation of the basic regulation.

omission does not seem to me to be so EEC's international trading partners, and serious as to render the objection inad­ the illegality of the Commission's 'trade missible— unless a formalistic approach policy' .In its rejoinder, the Commission were adopted for which there is no states again that the applicants have failed reasonable justification. The petitum to demonstrate the legal basis for those contained in the conclusions set out in the challenges and that therefore 'these grounds application (annulment of the contested for challenge too must be disregarded by decisions) is fully consistent both with the the Court'. main claim made by the applicants and with the alternative claim for an incidental finding of illegality. Indeed, whether the Court upholds the main claim or, considering the objection of illegality to be well founded, upholds the alternative claim, I consider, however, that the submissions the result will be the annulment of the which the Commission considers inad­ decisions adopted by the Commission on missible fall to be classified not as inde­ the basis of Article 16 and pursuant to pendent submissions rather as arguments put Article 2(8)(b) of the basic regulation, a forward in support of other complaints result which precisely reflects the petitum set made in the application, in particular the out in the application. allegation of misinterpretation of the basic regulation. Thus, the delay in processing refund requests is referred to as 'exacer­ bating' the 'substantively unsatisfactory nature' of the system, in so far as it accen­ As regards the third allegation of inadmissi­ tuates the lack of proportionality; the incon­ bility, it seems to me to be manifestly sistency of the Community's practice by unfounded since it is clear that the comparison with that of its international applicants are merely asking the Court to trading partners is an element to be taken carry out a purely incidental examination of into account in interpreting the Community the unlawfulness of the above-mentioned legislation and confirms that 'there is provision of the basic regulation, a request nothing inherently necessary or inevitable which falls squarely within the scope of about the policy pursued by the Article 184 of the Treaty. Commission', which is based on a misinter­ pretation of the basic rules; the fact that the Commission system reflects an illegal trade policy, in so far as it appears 'to deter voluntary increases in price', is a further Other issues of admissibility argument to show that the interpretation relied by the Commission is wholly irra­ tional since it leads to results which contradict the very objectives of the trade protection measures. The Commission also considers that certain grounds of the application are inadmissible in so far as they fall outside the scope of Article 173. The grounds in question are those relating to infringement of obligations under GATT, the protracted nature of the The observations regarding infringement of refund procedure, the inconsistency between the GATT rules cannot be so easily cate­ the Commission's practice and that of the gorized: it is not at all clear whether the

However, I must immediately draw the In view of the foregoing conclusions Court's attention to the fact that the debate concerning the nature of the submissions in these proceedings appears to have shifted made, I consider that the objections of inad­ the focus of the dispute towards a problem missibility raised by the Commission should which extends beyond the rule concerning be dismissed. the determination of the constructed export price and the dumping margin. Having regard to the facts of the case and in particular the details that emerged at the hearing, it seems to me that the true question raised is whether an associated The substance importer may take on himself the financial burden of paying the duty, until such time as it is reimbursed to him, or whether, on the other hand, that burden must in all cases be passed on to the purchaser by the asso­ The issue is whether, or not, in a procedure ciated importer. If the burden of the duty for the reimbursement of anti-dumping must fall upon the independent purchaser, duties, it is lawful for the duties paid by an that appears to represent a separate, associated importer to be regarded as a cost additional condition for the availability of

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the refund. This is the question which will price is equal to the normal value: the be considered in the second part of the dumping is therefore eliminated. present opinion (II).

Finally, I shall briefly consider the remaining criticisms made against the However, that result is arrived at only if the contested decisions (III). duties paid are not treated as a cost incurred between import and resale and therefore are not deducted in calculating the constructed export price. According to the applicants, therefore, Article 2(8)(b) of Regulation No 2176/84 should be regarded as narrower in I — Interpretation of the basic regulation scope than its wording implies. In other words it should be acknowledged that provision is made for the duties paid to be deducted, in calculating the constructed export price, only in review procedures and (a) The views of the parties not in refund procedures. 1 Any other solution would produce the illogical, and

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indeed unlawful, result whereby a wholly If the constructed export price is calculated artificial dumping margin was determined, by also deducting from the resale price the giving rise to an absolutely disproportionate duties paid, it necessarily follows that the and discriminatory financial loss. associated importer, who was required to pay the duties, must, in order to bring the dumping to an end and obtain the refund, increase the resale prices by twice the dumping margin, rather than merely by the same amount as the dumping margin.

1 — In the preamble to the decision, the Commission states: (The Commission) is of the opinion that the wording of Article 2(8)(b) is clear: all duties, including anti-dumping duties, have to be deducted from the resale price. The Commission would therefore, by granting the applicants' request, infringe the express requirements or Article 2(8)(b) and of part 11(b) and (c) of the notice. Regulation (EEC) No 2176/84 establishes different rules for the determination of the export price in different situations depending on whether the importer is related to the If, on the other hand, the Commission's exporter or not. This cannot be considered discriminatory. view is followed, then an increase of twice

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the dumping margin — a double jump — is entirely alternative to each other. Where necessary to bring the dumping to an end there is a given increase in the resale price and create entitlement to reimbursement. 3It to the first independent purchaser, with is also clear that the two approaches are every other important factor remaining unchanged, either there is or there is not dumping.

Then suppose that, following the introduction of an anti should be noted in the first place that dumping duty of 20, the importer concerned increases the Article 2(8)(b) of the basic regulation, in resale price to the first independent purchaser by an amount exactly equivalent to the dumping margin of 20: providing that the anti-dumping duties paid the resale price is raised from 120 to 140. Nevertheless, if, in such circumstances, the duty paid is by the importer are to be treated in the considered as a cost incurred between importation and same way as a cost and are therefore to be resale, it will have to be concluded that the imponer, who increased the resale price in an amount equal to the deducted in calculating the constructed dumping margin, has not brought the dumping to an end. export price, does not limit the application If the duty paid is deducted from the resale price, in the same way as a cost, the result will be that, notwithstanding of that calculation rule to a particular case. the increase in the resale price, the difference between the normal value and the export price has remained wholly The letter of the provision appears therefore unchanged. to support the Commission's interpretation If from the new resale price of 140 there is deducted not only an amount of 40, equivalent to the costs and profits, whereby the duties are to be deducted from but also the additional amount of 20, corresponding to the the resale price regardless of the procedure duty paid, we arrive at a constructed expon price of 80 (140 — 40 — 20) and therefore there is still a dumping (review procedure or refund procedure) margin of 20 (100 — 80).

The imponer must increase the resale price by twice tnc dumping margin, not merely by an amount equal to ¡t. In fact, if the importer raises the resale price from 120 to 160, thus incorporating an increase equal to twice the dumping margin of 20, the constructed expon price, after deduction of the anti-dumping duty of 20, will be equal to the normal value of 100 (constructed expon price •= 160 — 40 — 20). Conversely, if it is considered that the duties paid do not constitute a cost to be deducted in order to determine the constructed export price the results arrived at are entirely different, It will be sufficient for the associated importer to increase the resale price by only the same amount as the dumping margin for it to be concluded that the dumping It should be observed however that, whilst has been completely eliminated and that consequently the in the case of the review procedure duties paid must be refunded.

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applicants, 4the application of that rule in duties, corresponds to the normal value: in the refund procedure gives rìse in certain other words, there will be a dumping circumstances to illogical consequences margin until a twofold increase in the resale which are incompatible both with the price has been made. essential principles of the anti-dumping rules and with certain fundamental principles of Community law.

However, such a twofold increase appears wholly unjustified.

In those circumstances, reason for this will be better illustrated by an example. Let us consider once again the situation where: application of the duty, as a trade normal value 100 protection measure, is intended essentially resale price 120 costs, profits, 40 to restore fair conditions of competition as constructed export price 80 (120-40) regards export prices. dumping margin 20 (100-80) Let us suppose that an anti-dumping duty of 20 is applied. Let us then suppose that, not withstanding collection of the duty, the resale price of the product remains unchanged, at 120. In that case, it is seen that the duty imposed has not had any effect on the prices, which must indicate that the dumping has not only not been elim inated, following application of the duty, but instead has

outset. In order to calculate the constructed export price for the purposes of that re-examination, account must be taken of the fact that the associated importer is already bearing an anti-dumping duty, whilst continuing to apply the same resale price. From the accounting point of view, that can be done by deducting the said duty from the resale price, together with the other costs and profits. Thus, in the example given above, the new constructed export price will become 60 (and no longer 80), thus being equal to the Whilst that is true, it is nevertheless difference between the resale price (which remained 120), on the one hand, and, on the other, the anti-dumping duty consistent with the logic of those rules to already borne (20) and the profits and other costs (40). conclude that the dumping has been elim Where the constructed export price is reduced from 80 to 60, the dumping margin will be increased from 20 to 40: inated when the sale price in the the Community will be able to increase the anti-dumping duty, raising it from 20 to 40, unless a lower duty is Community has been increased to an extent sufficient to eliminate the harm caused to the Community which corresponds to the dumping margin

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the product in question is no longer sold at equal to the dumping margin found to exist, an artificially low price and there is no and no more. further need for measures to protect trade.

In the case of an associated importer, the (c) The Commission's practice price to be taken into consideration is the resale price to the first independent purchaser. It is at that stage that the imported product encounters competition from Community products. It is therefore It is important to note that this conclusion is on the basis of that price that it is necessary confirmed by the practice of the Commission to determine whether the product is being itself, as described in the 1986 notice and dumped, and also whether any dumping has the documents produced in the proceedings, been eliminated. provided that the analysis is taken beyond the criterion laid down in the notice and the actual functioning of the refund system is taken into consideration. Where at a particular resale price a dumping margin is found to exist, and consequently a duty is imposed, the objective which may be legitimately pursued by that trade- protection measure is that of obtaining a Let us start with the pleadings. In paragraph price increase which will bring that price to IV.3 of the defence — that is to say in the the level at which no dumping would ever final summary of its arguments — the have existed. Commission makes it clear that an asso­ ciated importer is required to increase the resale price by twice the dumping margin only temporarily: That increase (and likewise the trade- protection measure) may not exceed the dumping margin. If a greater increase were required, it would no longer be a question of merely restoring a proper price level but 'the associated importer is required tempo­ of pushing the price of the product up to a rarily to raise his price by twice the level at which it was unfairly placed at a dumping margin in order to obtain a disadvantage by comparison with the refund, which he may then pass on to his competing Community product. In other purchaser'. words, there would be a shift from defence of trade to protectionism.

the importer in question increases the resale Those examples show that in both cases in price by an amount equal to the dumping which the entitlement to reimbursement is margin; recognized by the Commission, that is say:

both the case of an associated importer who sells 'duty unpaid' to the first independent the importer sells 'duty unpaid', which purchaser; means that it is the purchaser who pays the duty and applies for an obtains the refund;

and the case of the associated importer who sells 'duty paid' to the first independent purchaser; in practice, the purchaser bears a double burden only temporarily, represented by payment of the increased price and payment of the duty; and in fact that duty is the independent purchaser's net balance, that subsequently repaid: the actual price paid by is say after payment of the refund and the purchaser incorporates an increase of an possible passing on of the duty, is one debit amount which is only equal to the dumping unit. That unit corresponds precisely to the margin.

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Similarly, in the second case: resale prices to the independent purchaser by an amount equal to the dumping margin, and no more.

The practice of the Commission itself is to consider that, in order to bring the dumping Undertakings seeking a refund of the duties to an end, the associated importer, who has paid to the Community must show that, for paid the duties involved, must increase the a given reference period, the duty levied

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exceeded the actual dumping margin. Those of present dumping margins, then the undertakings seek a subsequent adjustment deposits would work to open a margin of the duty levied at the time of where none otherwise exists'; importation, to reflect the real situation the practice of the Department of obtaining when the product was imported. Commerce is to be regarded as well estab­ That procedure does not seem to me to lished, as appears from the Notice of Final differ essentially from that followed, under Results of Anti-dumping Duty, Adminis­ the United States system, in determining the trative Review (July 1, 1988), Color Tele­ definitive duty. In both cases, a determi­ vision Receivers from Korea, 53 FR 24975, nation is made ex post facto for a given where it is stated that 'adding these reference period of the export price and the estimated duties to the dumping margins normal value, and then any dumping margin would artificially inflate them'. arrived at from those figures is compared with the duty levied on importation. It is thus clear that, as regards the export price, where associated importers are involved, in both cases a 'constructed' price must be determined, in accordance with the GATT anti-dumping code. It is also apparent — from the same research note — that in view of the lack of clarity of the relevant provision of the GATT anti­ dumping code, the question was raised in the Uruguay Round negotiations. It is worth noting that from the views so far That having been said, I shall merely point expressed, it emerges that: out that, as appears from a research note prepared by the Research and Documen­ tation Department of the Court:

there are differing views as to the need to under Article 16(1) of the basic regulation, a deduct the anti-dumping duties in cases right to reimbursement of the duties paid. where, by virtue of the first calculation, made without deduction of the anti­ dumping duties, it appears that the constructed export price is lower than the normal value; in such a case, however, it is clear that there is no entitlement to a refund In the situation just described, therefore, the in any event, but instead it is necessary to duties paid must not be regarded (and are determine whether or not account should be not in fact so regarded by the Commission) taken of the anti-dumping duties paid in as a cost to be deducted from the resale establishing, in a review procedure, whether price for calculation of the constructed the dumping margin has increased (see export price. If such a deduction were above, footnote 4). made, the result would be determination of a dumping margin at a resale price level at which, in fact, no dumping margin exists.

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to say equal once again to the dumping define the scope of the provisions so as to margin (a perfectly lawful thing to do), it is render them consistent with the system of undisputed that the dumping is regarded as which they form part and to ensure that eliminated. In practice, all things being they do not operate (even if only partially) equal, at the same resale price the product unlawfully. The principle that legislation sold by the associated importer is still being should be interpreted systematically and the dumped whereas the product sold by the principle ut res magis vakat quam pereat call independent importer is no longer dumped. for an approach of that kind, whereby the letter of the provisions is merely a point of departure and not of arrival.

In practice, the result is the same: partial II — The conditions for entitlement to a illegality or a restrictive interpretation of the refund provision, so that in any event the deduction is not applicable in the present case and, therefore, the contested decisions are unlawful. To summarize, the foregoing analysis leads to the conclusion that the rule that duties should be deducted is not applicable where a decision is to be given on an application Personally, of the two options, I prefer the for a refund made by an associated importer second. I consider that the Court should who has increased the resale prices by an

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to avoid differences of treatment as between independent importers and associated importers. On the other hand, in the circumstances outlined by the applicants, it is the importer who bears, until reimbursement, the burden of payment of the duty. It must first be stated that those arguments are put forward to justify a practice which is 5 — That is obvious where it is the buyer who pays the duty subsequently refunded to him. But the same situation not in conformity with consistent arises where the duty is paid by the importer. In that case, according to the Commission, the resale price (tempo­ application of the rule on deduction of rarily) incorporates a twofold increase. Within that duties contained in Article 2(8)(b) of the twofold increase, one unit corresponds to the actual increase in the sale price whereas the second reflects the basic regulation. The circumstances in amount of the duty, the burden of which is thus placed on which, according to the 1986 notice, the the buyer. The latter, therefore, will subsequently obtain the reimbursement, as a result of the transfer to him by the Commission grants refunds of duties are associated importer.

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That is the sole difference. And it is that reached — the following observations are sole difference — let it be repeated — which appropriate. appears to be the only real reason for which the requested refund has not been granted to the applicants.

But even if those elements are disre­ garded— which, frankly, I think would be If that is the real effect of the system difficult — I must point out in any event operated by the Commission — and on the that the reasons relied on by the basis of the information provided I do not Commission to introduce that additional think that any other conclusion can be condition do not appear convincing or such

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But apart from that a refund of that duty there would be a one difference, the risk of disguised dumping or other fraudulent collusion serious risk that the importer would transfer remains exactly the same. downstream, to his buyer, the amount of the refunded duty, thus evading the trade- protection measure. On the other hand — the Commission argues — if the importer is required temporarily to increase the resale price by twice the dumping margin, then, even if the refunded duty is transferred to the buyer, the definitive price charged in the transaction will meet the requirements of trade protection. As regards the need to avoid discrimination between associated importers and inde pendent importers, the Commission contended in its rejoinder that even buyers who purchase from an independent importer are in a way temporarily subjected to a This reasoning clearly confirms once twofold increase in the purchase price.

The the anti-dumping measures by making Commission concludes that 'the buyer from concealed transfers to his customers (the the independent importer, or from the first Commission gives the example of transfers independent buyer who has paid the duty, to current accounts in foreign banks or will almost certainly pay the original price discounts purporting to relate to other plus twice the dumping margin . . . unless supplies); and that there is no realistic possi and until the dumping duty is reimbursed to bility of controlling such conduct. If that importer or first buyer, and that party that — as it seems to be — is the real reason chooses to reimburse his buyer' (rejoinder, for which the twofold price increase is paragraph III. A.3.6).

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margin in order to obtain a refund does (independent or otherwise) passes on only nothing more than ensure as far as possible the increase made to the purchase price that the price increase to all customers (which is also the increase needed to bring within the Community is the same until the the dumping to an end), his resale price will dumping duty is reimbursed, when the reim­ then be at the level at which the goods are bursement may be passed back to them'. offered in the Community; on the other hand, if he passes on a larger amount, even if only temporarily, it is probable that the product will be offered at a higher price than that of competing Community products, with the risk that he will be forced 6 out of the market. However, the Commission's reasoning is open to a number of objections.

If applied to that hypothetical case, the However, there is reason to doubt the well- system adopted by the Commission with foundedness of that 'supposition'. If the respect to associated importers seems to me independent importer is in competition with to involve wholly unjustified discrimination. other suppliers in the Community, it is If the buyer does not accept the twofold probable that he will endeavour to keep his increase (even if it is only temporary) in the selling prices at the lowest possible level. In price, then the associated importer who, those circumstances, therefore, the inde­ unlike the independent importer, effects a pendent importer (no differently from an associated importer) will pass on to his 6 — Naturally, the situation would be different if the importer was in a strong market position, in that he was able to resale prices only the increase previously determine the prices without excessive regard to the conduct of competitors. But it is clear that in such a made to the purchase price, but not the situation — which has not been invoked in the present charge relating to the duty paid, which is a case — an independent importer and an associated importer would act according to the same logic, and both temporary burden in so far as it will would seek to pass on to the buyer the temporary burden subsequently be refunded. Moreover, it of payment of the duty (quite apart from the fact that where the trader was in a strong market position he would should be borne in mind that if the importer probably have less interest in engaging in dumping).

single increase, loses the right to reimbur­ consider the prospect of reimbursement as sement. In those circumstances, the practical insufficiently certain for him to bear the effect is that the associated importer has his temporary burden of paying the duty. Thus, income curtailed by the amount of the duty, it is probable that the buyer in the even though it is undisputed that, at the Community will have less information than price charged by him, there is no longer any the importer concerning the normal value of dumping; at the same time, the Community the product; moreover, the importer is withholds from him sums to which it is not aware of the costs borne by him between entitled and indeed is specifically required to importation and resale, whereas the buyer repay to him under Article16(1) of the basic can have only an approximate idea of those regulation. details. Admittedly, if the buyer agrees to pay the duty (temporarily), the issue does not arise. But if — as is quite possible, — the buyer does not agree, why must the associated importer who has paid the duty lose the right to reimbursement, whereas the independent importer, in the same circum­ stances, does not lose that right? There is a last consideration. I find it difficult to understand the logic of a system which compels an associated importer to endeavour to make the buyer bear the temporary burden (at least, until a refund is granted) of payment of the duty. It is quite usual that it should be the importer, asso­ ciated or otherwise, who pays the duties and, if appropriate, submits applications for reimbursement. On the other hand, successive buyers in the Community, who In that regard, the Commission has placed operate at a lower commercial level, great emphasis on the need to be suspicious normally have no interest in becoming of associated importers who have involved in procedures connected with the participated in an unfair commercial import of goods into the Community. There practice. That suspicion, if founded, makes is no apparent reason why they should agree it necessary to make absolutely certain that to bear the burden of an anti-dumping duty the price increases are of such a kind as to and obtain reimbursement thereof bring the dumping to an end. But once it is subsequently. Moreover, I do not think it is agreed that the prices are increased to the unreasonable to conclude that the buyer in requisite extent, I do not see how the many cases has insufficiently detailed, and traders concerned can be denied the right to in any event very indirect, knowledge of the reimbursement simply because they were conditions for obtaining reimbursement. unable or even unwilling to pass on to their trade customers the temporary burden of paying the anti-dumping duties; in other words, I do not see how the right to reim­ bursement can be made subject to additional, more onerous conditions not provided for in Article 16(1) of the basic regulation, simply because that right is Therefore, even if the duration of the exercised by undertakings which have opted procedure is disregarded, the possibility for vertical integration for their trade cannot be ruled out that the purchaser will imports into the Community.

As far as the inadequacy of the statements of the reasons on which the decisions are based, I have said that that claim may be As regards breach of the principle of the upheld, in so far as the decisions do not protection of legitimate expectations, the state that the request for a refund was Commission, without being challenged by (partially) rejected, not because the the applicants, stated in its defence that the applicants increased the resale prices to an applicants were informed by letter of insufficient extent to bring the dumping to 6 March 1985 that the Commission had an end, but only because, in fact, although decided that the rule that anti-dumping making the requisite increase, they did not duties should be deducted as a cost was comply with the separate obligation of applicable to the refund procedure. It is not passing on to the buyer the temporary therefore true that, at least until publication burden of payment of the anti-dumping of the 1986 notice, the applicants had no duty. Other matters raised by the applicants way of knowing what the result of their in connection with the statements of applications for refunds would be.

Conclusion

On the basis of the foregoing observations, I propose that the Court uphold the application and order the Commission to pay the costs.

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