C-315/90

Mr President, originating in Romania and Czechoslovakia Members of the Court, had not caused significant injury to the Community industry. As regards Bulgaria, the Commission eliminated Bulgaria from its study since no exports from that country had been recorded in 1988 or during the 1. In July 1989, the Commission received a investigation period, namely from 1 January complaint lodged by three trade associations to 30 September 1989. By Decision (Associazone Nazionale Industrie Elettro- 90/399/EEC of 26 July 1990 3 (hereinafter techniche ed Elettroniche (ANIE), Italy; referred to as 'the contested decision'), the Groupement des Industries de Matériels Commission terminated the anti-dumping d'Equipement Électrique et de l'Élec­ proceeding. tronique Industrielle Associée (Gimelec), France; and Asociación Nacional de Fabri­ cantes de Bienes de Equipo (Sercobe), Spain) representing Community producers of single-phase, two-speed electric motors used for the manufacture of low-speed washing machines (hereinafter referred to as 'electric motors'). ' According to the complaint, imports of similar electric motors originating in Bulgaria, Romania and Czechoslovakia were leading to dumping practices and therefore causing injury to the Community industry. The Commission was 2. Two of the three trade associations of the opinion that the complaint was which lodged the complaint, namely accompanied by sufficient evidence and Gimelec and Sercobe, and two Italian decided to initiate an anti-dumping producers of electric motors, namely Sole procedure. 2 SpA and Nuova IB-MEI SpA, brought a joint action for a declaration that the contested decision was void. In support of their claim the applicants put forward the two following submissions: the Commission T h e Commission's investigation led it to the was wrong in concluding that imports of conclusion that imports of electric motors electric motors originating in Romania and Czechoslovakia did not cause significant * Original language: French. injury to the Community industry (point 17 1 — Jļf electric moiors concerned fall within of the contested decision); furthermore, the C N Code 850140 90. It should be noted that these Commission was wrong in eliminating motors are used only in washing machines destined for markets in the south of the Community. As a result of the imports originating in Bulgaria from its damper and less sunny climate in the northern part of the Community, washing machines are sold there with motors study (point 7 of the contested decision). capable of spin-drying at a higher speed. 2 — Notice of initiation of an anti-dumping proceeding 3 — Decision terminating an anti-dumping proceeding concerning imports of certain single-phase, two-speed concerning imports of certain single-phase, two-speed electric motors originating in Bulgaria, Romania and electric motors originating in Bulgaria, Romania and Czechoslovakia (OJ 1989 C 286, p 11) Czechoslovakia (OJ 1990 L 202, p. 47).

'annulment proceedings may be brought either by the complainant or by an under- 5. Before I consider the arguments put taking which, even though it could not forward by the applicants to show that those lodge the complaint itself, played a leading two grounds are mistaken, it should be pointed out that, according to Article 4(2) 4 — Case 191/82 [1983] ECR 2913. of the basic regulation, as was stated in the 5 — Case 264/82 [1985] ECR 849. judgment in Neotype Techmashexport v 6 — Regulation (EEC) N o 2423/88 of 11 July 1988 on protection against dumped or subsidized imports from Commission and Council 8 at paragraph 50, countries not members of the EEC (OJ 1988 L 209, p. 1). 7 — Opinion delivered on 21 March 1991 in Case C-358/89 [1991] ECR 1-2501 ; see in particular paragraphs 18 to 22. 8 — Joined Cases C-305/86 and C-160/87 [1990] ECR 1-2945.

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OPINION OF MR VAN GERVEN - CASE C-315/90

However, as the Commission itself The Commission explains that its practice is acknowledged in its rejoinder, a number of to take as the basis for its findings the 'essential factors' led it to conclude that figures supplied in the answers to the ques- there was no injury, and two such factors tionnaires, corroborated where possible by coincide to a considerable extent with the Eurostat statistics. In this case those stat- grounds put forward by the applicants, istics, on which the figures used in the anti- namely the reduction in the market share of dumping complaint were based, did not imports originating in Romania and constitute evidence since they covered also Czechoslovakia and the increase in the products other than those concerned in the Community producers' selling prices. As anti-dumping proceeding. these are essential factors it is impossible to claim, as the Commission does in its defence, that even if the applicants' criticisms concerning the Commission's assessment of these two factors were justified, the contested decision is never- It follows that the Commission based its theless valid as regards the other factors decision on the statistics reasonably taken into account. In these circumstances available to it. Moreover the applicants have the applicants' arguments regarding the two not supplied any evidence which might factors in question should be examined, controvert these figures.

I - 5604

GIMELEC AND OTHERS v COMMISSION

The applicants rightly point out that the impact of imports cannot (as a rule) be validly assessed except on the 'free market'. As they state in the application, 'prices 8. The applicants also criticize the fact that applied within a group are "transfer prices" the Commission did not analyse the injury which do not necessarily reflect economic in relation solely to the 'free market' for reality and are not therefore comparable to electric motors. They observe that when a the prices obtained in normal commercial part of Community production is sold transactions with independent purchasers'. within the 'captive market' of an integrated That is, moreover, the reason why, in the group, that part cannot be regarded as course of its examination of the effects of being the subject of normal trading trans- the imports on Community producers' actions and so is not subject to the effects of prices and profits, the Commission referred

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O P I N I O N OF MR VAN GERVEN — C A S E C-315/90

to the purchasing policy of the group to production or consumption as a whole, that which one important Community producer is, the 'whole market', must be taken as a belonged (see paragraph 14 below). reference point for measuring the market share of the imports.

10 — 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 Next the article indicates that if the increase cratic Republic, Hungary, Poland and the USSR, and in imports is expressed in relative terms it definitively collecting the amounts secured as provisional duties (OJ 1987 L 83, p. 1). The Court considered that must be measured relative to production or regulation in the judgments delivered on 11 July 1990 in Joined Cases C-304/86 and C-185/87 Enitalv Commission consumption in the Community. It follows and Council, Joined Cases C-305/86 and C-160/87 that as a general rule Community Neotype Techmashexport v Commission and Council previously cited, Joined Cases C-320/86 and C-188/87 Stanko France v Commission and Council [1990] 9 — In German 'insbesondere'; in French 'notamment'; in ECR 1-3013, Case C-157/87 Electroimpex v Council [1990] ECR 1-3021 and Case C-323/88 Semes v Directeur Danish 'iszr'; in Spanish 'especialmente'; in Italian des Services des Douanes de Strasbourg [1990] 'soprattutto'; in Greek 'Ιδίως'; in Dutch 'in hel ECR 1-3027. bijzonder'; in Portuguese 'nomeadamente'.

I - 5606

GIMELEC AND OTHERS v COMMISSION

In these circumstances it seems to me that it was perfectly proper for the Commission to The effect of the imports on the prices assess the trend of the market share of the charged by the Community producers imports on the basis of the 'whole market'.

12. At the hearing the applicants claimed that the situation in this case and that in the 13. In points 15 and 16 of the contested proceedings which led the Council to decision, the Commission considers the impose an anti-dumping duty with regard to selling prices and profits of the Community imports of multi-phase electric motors by producers. In point 17 it draws the Regulation No 864/87 are identical. following conclusion:

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OPINION OF MR VAN GERVEN —CASE C-315/90

'The producers were able to increase their In my view the statement of reasons prices considerably in spite of undercutting. provided by the Commission in points 15, It was not possible to verify satisfactorily 16 and 17 of the contested decision satisfies arguments that these increases were the conditions laid down in the Court's inadequate, and these arguments seemed case-law. It is true that the Community irrelevant in the case of two of the producers are not mentioned by name in the producers, whose prices are set by their passages in question. However, the text washing-machine-making parent companies. makes it possible to identify, from the producers mentioned by name in point 5 of the contested decision, those to whom reference is made in these passages. Consequently the Commission is unable to attribute any deterioration in financial results during the investigation period to the imports in question.'

I - 5608

CIMELEC A N D OTHERS v COMMISSION

discretion when evaluating complex 17. The Commission first observed that it economic situations (see in particular the was not able to check that argument judgment in Nakajitna All Precision v because two undertakings accounting for Council, previously cited, at paragraph 86). almost half the Community production That is especially the case as regards the (Sole and Nuova IB-MEI) had supplied no choice and evaluation of the relevant data making it possible to assess their economic factors for determining the impact financial situation in the years preceding the of dumped imports on Community investigation period. That is an important production. In this case the Commission observation. It may be seen from the actual attached great importance to the finding wording of Article 4(2)(c) of the basic regu- that the Community producers had been lation that the impact of imports must be able to increase their selling prices during assessed in terms of trends in the relevant the period covered by the investigation. This economic factors. Consequently valid economic factor is expressly mentioned in conclusions on the impact of imports can be the indicative list 12 set out in Article drawn only if the financial situation of the 4(2)(c) of the basic regulation (sixth indent): Community producers at the time of the investigation can be compared to that of previous years. Such a comparison was all the more necessary in this case because the volume of imports in question had not significantly increased between 1986 and 1989.

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OPINION OF MR VAN GERVEN —CASE C-315/90

on the 'free market' since sales within the The plea regarding imports originating in group do not necessarily represent normal Bulgaria trading transactions and the results do not therefore necessarily reflect economic reality.

20. In the anti-dumping complaint the trade associations drew the Commission's attention to the threat of injury arising from imports of electric motors originating in Bulgaria. It may be seen from an extract from that complaint, annexed to the application, that they did so in the following 18. As regards the impact of the increase in terms : the world price of copper on production costs, the Commission stated at the hearing that a check on the invoices paid during the investigation period did not make it possible to confirm such an impact for all the Community producers. In fact the Commission pointed out, and the applicants 'The phenomenon of imports originating in did not challenge the point, that the prices Bulgaria is more recent and is for the invoiced to some producers during that moment confined to Spain. However, the period did not reflect the increase in the complainants have every reason to believe world price of copper over that period. In that there is a risk that it will shortly reach these circumstances it seems to me that the the same proportions as the imports from Commission was justified in thinking that Romania and Czechoslovakia. It seems, in the increase in production costs during the fact, that motors of Bulgarian origin are investigation period resulting from the now in the process of being approved by increase in the price of copper during that several large-scale washing-machine manu- period had not been proved. Moreover the facturers in Spain, France and Italy. As soon applicants have not provided any evidence as these procedures have been completed capable of refuting the Commission's (which usually takes between one and two conclusion on this point. years), it is very likely that large numbers of such motors will be ordered from the importers. The first imports now being made in Spain may therefore be regarded as heralding a Bulgarian break-through on the Community market representing a real threat of injury for the Community producers'.

In point 7 of the contested decision the Bulgaria were recorded during the inves- Commission states that it eliminated tigation period. Bulgaria from its study 'since no exports from this country had been recorded in In these circumstances the submission that 1988 or during the investigation period'. the elimination of exports from Bulgaria lacks any foundation is unjustified. 21. The applicants consider that the elim- ination of exports from Bulgaria lacks any foundation and they claim a declaration that 22. The same is true of the argument put the decision is void. forward by the applicants in the reply, to the effect that the Commission ought to The Commission points out that its decision have checked not only with the Spanish to eliminate exports from Bulgaria was customs but also with the French and Italian based on three sources of information. First, customs whether there had been any Eurostat figures did not mention any import imports. of electric motors originating in Bulgaria. In addition, the Bulgarian exporter stated that it had effected no exports to the The Commission carried out an additional Community during 1988 and 1989. Finally, check with the Spanish customs adminis- the Spanish customs administration had tration in view of the fact that the Bulgarian confirmed that there had been no imports of exporter's statement and the Eurostat data electric motors originating in Bulgaria both contradicted the statement of the trade during either 1988 or the period of the associations that 50 000 electric motors had investigation. been imported into Spain in 1988. However, the file contained no indication of imports The applicants put forward no evidence into Italy or France of electric motors ori- making it possible to establish that 50 000 ginating in Bulgaria which might have electric motors originating in Bulgaria had justified an additional check. Any criticism been imported into Spain in 1988 as stated of the Commission for failing to carry out in the anti-dumping complaint. Moreover such an additional check as regards imports they do not challenge the Commission's into Italy and France is therefore unjus- statement that no exports of motors from tified.