C-99/94

3. The customs legislation which defined these tariff headings at the material time was Council Regulation (EEC) No 3618/86 of 24 November 1986, amending Regulation (EEC) N o 3331/85 amending Regulation 2. Commission Regulation (EEC) (EEC) N o 950/68 on the Common Customs No 3019/86 of 30 September 1986 (hereinaf­ Tariff, 4 and Commission Regulation (EEC) ter 'the 1986 Regulation'), 1 imposed a provi­ N o 3840/86 of 16 December 1986, amending sional anti-dumping duty on imports of the nomenclature of goods for the external standardized multi-phase electric motors trade statistics of the Community and statis­ having an output of more than 0.75 kW but tics of trade between Member States not more than 75 kW, originating in Bul­ garia, Czechoslovakia, the German Demo­ cratic Republic, Hungary, Poland, Romania 2 — OJ 1987 1.83, p. 1. and the USSR. Council Regulation (EEC) 3 — The full Official Journal title for the 1987 Regulation is No 864/87 of 23 March 1987 (hereinafter 'Council Regulation (EEC) N o 864/87 of 23 March 1987 imposing a definitive anti-dumping duly on imports of standardized multi-phase electric motors having an output of more than 0, 75 kW hut not more than 75 kW, originating in Bulgaria, Czechoslovakia, the German Democratic Repuhlic, Hungary, Poland and the Soviet Union, and definitively col­ * Original language: English. lecting the amounts secured as provisional duties'. 1 — OJ 1986 L 280, p. 68. 4 — OJ 1986 I. 345, p. 1.

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(Nimexe). 5 Subheading 85.01 B I b) fell B. Other machines and apparatus: within tariff heading 85.01 and, following Regulation No 3618/86, was worded as fol- lows:

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T h e N i m e x e codes w h i c h are used in Regu­ 4. F r o m the time of the progressive intro- lation N o 3840/86 are w o r d e d , in so far as d u c t i o n of the C o m m u n i t y ' s C o m m o n C u s - they refer to s u b h e a d i n g 85.01 Β I b), as fol­ t o m s Tariff during the 1960s, it was consid- lows: ered that C o m m u n i t y industry should be protected from unfair trade practices such as d u m p i n g , a description which can fairly be Renvoi applied to the sale below cost, often with the « Code au tarif Désignation des Nimexe douanier marchandises benefit of a subsidy, of p r o d u c t s on world commun markets. 7 T h e 1986 Regulation and the 1987 Regulation were adopted on the basis 85.01 BIb Multi-phase motors, of Article 12 of the general anti-dumping of an output of: regulation which was then in force, namely 85.01 -33 More than 7.5 kW but C o u n c i l Regulation ( E E C ) N o 2176/84 of not more than 37 kW 23 J u l y 1984, 8on protection against dumped or subsidized imports from countries not 85.01 -34 More than 37 kW but m e m b e r s of the European E c o n o m i c C o m - not more than 75 kW m u n i t y (hereinafter 'the Basic Regulation'). 9 85.01 -36 de plus de 37 kW à T h e p u r p o s e of the Basic Regulation was to 75 kW inclus u p d a t e the C o m m u n i t y ' s c o m m o n rules for C Parts: protection against d u m p e d o r subsidized Of generators, motors i m p o r t s from third countries. T h e concept of and rotary converters: d u m p i n g was defined by Article 2 as follows: 85.01 -89 Non-magnetic retaining rings 85.01 -90 Other 85.01 -93 Of transformers and inductors 85.01 -95 Of static converters and of rectifiers and rectifying apparatus'. 6

OPINION OF MR FENNELLY — CASE C-99/94

for free circulation in the Community causes complainants'. Article 13 set out various gen- injury. eral provisions on duties. They include the requirement that anti-dumping duties must be imposed by regulation, 11that such regu- lations must indicate, inter alia, the amount and type of the duty imposed, the product covered and that 'the amount of such duties shall not exceed the dumping margin provi- sionally estimated or finally established'. 12 2. A product shall be considered to have been dumped if its export price to the Com- munity is less than the normal value of the like product.'

10 — See Kapteyn and Verloren Van Themaat, cited in foot- 11 — See Article 13(1) of the Basic Regulation. note 7 above, p. 812. 12 — See Article 13(3) of the Basic Regulation.

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established a variable 3 form of anti­ incomplete or unfinished, provided that, as dumping duty which was designed to take imported, the incomplete or unfinished arti­ account both of the multiplicity of possible cle has the essential character of the complete types of motors concerned and, having or finished article. It shall also be taken to regard to the countries involved, the fact that include a reference to that article complete or the motors originated in State-trading coun­ finished (or falling to be classified as com­ tries operating command economies where plete or finished by virtue of this Rule), price formation was not the result, at least imported unassembled or disassembled.' not entirely, of market forces.

6. Article 1(5) of the 1987 Regulation (Arti­ Under Article 2 of the 1987 Regulation, the cle 2(5) of the 1986 Regulation) provided amounts secured by way of provisional anti­ that '[T] he provisions in force with regard dumping duty were to be 'collected defini­ to customs duties shall apply, subject to the tively at the level of the definitive duty provisions of this Regulation.' During imposed'. The 1987 Regulation entered into 1986 and 1987 the General Rules for the force on 28 March 1987. Interpretation of the Combined Nomencla­ ture of the Common Customs Tariff (herein­ after the 'General Rules') provided at Rule 2(a) as follows: 14

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was then) Czechoslovakia — and adding to 9. Before the Finanzgericht Rheinland-Pfalz them other motor parts from Community (hereinafter 'the national court'), the plaintiff countries; by building motors of its own, argued that the relevant import consign- using parts of imported third-country stan- ments did not include a number of important dardized MPMs, and turning them into spe- parts essential to a finished or complete cial motors in terms of their thrust, their MPM. In economic terms, those missing electrical design or both. parts (obtained by the plaintiff within the Community), together with the plaintiff's assembly costs in Germany, represent 30.35% of the price of a complete or finished standardized MPM, while the net unit price of such a motor is 43.57% higher than the total price payable on importing the stators and rotors. Furthermore, in technical terms, the imported parts could not function with- out the remaining parts which originated within the Community.

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that Rule 2(a) would operate so as to favour or the importation of finished or completed MPMs over that of parts.

do those regulations also cover incom­ plete or unfinished goods which, by vir­ tue of Rule 2(a) of the General Rules for 11. The defendant argued that the ratio in the Interpretation of the Combined value between parts and finished goods was Nomenclature, fall to be classified as irrelevant. Moreover, it contended that any complete or finished standardized, modifications of imported parts after their multi-phase electric motors? clearance through customs were irrelevant for customs classification purposes. Finally, according to the defendant, there was no legal foundation in the 1987 Regulation for waiving the application of, possibly exces­ sive, anti-dumping duties properly deter­ mined in accordance with its provisions. (2) If the second alternative to Question 1 is answered in the affirmative:

12. In order to give judgment the national court considered it necessary to refer the fol­ Which parts of a standardized, multi­ lowing questions to the Court: phase electric motor, either alone or in combination, have the essential charac­ ter of a complete or finished, multi­ phase electric motor;

'(1) Are Commission Regulation (EEC) No 3019/86 of 30 September 1986 and Council Regulation (EEC) and, in particular; No 864/87 of 23 March 1987 to be interpreted as imposing anti-dumping duty only on imports of complete or finished (even if presented as unassem­ bled or disassembled) standardized, multi-phase electric motors, within the meaning of Article 2(1) of Regulation is even a stator and winding together No 3019/86 and Article 1(1) and (2) of with a rotor and shaft to be subject to Regulation 864/87; anti-dumping duty?

What rate of anti-dumping duty should 14. On the other hand, the national court be applied to imported parts of stan­ notes that the fact that the Regulations refer dardized, multi-phase electric motors, to MPMs 'falling within subheading and how, and under which provisions, if ex 85.01 Β lb) of the CCT' might be indica­ occasion arises, should the duty on the tive of a legislative intention to impose anti­ imported motor parts be properly cal­ dumping duty on all imports falling for CCT culated?' classification purposes within that subhead­ ing. O n that interpretation motor parts would be classified as a complete or finished motor, by virtue of the application of Rule 2(a), if, when assembled, they presented that 'essential character' even though they were, in fact, incomplete and unfinished. The 13. The national court makes a number of national court believes that such an interpre­ observations concerning each question. tation would be more consistent with the Regarding the first question, it observes that purpose of the Regulations than an interpre­ the Regulations do not cater for the applica­ tation according to which only complete or tion of the anti-dumping duty to imported finished standardized MPMs could be sub­ motor parts; they contain no prices for jected to the relevant anti-dumping duty. motor parts nor any special rates of anti-dumping duty applicable to them. 1 5 The difference between the import prices of complete motors and their constituent parts could, in individual cases, result in the imposition of anti-dumping duty on an unfinished motor where, because of its higher net import price, no such duty would 15. The national court states that the pur­ be payable on a comparable complete motor. pose of the second question is to ascertain In other words, the total value of the whether, if the Regulations apply to those imported parts would be such as to exceed motor parts which may be considered as the minimum import value for a complete complete or finished MPMs, they can be motor specified in the legislation but, interpreted as applying to the imported parts because each import consignment is treated at issue in the present dispute. With regard to the third question, the national court expresses reservations about applying the anti-dumping duty. It raises the difficulty of 15 — It points out that motor parts are mentioned in recital 34 in applying the method of calculation of anti­ the preamble to the 1987 Regulation but not anywhere else in the text of either regulation. It should be noted, as the dumping duty set out in the Regulations for Commission has observed, that there is also a reference to motors to imported motor parts; the lower motor parts in recital 29 in the preamble to the 1987 Regu­ lation. the value of the imported part, which is

19. General customs provisions, such as Rule 2(a), are, according to the plaintiff, applicable, pursuant to Article 1(5) of the 1987 Regulation, only to the extent that they The plaintiff are consistent with provisions of that regu­ lation. However, Article 13(2) of the Basic Regulation required individual anti-dumping regulations to indicate the 'product covered'. The plaintiff, thus, submits that, as the Reg­ ulations in the present case expressly define the product covered by reference to specific 17. The plaintiff states that it is a medium- types of complete or finished MPMs, the sized undertaking employing about 80 work­ application of Rule 2(a) is thereby excluded. ers whose principal business involves the The plaintiff further contends that the fact manufacture of special electric motors in the course of which it uses motor parts both imported from third countries and purchased 16 — At the hearing, counsel for the plaintiff referred to recital within the Community. Each such special 29 of the 1987 Regulation in support of his contention that, while conscious that motor parts were being imported sep­ motor has to be specifically designed and arately into the Community, the Community legislature nevertheless deliberately decided not to include such parts manufactured for the needs of the plaintiff's within the scope of the Regulation.

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20. The plaintiff relies on the principle that the scope of a regulation is normally to be interpreted by reference to 'its own terms'. ' 7 While this principle is subject to exceptions, no derogation is permissible where the pro­ 22. In relation to the second question the posed interpretation would impose an obli­ plaintiff argues that, if its arguments on the gation on an affected party. 1 8 As this would first question are not accepted, the parts be the effect of the interpretation proposed involved in the present case do not possess by the defendant in the present case, it ought the essential character of a MPM as defined not to be accepted. In the present case, the in Article 1 of the 1987 Regulation, either plaintiff submits that an interpretation which from the perspective of their external appear­ limits the Regulations to complete motors is ance and functioning or by reason of not incompatible with Community law. The Rule 2(a). At the hearing the plaintiff Basic Regulation specifically enabled the referred to the Court's recent decision in Community legislature to determine the Develop Dr Eisbein. 2 1 It contended that the products to be subject to anti-dumping duty; Court held that, for the purposes of applying in this case both the initial investigation and the ultimate duty imposed were confined to complete or finished MPMs. 19 — See Case 183/73 Osram ν Oberfinanzdirektion [1974] ECR 477. 20 — In response to a question posed at the hearing, counsel for the plaintiff conceded that, while in the case of many of the imports at issue in the present proceedings the parts had 17 — Case 165/84 Krohn ν BALM [1985] ECR 3997, para­ been imported separately, in other cases they were imported graph 13 of the judgment. together in an assembled state. 18 — Case 6/78 Union Française de Céréales ν Hauptzollamt 21 — Case C-35/93 Develop Dr Eisbein ν Hauptzollamt Hamburg-Jonas [1978] ECR 1675. Stuttgart-West [1994] ECR I-2655.

23. So far as 'essential character' is con­ cerned, the plaintiff argues that the parts do not externally resemble electric motors, given the absence of various important pieces; namely, two bearing discs on the motorized part, the opposite part thereto and the cover for those discs. Internally they are also different; they lack ball-bearings, a ven­ tilator, a lid for the ventilator and a clamping device. Furthermore, they do not possess the essential feature of a MPM, namely the capacity, with the help of magnetic fields, of transforming electrical energy into mechani­ 26. O n the third question — again without cal energy. prejudice to its views in relation to the ear­ lier questions — the plaintiff maintains that, even if a stator and a rotor, taken together, were to be treated as equivalent to a com­ plete MPM, it would be anomalous to apply the method prescribed by the Regulations for the calculation of the anti-dumping duty. Article 1(3) of the 1987 Regulation provides that '[T] he amount of duty shall be equal, for each type of motor, to the difference 24. The plaintiff claims that between 65% between the net unit price, frce-at- and 85% of the costs of manufacture of its Community-frontier, not cleared through special electric motors comprises the costs of customs, and the price specified in the the parts other than the disputed third- Annex'. To apply that method of duty calcu­ country imports and its factory and assem­ lation to the importation of motor pans bly costs. In support it cites, by way of would infringe both the principles of legal example, while conceding the existence of certainty and proportionality. much variation, two costings for typical spe­ cial MPMs which, respectively, show the value of the Czechoslovak imports at 22 — Case C-26/88 Brother International ν Hauptzollamt 35.07% and 17.13%. Gießen [1989] ECR 4253.

29. The Commission firstly observes that the references to the tariff heading in the Regulations limit their scope to MPMs and that they do not apply to parts or pieces, which are classified under a separate sub­ heading. The effect of the application of Rule 2(a) is that, where imported parts pos­ sess the essential character of a complete 28. The imposition of the duty on motor MPM, they must be treated for customs duty parts would, as recognized by the national purposes as MPMs, but this does not neces­ court, result in the institution of a higher sarily produce the same result in the case of level of protection against such imports than an anti-dumping duty, whose application those of complete motors. The amount of depends principally on the regulation imple­ the duty would be higher both in absolute menting it. terms and, a fortiori, as a proportion of the value of the imported product. The plaintiff submits that this would infringe the principle of proportionality. Moreover, Article 13(3) of the Basic Regulation provides that the anti-dumping duty must not exceed the dumping margin and should, in any event, be 30. The Commission draws attention in par­ less if a lower level of protection would suf­ ticular to the decision of the Court in fice to eliminate the prejudice to the Com­ Dr Tretter which explained the relationship munity industry concerned. While the Regu­ between the CCT and anti-dumping regula­ lations respect this principle in so far as 25 tions. A simple reference, in an anti­ complete or finished motor imports are con­ dumping regulation, to a specific CCT head­ cerned, the plaintiff submits that the ing does not necessarily mean that every product within that heading is subject to the

33. The second reason advanced by the Commission in its written observations con­ 32. According to the Commission, there are cerned the method of duty calculation pre­ reasons which manifestly oppose such an scribed by the Regulations, which is predi­ interpretation. Firstly, the wording of the cated on two prices: the price paid by the Regulations reveals no indication that first independent purchaser of the imports incomplete motors are covered; there is no and the minimum price specified in the reference to parts in the 1986 Regulation and Annex. In explaining the possible basis for the reference in recital 29 in the preamble to calculation of duty in the case of parts, the the 1987 Regulation deals with a specific sit­ Commission identifies several possibilities, uation, namely the use by 'small scale Italian artisanal manufacturers' of 'parts originating in State-trading countries', with the apparent consequence that they were capable of com­ 26 — By way of example, the agent for the Commission referred to Article 1(3) of Council Regulation (EEC) No 1739/85 of peting with the prices of cheap imported 24 June 1985, imposing a definitive anti-dumping duty on imports of certain ball-bearings and tapered roller-bearings MPMs. The recitals in the preamble to the originating in Japan; OJ 1985 L 167, p. 3.

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all of which, it submits, are unsatisfactory; by the national court, it should do so nega­ the variable duty enjoined by the Regula­ tively in so far as the parts at issue in the tions does not provide for application to present case are concerned. It relied upon the imported parts, or at least not without lead­ Court's recent decision in GoldStar 29 ing to inequitable results. Europe. In view of its approach to the first two questions, the Commission did not make any submissions on the third.

37. In relation to the first question, it sub­ mits that the general principles governing the classification of goods contained in the CCT ought to apply to the interpretation of the 35. At the hearing, the Commission Regulations. It gives two reasons: (i) the observed that, even if the Court felt it neces­ Regulations make specific reference to the sary to answer the second question referred application of those principles; (ii) the simi­ larities between customs and anti-dumping duties, particularly in terms of the authorities 27 — They may be summarized as follows: (i) determining the responsible for their collection, suggest that difference between the minimum price for a complete the principles governing the interpretation of motor and the price of each part imported paid by the first independent purchaser; (ii) determining the difference one should influence those applied to the between the minimum price for a complete motor and the sale price of a standardized MPM; (iii) determining the dif­ other. It would be contrary to the principle ference between tile minimum price for an incomplete motor and the contract price agreed with the ultimate pur­ chaser of that unfinished motor. 28 — The Commission refers in this respect to Case C-35/93 Develop Dr Eisbein, cited in footnote 21 above, 29 — Case C-401/93 GoldStar Europe ν Hauptzollamt Ludwig- paragraph 18 of the judgment. sbafen [1994] ECR I-5587.

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of legal certainty for national customs addition of 'secondary' pieces during the authorities not to use customs nomenclature manufacturing process does not detract from rules in applying anti-dumping duties. Thus, the essence of the function assured by the the Government concludes that Rule 2(a) stator and rotor. In its view these pieces were applies in the present case. properly classified by the defendant as MPMs and thus subject to the anti-dumping duty.

30 — The French Government refers to the fact that, for example, in certain cleaning-up and decontamination operations sta­ tors combined with rotors can be used to drive pumps. 31 — Cited in footnote 13 above.

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40. With regard to the contention made by specific anti-dumping regulations, such as the plaintiff of the inequity of imposing the the 1986 Regulation and the 1987 Regu­ duty on it, the French Government says that lation, should refer both to tariff nomencla­ the effective rate of anti-dumping duty ture and general customs rules for the pur­ adopted in the Regulations already repre­ poses of providing the national authorities, sents a very modest amount having regard to charged with their application, with assis­ the effective dumping margin identified dur­ tance in identifying the products subjected to 32 ing the relevant investigations. It is only in the anti-dumping duty. The regulations, cases such as that of the plaintiff — which in thus, refer to CCT subheading the opinion of the Government are 'margin­ ex 85.01 Β lb), corresponding to Nimexe al' — that the costs of the parts other than code ex 85.01-33, 85.01-34 or 85.01-36, for the stator and the rotor and the manufactur­ the purpose of identifying the standardized ing costs represent a significant element of MPMs which are to be subject to the duty. the overall cost. The Government concludes For customs classification purposes, I agree that the system established by the Regula­ with the Government that the description of tions cannot be interpreted as being subject an article within a particular customs classi­ to variation in such cases and, moreover, the fication is not necessarily exhaustive. The Council cannot be considered to have over­ context and particular headings must also be stepped the limits of its margin of apprecia­ considered. tion in not enacting special rules for under­ takings such as the plaintiff.

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rule was articulated cogently by Advocate former. This is a contention which I cannot General Trabucchi when he stated that: accept.

35 — Ibid., sec paragraph 8 of the Opinion. 37 — Cited in footnote 17 above, paragraph 13 of the judgment. 36 — Paragraph 7 of the judgment; paragraph 17 of the Opinion. 38 — Ibid., paragraph 14 of lhe judgmeul.

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interpreted other than in a strictly literal believe that a literal interpretation of Arti­ manner. This, in my opinion, must particu­ cle 1(1) of the 1987 Regulation can only, larly be the case where a broad interpretation therefore, lead to the conclusion that parts would have grave pecuniary consequences are excluded. In my opinion that conclusion for affected traders, such as the plaintiff. is sufficient to dispose of the problem in the instant case.

39 — In support of this view, it is noteworthy that the French version, in contrast to the English and German texts, of the 40 — Case 304/86 R Enital v Coimcil and Commission [1987] subheading 85.01 C refers to ‘parties et pièces détachées’ ECR 267. (emphasis added). 41 — Ibid., paragraph 15 of the order.

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transformers, rectifiers and rectifying appara­ customs authorities justify the application of tus, inductors”, is divided into three sub­ Rule 2(a) and, consequently, an interpreta­ headings: tion of the 1987 Regulation which would apply it to imported parts which can be regarded as essentially similar to complete motors. It seems to me that, before address­ ing the relevance of possible difficulties which national authorities might face if 85.01 A (goods for use in civil aircraft) required to apply the 1987 Regulation to imported parts, I should examine whether the reference, inter alia, to Rule 2(a) dictates a non-literal interpretation of the material scope of the 1987 Regulation. 85.01 Β (other machines and apparatus)

85.01 C (parts),

imported 'complete or finished' or 'unassem- 50. In my opinion, Rule 2(a) applies, if at all, bled or disassembled', it nevertheless only where the allegedly essential parts are 'appears from the wording of this provision imported together or simultaneously pre- that it can apply only provided that the dis- sented for customs clearance. Even in those assembled parts are put forward simulta- cases, I do not believe that an anti-avoidance neously for customs clearance'. 43 In this rationale can be invoked to support the light, an affected trader would merely have application of the anti-dumping duty to to stagger or phase its imports in order to parts such as those imported by the plaintiff, ensure that no one consignment contained a which are not within the scope of the duty. number of parts sufficient to permit the application of Rule 2(a). The plaintiff con- tends that it should not be subject to the anti-dumping duty merely because it does not engage in such practices. At the hearing it admitted that, at the material time, it sometimes imported together the two parts in question. However, this was dependent not on its own volition, but, rather, on the manufacturing conditions prevailing at its Czechoslovak suppliers. 51. Rule 2(a) can apply only by virtue of Article 1(5) of the 1987 Regulation, which provides that the applicability of customs duty provisions shall be 'subject to the pro- visions of this Regulation' (emphasis added). In my opinion, it is clear that this condi- tional reference to customs law must be given its ordinary, literal meaning. A general rule of interpretation, such as Rule 2(a), could not, in any event, by virtue of its sim- ple adoption in Article 1(5) be allowed to extend the specific material scope of the duty ordered by the 1987 Regulation; its demo- 49. I believe that it follows from Osram tion to a subordinate ('subject to') role puts that, in the many cases where the plaintiff the matter beyond doubt. It is noteworthy imported stators separately from rotors, that the doubts of the national court regard- there can be no question of applying ing the application of Rule 2(a) arise princi- Rule 2(a). It follows, therefore, that in those pally from its concern about the dispropor- cases the first aspect of the first question tionate effects of applying the variable anti- referred by the national court should be dumping duty to imports of parts, such as answered affirmatively, while the second those at issue in the present case. I share aspect should be answered negatively to the those doubts. Even if I were to ignore the effect that the relevant imports manifestly do constraints imposed by the Basic Regulation not satisfy the conditions for the application on adoption of individual anti-dumping reg- of Rule 2(a). ulations, in particular the necessity for a prior investigation of alleged damage, and then assume that the Council could legiti- 43 — Ibid., paragraph 7 of the judgment. mately — which would appear to me to be

52. The French Government, however, argues that, since the Council did not opt to 54. I am also fortified in this view by the impose as high a rate of variable duty on cogent argument advanced by the Commis­ imports of complete MPMs as it could have sion in its written observations and based on done, in the light of the investigation actually the Court's judgment in Dr Treuer, 4 7 con­ carried out, and in accordance with the Basic cerning the proper relationship between anti­ Regulation, the mere fact that a higher vari­ dumping and customs duty provisions. In able rate of duty would be imposed on that case the Court was asked whether Arti­ imported parts than on complete motors 48 cle 1(1) of Regulation No 1739/85, which should not be considered unjust. This sub­ imposed an anti-dumping duty on certain mission must be rejected. I accept the plain­ ball-bearings and tapered roll-bearings origi­ tiff's argument that the straightforward nating in Japan, was invalid because the tariff application of the 1987 Regulation to motor heading to which it referred covered not parts would result in the institution of an only ball-bearings in the technical sense (i. e. unacceptably higher rate of protection radial bearings), but also so-called bearing against such imports than that expressly bushes (i. e. linear only guideways), even envisaged in that regulation for imports of though the anti-dumping proceedings which complete motors. In my view, such an appli­ cation of the 1987 Regulation would be incompatible with, inter alia, the economic basis of the regulation itself. Fortunately, an 44 — Cited at paragraph 32 above of this Opinion. ordinary interpretation of Article 1(5), as set 45 — Cited in footnote 26 above. out in paragraph 45 above, excludes such a 46 — Cited in footnote 25 above. 47 — Ibid. capricious and anomalous result. 48 — Cited in footnote 26 above.

led to the imposition of the duty in question to the anti-dumping duty, it would have set did not include such bearing bushes. Adopt­ out distinguishing criteria in their regard. ing, as its point of departure, the principles The present case can be distinguished from that when more than one interpretation of Dr Tretter in that the products which it is the wording of secondary Community law is sought to include within the scope of the open preference should be given to the inter­ anti-dumping duty are actually classified in a pretation which renders the provision con­ separate subheading. Given that specific ref­ sistent with the Treaty, and that implement­ erence to ‘parts’ in 85.01 C, I am satisfied ing regulations should, where possible, be that, if the Council had wanted to include interpreted in conformity with the provi­ such parts within the material scope of the sions of the Basic Regulation, 4 9 the Court anti-dumping duty, it would, at least, have held that the actual wording of the impugned incorporated a reference to that subheading provision, and, in particular, the words ‘fall­ in Article 1(1) of the 1987 Regulation. ing within heading N o ex 84.62 of the Com­ mon Customs Tariff’, permitted the conclu­ sion that the possible classification of a product under that heading does not auto­ matically result in the product being sub­ jected to an anti-dumping duty under that provision. I agree that it follows from Dr Tretter that a mere reference to a particu­ lar customs heading does not necessarily lead to every product falling within that heading being subjected systematically to the anti­ dumping duty. Whether it does will depend on the description adopted by the Commu­ nity legislature in the relevant anti-dumping regulation, the purpose of that regulation and its history read in the light of the requirements imposed by the Basic Regu­ 56. For all of the reasons articulated at para­ lation. In the present case, none of these fac­ graphs 41 to 55 above, I am convinced that tors supports the application of the the first question referred by the national 1987 Regulation to imported motor parts. court ought to be answered to the effect that the anti-dumping duty established by the Regulations at issue applies only to finished or complete MPMs, whether or not they are presented unassembled or disassembled. If the Court takes the view that Rule 2(a) applies it will be obliged to answer the sec­ ond question, which has been posed in the alternative by the national court. It is, of 55. In Dr Tretter the Court held that, had course, for the national court to apply the Council wished to subject bearing bushes Rule 2(a) where it is appropriate and, in the light of its assessment of the facts of the case, to reach a conclusion on whether an incom­ plete or unfinished article has the essential 49 — The Court cited Case 218/82 Commission ν Council [1983] ECR 4063 in support of the first principle and Case character of the complete or finished article. 38/70 Tradax [1971] ECR 145 as authority for the second principle, paragraph 11 of the judgment. In performing that task the national court

may also, as in this case, seek an interpreta complete product are presented together for tion of that rule from the Court, in the light customs clearance in a disassembled or unas of these facts. sembled state. In such a case the Court held that it was clear from the second sentence of the rule that those parts or components 53 'must be regarded as a complete article', and that 'no account is to be taken in that regard of the assembly technique or the complexity of the assembly method'. 54 The present case is entirely different since it con cerns the first sentence of Rule 2(a).

On the toms processing' so that an 'importer who assumption that they were imported simulta imports all the components necessary to pro neously (see paragraph 50 above), can the duce a finished article is afforded the possi stator and rotor be regarded, as submitted by bility of having the components classified as the French Government, as possessing the the finished article, that is to say the parts are essential character of the complete or fin not classified in the tariff headings relating to ished article? parts and accessories for the article in ques tion — if such headings exist — or in the tar iff headings which the components would otherwise fall under'. 52 It is clear from the terms of the Court's judgment in Develop Dr Eisbein that the Court in that case was concerned with the second sentence of Rule 2(a), namely the situation which applies when all the parts or components of a

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OPINION OF MR FENNELLY — CASE C-99/94

I-1816

BIRKENBEUL ν HAUPTZOLLAMT KOBLENZ

60. In the light of my conclusions concern­ Regulations on imported parts, and the third ing the first two questions, it is clear that no question should be answered accordingly. anti-dumping duty has been imposed by the

V — Conclusion

61. Accordingly, I am of the opinion that the questions referred by the Finanz­ gericht Rheinland-Pfalz should be answered as follows:

(1) Article 2(1) of Commission Regulation (EEC) N o 3019/86 of 30 September 1986 and Article 1(1) and (2) of Council Regulation (EEC) N o 864/87 of 23 March 1987 must be interpreted as imposing anti-dumping duty only on imports of complete or finished (even if presented unassembled or disassem­ bled) standardized multi-phase electric motors. Rule 2(a) of the General Rules for the Interpretation of the Combined Nomenclature does not apply so as to include incomplete or unfinished multi-phase electric motors within the scope of the anti-dumping duty established by those regulations.