61991J0136

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Common commercial policy ° Protection against dumping ° Interpretation of Community rules ° Anti-dumping duty ° Application of rates of anti-dumping duty individually assigned to exporters ° Export effected by an intermediary undertaking ° No effect

(Council Regulation No 374/87, Art. 1(3))

Article 1(3) of Regulation No 374/87 definitively collecting the provisional anti-dumping duty and imposing a definitive anti-dumping duty on imports of housed bearing units originating in Japan, which provides for the application of the individual rates of anti-dumping duty assigned to seven exporters listed by name and of a higher residual rate for other exporters, must be interpreted having regard not only to its wording but also to the context in which it occurs and the objects of the rules of which it is part. It may be seen from the basic regulation on protection against dumped or subsidized imports from countries not members of the European Economic Community that the amount of anti-dumping duties must not exceed the dumping margin and should be less if such lesser duty would be adequate to remove the injury. That principle, which is also embodied in Article 8 of the GATT Anti-Dumping Code, would be infringed if a higher anti-dumping duty were to be imposed on a product when it is exported by an intermediary undertaking than that applicable when the same product is exported to the Community market by the undertaking which has sold it to the intermediary undertaking. If in the latter case the duty prescribed was regarded as adequate to remove the injury, the application in the other case of a higher duty would be disproportionate to the objective sought.

Consequently Article 1(3) of Regulation No 374/87 must be interpreted as meaning that it is sufficient, for applying the individual rate of duty assigned to an exporter listed by name, that it should be proved that the housed bearing units presented for importation have been manufactured by or for that exporter.

In Case C-136/91,

REFERENCE to the Court under Article 177 of the EC Treaty by the Finanzgericht Baden-Wuerttemberg for a preliminary ruling in the proceedings pending before that court between

Findling Waelzlager Handelsgesellschaft mbH

and

Hauptzollamt Karlsruhe,

on the interpretation of Article 1(3) of Council Regulation (EEC) No 374/87 of 5 February 1987 definitively collecting the provisional anti-dumping duty and imposing a definitive anti-dumping duty on imports of housed bearing units originating in Japan (OJ 1987 L 35, p. 32),

THE COURT (Third Chamber),

composed of: R. Joliet, for the President of the Chamber, J.C. Moitinho de Almeida and F. Grévisse, Judges,

Advocate General: W. Van Gerven,

Registrar: H. von Holstein, Deputy Registrar,

after considering the written observations submitted on behalf of:

° Findling Waelzlager Handelsgesellschaft mbH, the plaintiff in the main proceedings, by Manfred Hofmann, Rechtsanwalt, Karlsruhe,

° the Commission of the European Communities, by Eric White, of its Legal Service, acting as Agent, assisted by Claus-Michael Happe, a national official seconded to the Commission,

having regard to the Report for the Hearing,

after hearing the oral observations of the plaintiff in the main proceedings and of the Commission at the hearing on 4 June 1992,

after hearing the Opinion of the Advocate General at the sitting on 2 July 1992,

gives the following

Judgment

1 By order of 7 May 1991, received at the Court on 24 May 1991, the Finanzgericht Baden-Wuerttemberg (Finance Court, Baden-Wuerttemberg) referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty two questions on the interpretation of Article 1(3) of Council Regulation (EEC) No 374/87 of 5 February 1987 definitively collecting the provisional anti-dumping duty and imposing a definitive anti-dumping duty on imports of housed bearing units originating in Japan (OJ 1987 L 35, p. 32) (hereinafter "the Regulation").

2 Those questions were raised in the course of proceedings between Findling Waelzlager Handelsgesellschaft mbH (hereinafter "Findling") and the Hauptzollamt Karlsruhe (hereinafter "the Hauptzollamt").

3 It appears from the documents before the Court that Findling imported housed bearing units from Japan, where they had been manufactured by Asahi Seiko Co. Ltd to the order of Nachi Fujikoshi Corp. Those units, which bear the mark "NACHI" were sold to the plaintiff in the main proceedings by Gloria International Corporation, Osaka, Japan, (hereinafter "Gloria") and Ehara Industries Ltd, Osaka, Japan, (hereinafter "Ehara"). The imports were subjected, on the basis of the Regulation, to an anti-dumping duty at the rate of 13.39% (hereinafter "the residual rate").

4 An objection raised by Findling to that decision of the Hauptzollamt was rejected and Findling then brought an action before the Finanzgericht Baden-Wuerttemberg in which it is claiming that the rate applied to the aforesaid imports is the result of an incorrect application of Article 1(3) of the Regulation.

5 The Finanzgericht Baden-Wuerttemberg, taking the view that an interpretation of that provision was necessary to enable it to give judgment, decided to stay the proceedings and referred the following questions to the Court for a preliminary ruling:

"(1) Is the table set out in Article 1(3) of Regulation (EEC) No 374/87 to be interpreted as meaning that it is sufficient for the application of the individual rates of anti-dumping duty assigned to products appearing against numbers 1 to 7 in Column 3 that the housed bearing units can be proved to have been manufactured by or for the corresponding undertaking (named in the column headed 'Exporters' )?

(2) If Question (1) is answered in the negative:

Is the last line of the table in Article 1(3) of Regulation (EEC) No 374/87 (' 8. Other; Products manufactured by: ° ; Manufacturer or trade-mark: ° ; Rate % : 13.39' ) to be interpreted as relating to the exportation by exporters other than those listed against numbers 1 to 7 of housed bearing units of any Japanese manufacturer with any or no manufacturer' s brand or trade-mark?"

6 Reference is made to the Report for the Hearing for a fuller account of the legal background to the dispute, the procedure and the written observations submitted to the Court, which are hereinafter referred to only in so far as may be necessary for the reasoning of the Court.

7 According to Article 1(3) of the Regulation:

"The rate of the anti-dumping duty shall be as set out below, expressed as a percentage of the net, free-at-Community frontier price before duty.

ExportersProducts manufactured byManufacturer

or trademark Rate

%1. Asahi Seiko Co.

LtdAsahi Seiko Co. Ltd ASAHI 4.58 2. Koyo Seiko Co.Nippon Pillow Block Manufacturing Co. KOYO 7.333. Nachi Fujikoshi

Corp.Asahi Seiko Co. Ltd NACHI 2.244. Nippon Pillow

Block Sales Co.

LtdNippon Pillow Block Manufacturing Co. FYH 3.775. Nippon Seiko KKNippon Seiko KK NSK13.396. NTN Toyo Bearing LtdNTN Toyo Bearing Ltd NTN11.227. Showa Pillow

Block Mfg. Co. LtdShowa Pillow Block Mfg. Co. Ltd NBR 3.998. Other ° °13.39"

8 The national court is uncertain as to whether, looking beyond the wording of the text, it is necessary to take account of the purpose behind it, which is to prescribe rates of anti-dumping duties not for all exporters but only for the undertakings manufacturing the products or causing them to be manufactured. Where the product is exported by a company acting as a mere intermediary, as, for example, Gloria or Ehara, it would be appropriate to inquire whether the product was manufactured by one of the undertakings listed in items 1 to 7 of the above table in the column headed "Exporters". In that event, it would be appropriate to apply the specific rate corresponding to that undertaking. Only if that were not the case would it be appropriate to apply the residual rate of 13.39% specified in item 8 of the table.

9 However, the national court stresses that only in an exceptional case is it permissible to interpret a provision contrary to its wording and that it would be difficult in this case to justify such an interpretation since, in contrast to other regulations, the objects of Regulation No 374/87 are not mentioned in the recitals in its preamble. In addition, regulations issued both before and after Regulation No 374/87 refer without distinction to manufacturers and exporters, including exporters who simply play a part as intermediary companies.

10 The Commission considers that the word "Other" in the column headed "Exporters" in relation to item 8 includes not only exporters who are also producers or exporters selling under their own brand or trade-mark products purchased from other producers, but also exporters who purchase the product in question and sell it under the producer' s brand or mark. That literal interpretation of Article 1(3) of the Regulation is necessary, the Commission claims, for reasons of legal certainty requiring a uniform application of customs rules within the Community.

11 It should be pointed out in that connection that, as the Court has consistently held, in interpreting a provision of Community law it is necessary to consider not only its wording but also its context and the objectives pursued by the rules of which it forms part (Cases 292/82 Merck v Hauptzollamt Hamburg-Jonas [1983] ECR 3781, paragraph 12 and 337/82 St Nikolaus Brennerei v Hauptzollamt Krefeld [1984] ECR 1051, paragraph 10).

12 It may be seen from Article 13(3) of Council Regulation No 2176/84 of 23 July 1984 on protection against dumped or subsidized imports from countries not members of the European Economic Community (OJ 1984 L 201, p. 1), and from the subsequent Council Regulation No 2423/88 of 11 July 1988 (OJ 1988 L 209, p. 1) that the amount of anti-dumping duties must not exceed the dumping margin and should be less if such lesser duty would be adequate to remove the injury.

13 That principle, which is also embodied in Article 8 of the GATT Anti-Dumping Code (Agreement on implementation of Article VI of the General Agreement on Tariffs and Trade, OJ 1980 L 71, p. 90) would be infringed if a higher anti-dumping duty were to be imposed on a product exported by a given undertaking than that applicable when the same product is exported to the Community market by the undertaking which has sold it to the undertaking in question. If in the latter case the duty prescribed was regarded as adequate to remove the injury, the application in the other case of a higher duty would be disproportionate to the objective sought.

14 That interpretation cannot be set aside on grounds of the need for a uniform application, within the Community, of the customs rules which would result from a literal interpretation of the provision in question. Such a uniform application must be ensured by a clear, exact and complete formulation of the Community rules in question.

15 Nor can that interpretation be set aside on the ground that the interested parties may obtain a review of the regulations imposing anti-dumping duties in accordance with Article 14 of the aforesaid Regulations Nos 2176/84 and 2423/88. Such a review may be justified only by changed circumstances, which in this case are not to be found in the main proceedings, and can in any event take place only when at least one year has elapsed since the conclusion of the investigation (Article 14(1) of the said Regulations Nos 2176/84 and 2423/88).

16 The reply to the first question must therefore be that the table set out in Article 1(3) of Council Regulation (EEC) No 374/87 of 5 February 1987 definitively collecting the provisional anti-dumping duties and imposing a definitive anti-dumping duty on imports of housed bearing units originating in Japan must be interpreted as meaning that it is sufficient, for the purpose of applying the individual rates of anti-dumping duty assigned to the marks listed in the third column in relation to the items numbered from 1 to 7, that the housed bearing units are proved to have been manufactured by or for the corresponding undertaking mentioned in the column headed "Exporters".

17 In view of the answer to the first question, there is no need to give a ruling on the second question referred to the Court.

Costs

18 The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable. Since these proceedings are, as regards the parties to the main proceedings, in the nature of a step in the proceedings before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT (Third Chamber)

in answer to the questions referred to it by the Finanzgericht Baden-Wuerttemberg by order of 5 February 1987, hereby rules:

The table set out in Article 1(3) of Council Regulation No 374/87 of 5 February 1987 definitively collecting the provisional anti-dumping duty and imposing a definitive anti-dumping duty on imports of housed bearing units originating in Japan must be interpreted as meaning that it is sufficient, for the purpose of applying the individual rates of anti-dumping duty assigned to the marks listed in the third column in relation to the items numbered from 1 to 7, that the housed bearing units are proved to have been manufactured by or for the corresponding undertaking mentioned in the column headed "Exporters".