C-189/88

OPINION OF MR TESAURO —CASE C-189/8 8

OPINION OF MR ADVOCATE GENERAL TESAURO :; delivered on 8 February 1990 '

Mr President, Article VI of the General Agreement on Members of the Court, Tariffs and Trade (GATT) and to the Agreement on Implementation of that 4 article (hereinafter referred to as 'the 1979 Anti-Dumping Code')· 1. This reference for a preliminary ruling under Article 177 of the EEC Treaty from the tribunale di Genova (District Court, Genoa) in the case pending before that court between Cartorobica SpA and the Italian Ministry of Finance is concerned 3. The facts may be summarized very with the validity and the interpretation of briefly. In September 1985 and April 1986 Council Regulation (EEC) No 551/83 of Cartorobica imported kraftliner paper and 8 March 1983 ' imposing a definitive anti­ board from the United States without dumping duty on kraftliner paper and board paying the anti-dumping duty imposed by originating in the United States of America Regulation No 551/83. On 19 June 1987 and accepting undertakings given in the Italian Finance Ministry served on the connection with the review of the anti­ company a demand for the payment of a dumping proceeding on kraftliner paper and total of LIT 13 481 060. However, Carto­ board originating in Austria, Canada, robica challenged the demand for payment Finland, Portugal, the Soviet Union and on the ground in particular that the Sweden. Community regulation imposing the duty was unlawful.

2. Regulation No 551/83 is based on Council Regulation (EEC) No 3017/79 of 20 December 1979 on protection against The tribunale di Genova, before which the dumped or subsidized imports from action was brought, stayed the proceedings countries not members of the European 2 and referred three questions to the Court Economic Community, as amended by 3 for a preliminary ruling. Regulation No 1580/82.

at-frontier Community price, duty-unpaid, 9. It is plain from the reference made by the per tonne net to the first purchaser in the national court to some of the provisions of customs territory of the Community. the basic regulation and from Cartorobica's written observations that the question referred is in fact based on a misinter­ pretation of that regulation. 5. There are in fact two distinct aspects to that question, as, moreover, emerges even more clearly from Cartorobica's written It is claimed that Regulation No 3017/79, observations. and in particular Article 2(9) and (13), conferred on the Community institutions alone the power to determine both the normal value of the goods in question in the 6. On the one hand, it is argued that Article exporting country and the export price of 2(1) of Regulation No 551/83 is invalid the goods to the Community and that the because the basic regulation and the 1979 task of the national customs authorities Anti-Dumping Code do not permit the must be confined to converting the duty Community institutions to adopt such a expressed in ecus into the national currency. variable duty — based on the difference between a specific basic value fixed beforehand and the price actually paid for It is argued that that provision is intended the imported goods — which is especially both to avoid discrimination caused by affected by currency fluctuations. external factors and to prevent distortions due to the exercise by the national auth­ orities of a discretionary power which is not sufficiently circumscribed by the 7. On the other hand, it is claimed that the Community legislation. provision is unlawful because, as a result, the Community institutions delegated the task of determining the amount of the duty Because such a 'normal' method of calcu­ to the national customs authorities, without lation is already laid down, it follows that having previously established sufficiently the use of alternative methods not explicitly precisely the reference criteria for calcu­ provided for is precluded. lating the price of the goods. Instead they merely referred to the vague and imprecise concept of the free-at-frontier price, thus creating a serious risk that the duty will not 10. However, closer consideration of the be applied uniformly throughout the basic regulation reveals that it contains a Community. somewhat different scheme.

16. As a result, I agree with the view 12. That is the applicable legislation; it recently expressed by Mr Advocate General should be pointed out that in practice the Van Gerven — with regard precisely to the Community institutions employ essentially lawfulness of using a variable duty — to the three types of anti-dumping duty, namely effect that, having regard to the applicable specific duties, ad valorem duties and legislation, the institutions may adopt the variable duties, each of which has anti-dumping measures in the form which advantages and disadvantages. appears to them to be most suitable for removing the injury caused by the 6 dumping. Consequently, I consider that the first of the grounds for the alleged unlaw­ 13. Specific duties, consisting of a fixed fulness of Article 2(1) of Regulation No amount of duty per unit of goods imported, 551/88 is unfounded. and ad valorem duties, which are fixed as a percentage of the price of the goods at the Community frontier, have the advantage of 17. The second ground for maintaining that being easier to apply and more difficult to Article 2(1) of Regulation No 551/83 is evade. However, they lack flexibility. In invalid is unfounded, as I have already order to take account of any variations in stated, on the fact that that provision refers the price of the goods in question the regu­ lation imposing the duty must be amended 5 — See Council Regulation (EEC) No 864/87 (OJ 1987, L 83, p. 1), Council Regulation (EEC) No 338/86 (OJ using the review procedure. 1986, L 40, p. 25), Council Regulation (EEC) No 2370/83 (OJ 1983, L 228, p. 28) and Commission Regu­ lation (EEC) No 3542/82 (OJ 1982, L 371, p. 25). 6 — See the Opinion delivered at the hearing of 8 November 1989 in Joined Cases 304/86 and 185/87, 305/86 and 160/87, 320/86 and 188/87 and in Case 157/87, respectively, [1990] ECR 1-2976, paragraph 39. It should 14. That disadvantage can be overcome by be pointed out that even if the regulation at issue in the using variable duties the amount of which abovementioned cases was based on the subsequent basic regulation, Regulation No 2176/84, the legal background corresponds to the difference between the was, for present purposes, entirely analogous.

20. It should also be emphasized that the Community institutions normally refer to that concept even when they impose ad 18. It should be pointed out first of all in valorem duties which are determined as a that connection that the net free-at-frontier percentage of the free-at-frontier price. Community price is in fact a sufficiently clear concept for international traders. It is used quite simply to refer to the price of the goods on leaving the factory plus all the 21. Moreover, as against considerable liti­ costs incurred before the Community gation concerning customs value, no frontier is crossed. question relating to the application of the concept of the net free-at-frontier price in the field of anti-dumping has yet been referred to the Court of Justice, which would seem to provide further support for 19. Moreover, the Commission has made it the Commission's argument that the net clear that it has gradually stopped referring free-at-frontier price is easier to apply. to customs value in anti-dumping regu­ lations and tends to use the different concept of the net free-at-frontier price, for two main reasons: firstly, it is easier to apply because reference to the net free- Moreover, it is evident that if a question of at-frontier price obviates the necessity for that kind should arise before a court of a customs authorities to have to perform Member State, that court can in any event calculations which take account of complex apply to the Court of Justice for clarifi­ commercial variables, as is required under cation, thereby ensuring that the legislation the customs legislation on customs value; in question is applied uniformly. secondly, the need to ensure that reference is made to uniform values, given that anti­ dumping duties are usually calculated by expressing the dumping margin and the 22. In conclusion, it should therefore be injury threshold as percentages of the net stated that, in the absence of any provision free-at-frontier price. to the contrary in Regulation No 3017/79, there is nothing to stop the Community institutions making reference to the concept of the net free-at-frontier price for the purposes of imposing anti-dumping duties. It should also be pointed out that reference to uniform values is more likely to ensure that the amount of the duties does not

In the present case the dollar was used because the production costs of US producers were expressed in that currency Leaving aside the question of the accuracy and the export prices themselves were of Cartorobica's calculations of the damage expressed, in many cases, in US dollars. suffered by Italian importers, the reply to that argument is simply that even if the Council had used the ecu, that would not necessarily have afforded traders protection against distortions due to external factors 26. Nor is it of any consequence that in the such as, for example, exchange-rate fluctu­ proposal of 28 July 1987 for a regulation ations. That is particularly so given that in to replace Regulation No 551/83 the point of fact the distortion complained of is due, not to fluctuations in the dollar, but to 8 — See Council Regulation (EEC) No 191/80 (OJ 1980, the change in the relative exchange rates of L 23, p. 19) and Council Regulation (EEC) No 407/80 (OJ 1980, L 48, p. 1). the currencies of Member States.

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CARTOROBICA

28. At this point it seems to me to be without good reason, an application for a necessary to make — albeit very briefly — a review of Regulation No 551/83, is of no number of more general observations on the relevance in this case. The applicants, of influence which a change in circumstances which Cartorobica was not one, should may have on trade protection measures. possibly have challenged the Commission's refusal. Moreover, a refusal to review a measure, albeit possibly unjustified, does not necessarily cause the measure itself to be invalid.

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OPINION OF MR TESAURO —CASE C-I 89/88

31. In the light of the foregoing considerations, I therefore suggest that the Court should rule that consideration of the questions raised has disclosed no factor of such a kind as to affect the validity of Council Regulation (EEC) No 551/83 and that that regulation must be interpreted as meaning that the minimum prices laid down in US dollars in Article 2 must be converted into the currency of the importing Member State at the exchange rate applicable at the time the goods enter into free circulation.

I -1290