C-323/88

When a question in such general terms is referred to it, the Court examines whether the grounds of the decision making the In the Opinion which I have delivered today reference can supply any clarification. in several direct actions2 I have already Where those grounds disclose the stated my view on the validity of Regulation submissions relied on by the applicant in the No 864/87. As regards the essential part of main proceedings before the national court, my reasoning in the present case, I may the Court endeavours to give a reply to the therefore refer to my Opinion in those question referred for a preliminary ruling cases, as well as to the Report for the after examining those submissions.4 In the Hearing. From a procedural point of view, present case the decision making the the present case does raise two particular reference indicates the applicant's problems. These I shall examine before submissions only in very general terms: dealing with the substance of the case. 'infringement of the principle of legal certainty; infringement of Regulation (EEC) * Original language: French. No 2176/84 and of essential procedural 1 — Council Regulation (EEC) No 864/87 of 23 March 1987 imposing a definitive anti-dumping duty on importi of requirements, particularly the lack of a standardized multi-phase electric motors having an output statement of reasons; infringement of Regu- 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 Soviet Union, 3 — The basic regulation referred to is Council Regulation and definitively collecting the amounts secured as (EEC) No 2176/84 of 23 July 1984 on protection against provisional duties (OJ 1987 L 83, p. 1). dumped or subsidized imports from countries not 2 — Opinions in Joined Cases C-304/86 and C-185/87 Enitalv members of the European Economic Community (OJ Commission and Council, [1990) ECR I-2939, in Joined 1985 L 201, p. 1). That regulation has in the mean time Cases C-305/86 and C-160/87 Neotype Techmashexport v been replaced by Council Regulation (EEC) No 2423/88 Commission and Council, [1990] ECR 1-2945, in Joined of 11 July 1988 (OJ 1988 L 209, p. 1). Cases C-320/86 and C-188/87 Slanko Francei Commission 4 — See inter alia the judgment in Case 246/87 Continentale and Council [1990] ECR 1-3013 and in Case C-157/87 Produkten-Gesellschafi Erhardt-Renken v Hauptzollamt Electroimpex and Others v Council[1990] ECR I-3021. München-West [1989] ECR 1151.

lation No 2176/84 and of fundamental authorities claimed anti-dumping duties principles, especially the rights of the from it amounting to more than defence; and infringement of the general FF 400 000. Sermes SA disputed the principles of law, in particular those of amount claimed and brought proceedings equality, objectivity, administrative fairness against the customs authorities. At the and the proper administration of justice, hearing, counsel for Sermes did not conceal misuse of powers and infringement of the the fact that the company had done so in principles of equal treatment and order to induce the national court to refer non-discrimination.' I should point out that to the Court of Justice for a preliminary these submissions do not specify the ruling a question which would afford it the provisions of Regulation No 2176/84 which opportunity of submitting to the Court its are said to have been infringed. observations challenging the validity of Regulation No 864/87, in a situation where a direct action for annulment had been precluded. 3.

Do paragraph of Article 173 of the Treaty. other submissions need to be taken into account? In particular, do the submissions made by the appellant in the main proceedings in its observations presented to the Court which differ from those made in Following the entry into force of the the context of the direct actions fall to be definitive anti-dumping duty, Sermes examined? It could be argued that parties continued to export into France electric are not entitled to request the Court to rule motors originating in the German Demo- on submissions of invalidity other than those

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OPINION OF MR VAN GERVEN —CASE C-323/88

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SERMES

the absence of sufficient evidence of On the basis of the foregoing the changed circumstances, contrary to Article submission made by Sermes must be 14 of Regulation No 2176/84 and the rejected. In the first place, it should principle of legal certainty. be observed that Article 14 of Regulation No 2176/84 would have allowed the Commission on its own initiative to review the decisions to accept the undertakings given, without having to produce evidence of changed circumstances. Secondly, the information available to the Court in no way shows, in my view, that the Community institutions misdirected themselves in the 8. In order to understand this argument assessment of the evidence put forward by properly it is necessary to recall that in 1982 Gimelec in order to show that there had in the context of an earlier anti-dumping been a change in circumstances. Finally, the proceeding the Council and the Commission decision to substitute an anti-dumping duty had accepted undertakings given by for a price undertaking does not in itself exporters of electric motors originating in infringe the principle of legal certainty. As State-trading countries. 8 The exporters the Court has held, in particular in its undertook to raise their prices on judgment of 7 May 1987 in the Nippon importation to the Community. The Seiko case, 10 institutions accepted the undertakings because they considered that they were likely to eliminate the injurious effects of the imports found to have been dumped. 9

Second submission: Infringement of Regu- 11. In my Opinion in the direct actions, I lation No 2176/84 and certain general prin- have already stated that the Council was ciples of Community law entitled to determine the normal value on the basis of the domestic selling prices of Yugoslav producers. Consequently, the Community institutions properly refrained (i) Determination of normal value from determining the normal value on the basis of prices paid in the Community. This criterion should only be used when neither the prices nor the constructed value as 9. Article 2(5) of Regulation No 2176/84 determined in accordance with subpara- contains rules for the determination of the graphs (a) or (b) of Article 2(5) of Regu- normal value of a product in the case of lation No 2176/84 provides an adequate imports originating in non-market-economy basis. countries. In such a case, the normal value is to be determined in an appropriate and not unreasonable manner on the basis of one of the following criteria: (ii) Determination ofinjury

( a ) the price at which the like product of a market-economy third country is 12. Sermes maintains that the institutions actually sold for consumption on the have not established that Community domestic market of that country or to producers suffered injury because of the other countries, including the imports of electric motors. Community; or

In my Opinion in the direct actions I have (b) the constructed value of the like already examined the question of injury. product in a market-economy third There I stated that, having regard to all the country; or factors relevant to injury examined by the Commission (points 18 to 33 of the provisional regulation, Regulation No 3019/86) and its own analysis (points 17 to (c) where none of the criteria under (a) or 32 of the definitive regulation, Regulation (b) above provides an adequate basis, No 864/87), the Council did not go beyond the price actually paid or payable in the the limits of its discretion in determining Community for the like product. that imports originating in State-trading countries had caused significant injury to the Community industry.

the proceeding (more than 64 types), the Third submission: Misuse of powers Commission chose a sample of six types of motor of the category most frequently sold in the Community in order in particular to determine the price-linked factors affecting injury (see point 11 of Regulation No 3019/86). The Council based itself on the same sample. 14. Sermes maintains that the definitive regulation is vitiated by misuse of powers, since the institutions allowed themselves to be guided not by the Community interest but by the interest in sectorial protection of a Community industry, in particular a French industry. Sermes observes that that sample is not representative as far as its own sales in France of motors originating in the German Democratic Republic are concerned. Accordingly, in its view, the motors imported by it are sold to a different clientele from that of the large Community 15. As the Court has consistently held,11a manufacturers and there is no causal link decision is vitiated by misuse of powers only between imports originating in the German if it appears, on the basis of objective, Democratic Republic and losses suffered by relevant and consistent indications, to have Community producers. been adopted in order to achieve purposes other than those for which it was intended. In that respect it should be observed that Regulation No 2176/84 is intended precisely to enable the institutions to adopt measures capable of defending Community producers who suffer significant injury because of dumped imports of like products. 13. In my Opinion in the direct actions I In accordance with Article 12(1) of the stated that the Council was entitled to assess regulation an anti-dumping duty may, injury to the Community industry on the however, be imposed only if the interests of basis of the impact made by all dumped the Community call for Community action. imports of electric motors originating in In points 33 to 35 of the definitive regu- seven State-trading countries. That being lation, Regulation No 864/87, which follow the case, there is no need to examine on from points 34 to 38 of the provisional whether the sampling method used by the regulation, Regulation No 3019/86, the Community institutions was representative Council set out the reasons which led it to for imports originating in one only of the the view that the interests of the relevant countries. The argument Community required the adoption of a concerning the sample could only be taken commercial protective measure. For its part into consideration if it were to appear that Sermes has merely made assertions without the sample was not representative for all substantiating them. imports. However, in the light of the infor- mation available to the Court, there is 11 — Sec inter alia the judgment in Case 198/87 Kerzmann v Court of Auditors [1989] ECR 2083 (summary of the nothing to show that was the case. judgment, paragraph 2).

16. Sermes argues that the statement of the 18. Since the arguments concerning the reasons on which Regulation No 864/87 is preliminary steps leading to the adoption of based is deficient in several respects and the provisional regulation, Regulation No thus does not enable the Court to carry out 3019/86, may be left aside, the fifth judicial review. submission may be reduced to the single argument that the institutions infringed Article 7 of Regulation No 2176/84 and the right to a fair hearing by refusing to give 17. In that connection it should be recalled Sermes an opportunity to confront the that, as the Court has consistently held, 12 complainants. the statement of reasons required by Article 190 of the Treaty must disclose in a clear and unequivocal fashion the reasoning followed by the Community authority which In that connection it should be observed adopted the measure in question in such a that under Article 7(6) of Regulation No way as to make the persons concerned 2176/84, the Commission must, on request, aware of the reasons for the measure and give the parties directly concerned an thus enable them to defend their rights and opportunity to meet. It seems to me that the to enable the Court to exercise its super- expression 'parties directly concerned' must visory jurisdiction. be understood in the sense given to it by the Court in regard to the admissibility of actions brought against an anti-dumping In my opinion that requirement was satisfied regulation. As I pointed out above in in the present case with regard to the points Section 3, the Court has held that the regu- raised by the appellant in the main lation challenged by Sermes did not concern proceedings: it directly and individually. Moreover, Sermes has not proved that it requested a meeting. (i) as regards the complaint made by Gimelec, by point 4 of Regulation No 864/87; Sixth submission: Infringement of the principle of equal treatment

20. In conclusion I suggest that the Court should reply as follows to the question raised:

'Examination of Council Regulation (EEC) No 864/87 of 23 March 1987 in the light of Community law and in particular Council Regulation (EEC) No 2176/84 of 23 July 1984 has disclosed no factor of such a kind as to affect the validity of that regulation.'

13 — See the judgments in Case 14/74 Norddeutsches Vieh- und Fleischkontor v Hauptzollamt Hamburg-Ionas [1974] ECR 899, in Case 23/79 Gefliigetschlachterei Freystadt v Haupt- zotlamt Hamburg-Jonas [1979] ECR 2789 and in Case 12/88 Schäfer Shop v Minister van Economische Zaken [1989] ECR 2937.

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