OPINION OF ADVOCATE GENERAL
F.G. JACOBS
delivered on 8 April 1992 ( *1 )
My Lords,
1.
In these proceedings, it will be recalled that the applicant, a French company, seeks the annulment of Council Regulation No 2808/89, OJ 1989 L 271, p. 1, imposing a definitive antidumping duty on imports of calcium metal originating in the People's Republic of China and the Soviet Union and definitively collecting the provisional antidumping duty imposed on such imports by Commission Regulation No 707/89, OJ 1989 L 78, p. 10. In the alternative, the applicant seeks the annulment of the 24th recital of the contested regulation, which records the Council's refusal to grant the applicant a special exemption from the duty imposed by the operative part of that regulation.
2.
The contested regulation sets the rate of the definitive duty at 21.8% of the net free-at-Community-frontier price of the product before duty for calcium metal originating in China and at 22.0% of that price for calcium metal originating in the Soviet Union. This represented a substantial increase over the provisional duty, which had been set at 10.7% of the net free-at-Community-frontier price before duty of goods originating in both countries.
3.
An interim application for the suspension of the contested regulation pending the outcome of the main proceedings was rejected by Order of the President dated 14 February 1990. An objection of inadmissibility raised by the Council was dismissed by judgment of the full Court on 16 May 1991.
The background
4.
The product which is the subject of the contested regulation, calcium metal, is used chiefly in the metallurgical industry. In particular, it is used by the applicant in the production of calcium granules, which are employed in metal refining and in the manufacture of a new generation of highperformance magnets intended to equip a variety of domestic and industrial appliances. For this purpose, the applicant requires calcium of a very high level of purity.
5.
Calcium of this type does not exist in the natural state and is only produced in five countries, namely the former Soviet Union, China, the United States of America, Canada and France. Since it began production of calcium granules, the applicant claims that it has been trying to obtain supplies of calcium from the only French producer, a company called Péchiney Electrométallurgie SA, but alleges that Péchiney has always been unable or unwilling to meet its requirements. According to the applicant, Péchiney's unwillingness to supply it is due to the fact that Péchiney is developing its own process for producing calcium granules. The applicant maintains that Péchiney's refusal to supply it amounts to an abuse of a dominant position within the meaning of Article 86 of the EEC Treaty and it has made a complaint to that effect to the Conseil de la Concurrence, the French competition authority, before which the matter is still pending. It was only in the face of its inability to secure supplies of calcium from Péchiney that the applicant says it turned to suppliers outside the Community, notably in China and the Soviet Union.
6.
In July 1987, the Commission received a complaint from the Community electrometallurgy and electrochemistry trade association, the Chambre Syndicale de l'Electrométallurgie et de l'Electrochimie, acting on behalf of Péchiney, to the effect that calcium metal from China and the Soviet Union was being dumped in the Community and causing injury. The Commission initiated an investigation (see OJ 1988 C 20, p. 3) which covered the period 1 January 1987 to 31 December 1987 and which led ultimately to the adoption of the contested regulation.
The applicant's challenge to the contested regulation
7.
The applicant challenges the validity of the contested regulation on essentially four grounds and I propose to examine each one in turn. Before doing so, I should make it clear that the applicant's challenge to the 24th recital of the contested regulation must in my view be understood as a challenge not to the recital itself but to the regulation in so far as it refuses to grant the exemption requested. As such, it must stand or fall with the applicant's challenge to the regulation as a whole. I do not consider that the Council has the power in circumstances such as these to grant an individual importer exemption from a regulation imposing an antidumping duty. Indeed, as the 24th recital of the contested regulation itself states, an exemption of the kind sought by the applicant would defeat the object of such a regulation. If the imposition of a duty in the present case was justified, there is no reason why the applicant should have been exempted from it, for it has no legitimate interest in continuing to receive imports of calcium at dumped prices.
8.
It will be noted that the arguments on which the applicant relies in challenging the validity of the contested regulation were for the most part advanced before the Commission and the Council prior to its adoption. The preamble to the contested regulation, and the preamble to Regulation No 707/89, set out in some detail the answers of the Commission and the Council to most of those arguments. In its pleadings, the Council mainly confines itself to reiterating those answers. It will not therefore be necessary for me to give a detailed summary myself of all the arguments of the parties.
(i) The similarity of the products
9.
According to Article 2(1) of the basic regulation, Regulation No 2423/88 on protection against dumped or subsidized imports from countries not members of the EEC, OJ 1988 L 209, p. 1, ‘An antidumping duty may be applied to any dumped product whose release for free circulation in the Community causes injury.” In order to establish injury for these purposes, it must be shown that the dumped imports are “causing or threatening to cause material injury to an established Community industry or materially retarding the establishment of such an industry”: see Article 4(1). By virtue of Article 4(5), the term ‘Community industry’ refers inter alia to “the Community producers as a whole of the like product or to those of them whose collective output of the products constitutes a major proportion of the total Community production of those products ...”. The term ‘like product’ is defined by Article 2(12) as “a product which is identical, i. e., alike in all respects, to the product under consideration, or, in the absence of such a product, another product which has characteristics closely resembling those of the product under consideration.’
10.
In the seventh recital of the contested regulation, the Council concluded ‘... that the Chinese and Soviet imports are like products to calcium metal produced in the Community, within the meaning of Article 2(12) of Regulation (EEC) No 2423/88.’ This conclusion is contested by the applicant, which maintains that calcium produced by Péchiney is inferior in quality to Chinese and Soviet calcium and that it is more difficult to use. According to the applicant, this is because the Chinese and Soviet producers use a different production method, which results in a metal containing over 99% calcium, while the method used by Péchiney results in a metal containing 96% to 97% calcium. It emerged at the hearing that the production method employed by the Chinese and Soviet producers involves the consumption of large amounts of electricity and that it would be uneconomic for producers in the West to use the same method. The applicant claims that as a result calcium metal supplied by Péchiney has to be subjected to further treatment before it reaches the degree of purity of Soviet and Chinese calcium metal and that this evidently increases the cost of using it.
11.
Péchiney and the Chambre Syndicale have intervened jointly in support of the Council. In the remainder of this Opinion, I shall for convenience refer to the former only. Péchiney does not deny that Soviet and Chinese calcium metal is of a higher degree of purity than its own but does not accept that the two products cannot be considered ‘like products’ for the purposes of the basic regulation. According to Péchiney, the two products are interchangeable for most purposes and Extramet only requires calcium metal of a particularly high degree of purity because of the special characteristics of its production process. Extramet, naturally, maintains that that process produces a more effective end product than the alternative end products available, even though those alternatives can be produced using calcium metal of a lower degree of purity.
12.
Recital 6 of the contested regulation records that ‘the Commission has concluded that, although Community-produced calcium metal is of a slightly lower degree of purity than Chinese and Soviet imported calcium metal, Community produced calcium metal and the imponed product from the People's Republic of China and the Soviet Union have sufficiently close physical and technical characteristics, the same end uses and the same markets to be considered as like products.’ The applicant takes exception to the Council's statement that the difference in purity between Community-produced calcium metal and Chinese and Soviet calcium metal is slight, maintaining that a difference of less than 1% can have a crucial effect on the suitability of the material for its intended purpose. It repeats its call, first made without success before the Commission, for an expert to be appointed to look into the question of similarity.
13.
The Council draws attention to a number of factors, not all of them decisive in themselves but which in my view weaken the applicant's claim that calcium metal produced in the Community and calcium metal produced in China and the Soviet Union cannot be considered like products. First, although the applicant maintains that calcium metal supplied by Péchiney only meets its requirements if it is subjected to further treatment, it does not deny that it is technically possible for it to use calcium metal supplied by Péchiney. Secondly, the Soviet exporter also claimed during the course of the investigation that its product was not a like product to Péchiney's, but on the ground that Soviet-produced calcium metal was poorer in quality. Thirdly, no end user of calcium metal has intervened at any stage of the proceedings to contest the Commission's findings. Fourthly, and perhaps decisively, the applicant's claim that it only turned to suppliers in China and the Soviet Union after Péchiney had proved unwilling to supply it, and that Péchiney is thereby guilty of an abuse of a dominant position within the meaning of Article 86 of the Treaty, implies that Péchiney's product would have been adequate for its purposes, had the applicant been able to obtain it. If the alleged inferior quality of Péchiney's product made it unsuitable for the uses to which the applicant wished to put it, it is difficult to see why the applicant should have gone to such lengths to obtain supplies from that source. Indeed, in its application to the Conseil de la Concurrence, which is annexed to its application in the present case, the applicant claims that Péchiney would have had no difficulty in supplying it with calcium metal in the quantity and quality required. Moreover, the applicant acknowledged at the hearing that it could use calcium produced by Péchiney for some purposes.
14.
I therefore consider that the Commission and the Council were justified in concluding that calcium metal produced in the Community had characteristics closely resembling those of calcium metal produced in China and the Soviet Union within the meaning of Article 2(12) of the basic regulation, even if the two products are not identical. In a number of the ‘Plain Paper Copiers’ cases decided on 10 March 1992 (Cases C-171/87, C-174/87, C-175/87, C-176/87, C-177/87, and C-179/87), the Court acknowledged that products could be considered similar for the purposes of antidumping proceedings where they were in competition with each other. It is clear that for many applications (although the precise number is in dispute), calcium of the level of purity produced in China and the Soviet Union is not necessary. For those applications, calcium produced in those countries must therefore be considered to be in competition with calcium produced by Péchiney. The Commission was therefore in my view entitled to conclude that the two products were similar. It was not in my view necessary for an expert to be appointed to look into the matter before that conclusion was reached.
(ii) The calcuhtion of normal value
15.
Recital 9 of Regulation No 707/89 states:
‘In establishing whether imports originating in the People's Republic of China or the Soviet Union were being dumped, the Commission had to take account of the fact that these countries do not have market economies within the meaning of Article 2(5) of Regulation (EEC) No 2423/88 and had to adopt one of the methods of calculation of normal value provided for in that Article.’
16.
Pursuant to Article 2(5)(a) of the basic regulation, the Commission accordingly looked at the price at which the like product was actually sold in the United States for consumption on the domestic market by a company called Quigley-Pfizer. The applicant contests the Commission's choice of the United States as an appropriate market economy third country for these purposes on the basis that Quigley-Pfizer is the only producer in the US and that there is insufficient domestic competition there. Moreover, it argues that most of Quigley-Pfizer's sales are not made in the ordinary course of trade (see Article 2(7) of the basic regulation) but to associated companies and that Quigley-Pfizer is therefore able to make excessive profits. The applicant maintains that the normal value should have been constructed under Article 2(5)(b) of the basic regulation.
17.
The Council claims that the Commission only took account of sales by Quigley-Pfizer to independent end users and that the prices it charged during the reference period allowed a reasonable but not excessive profit: see recital 8 of the contested regulation. Indeed, according to the Council, Quigley-Pfizer stated that it did not make any internal sales to its chemical and pharmaceutical subsidiaries during the reference period. The Council therefore maintains that it was justified in confirming the Commission's findings in respect of the determination of the normal value. Moreover, in its defence the Council reiterates that, according to recital 11 of Regulation No 707/89, the Commission ensured that Quigley-Pfizer was subject to competition from imports on its domestic market.
18.
As the Court made clear in Case C-16/90 Nolle v Hauptzolhmt Bremen-Freihafen, judgment of 22 October 1991, although the choice of third country for these purposes falls within the scope of the discretion enjoyed by the Community institutions in the appraisal of complex economic situations, the exercise of that discretion is in principle subject to judicial review. The Court will intervene where it has been shown that the procedural rules applicable have not been respected or that the institutions have made a factual error or misused their powers. Moreover, the Court pointed out, at paragraph 13 of the judgment in Nolle, that it was necessary to ensure that the institutions had taken account of all relevant considerations in choosing a suitable third country and that the matter had been examined with the care required to establish that the normal value had been fixed in an appropriate and reasonable manner.
19.
None the less, the claims made by the Council in the preamble to the contested regulation on this issue have not been refuted by the applicant. Indeed, the applicant accepts in its application that a considerable volume of calcium was imported into the United States at the material time, particularly from Canada. I do not therefore consider that the applicant has established that the requirements laid down in Nolle -were not satisfied in the present case.
(iii) Injury
20.
The applicant contests the statements made by the Commission in the preamble to Regulation No 707/89 and confirmed by the Council in the contested regulation concerning the question of injury. In particular, the applicant denies that any injury suffered by the Community industry was attributable to the alleged dumping as required by Article 4(1) of the basic regulation, according to which injury caused by factors other than the effects of the dumping, ‘such as volume and prices of imports which are not dumped or subsidized, or contraction in demand, which, individually or in combination, also adversely affect the Community industry must not be attributed to the dumped or subsidized imports.’ The applicant points out that, by virtue of Article 4(2),
‘An examination of injury shall involve the following factors, no one or several of which can necessarily give decisive guidance:
(a)
volume of dumped or subsidized imports, in particular whether there has been a significant increase, either in absolute terms or relative to production or consumption in the Community;
(b)
the prices of dumped or subsidized imports, in particular whether there has been a significant price undercutting as compared with the price of a like product in the Community;
(c)
the consequent impact on the industry concerned as indicated by actual or potential trends in the relevant economic factors ...’
21.
The Commission's findings with regard to injury are set out in recitals 16 to 22 of Regulation No 707/89. According to the Commission, imports of calcium metal from China fell from 130 tonnes in 1985 to 119 tonnes in 1987, having reached a total of 150 tonnes in 1986. Imports from the Soviet Union rose from 60 tonnes in 1985 to 428 tonnes in 1986 before falling back to 145 tonnes in 1987. The Commission points out that the surge of Soviet imports in 1986 led to a buildup of surplus stock.
22.
The Commission explains that this trend needs to be seen against a steady drop in consumption recorded in the Community since 1985. According to the applicant, the fall in consumption was due, at least in part, to technological advances which meant that smaller quantities of calcium were needed to perform functions which previously required much larger quantities. As a result of this fall in consumption, the market share accounted for by Chinese imports rose from 12% in 1985 to 20% in 1987, while the market share of Soviet imports rose from 6% in 1985 to 25% in 1987.
23.
It appears that Péchiney made substantial investments in 1985 and 1986 following decisions taken when the market was expanding. The increasing share of the market taken by imports had a dramatic effect on Péchiney's production capacity utilization, which fell from 81% in 1985 to 52% in 1987. Between those years, Péchiney was forced to cut its labour force by half and in 1987 it suffered considerable financial losses. In reaching the conclusion that the injury sustained by Péchiney had been caused by the imports from China and the Soviet Union, the Commission found that the decline in Community consumption had been almost exactly matched by a fall in imports from third countries other than China and the Soviet Union. It therefore took the view that the injury could not be attributed to imports from such third countries.
24.
The applicant challenges the reliance placed by the Commission and the Council on Péchiney's production figures for 1985 on the basis that that year was exceptional. The applicant maintains that, on the basis of its production in previous years, Péchiney's production might have been expected to increase by about 10% annually. On this basis, Péchiney would have produced about 660 tonnes in 1985, whereas it in fact produced 927 tonnes. The conclusion drawn by the applicant is that Péchiney overestimated the potential demand in the Community for calcium metal. The applicant further claims that, if the exceptional figures for 1985 are disregarded, Péchiney's fall in production seems much smaller and suggests that the company has hardly suffered at all from the fall in consumption. The applicant adds that Péchiney's decision to make substantial investments in 1985 and 1986 was unwise in the light of that fall.
25.
The Commission and the Council consider this claim to be unfounded. The Council maintains that the decision to invest in new capacity was taken by Péchiney in 1984 when capacity utilization was at a level of 92% and when the market was in a state of expansion. This claim has not been refuted by the applicant and seems to meet its contention that the year 1985 should not have been taken into account. The Commission and the Council cannot in my opinion be expected to assess the wisdom of management decisions taken by undertakings involved in dumping proceedings unless compelling evidence is adduced that a particular decision was wholly unreasonable. I consider that the Commission and the Council were entitled to take the view that Péchiney could not be criticized for failing to foresee the contraction in demand and that the injury suffered by Péchiney as a result of the increased volume of imports from China and the Soviet Union could not be attributed to any errors of judgment which might have been committed by the management of Péchiney.
26.
The applicant further contends that it was itself responsible for a large part of the imports of calcium metal from China and the Soviet Union in the period under consideration and that it only had recourse to those sources because of Péchiney's unlawful refusal to supply it, an allegation to which I have already referred (see paragraph 5 above). According to the applicant, had Péchiney been prepared to meet its requirements, imports from China and the Soviet Union would have been much lower and Péchiney's utilization of its productive capacity greatly improved. In short, the applicant claims that any injury suffered by Péchiney was largely self-inflicted and should therefore be disregarded.
27.
The Commission's response to this claim, confirmed by the Council, is in my view less than wholly convincing. Recital 15 of the contested regulation states:
‘The third argument concerns a claim that the Community producer has suffered self-inflicted injury in refusing to supply calcium metal to the importer, who has begun court proceedings in one Member State against the Community producer alleging abuse of dominant position.
The Commission notes that the Community producer has denied these allegations and that no final judgement has yet been reached in the Court proceedings in the Member State concerned.
The Commission takes the view that the purpose of antidumping proceedings is not, and cannot be, to condone or encourage restrictive business practices, and that the initiation of such a proceeding does not therefore deprive an undertaking of its right to initiate proceedings under Articles 85 and 86 of the Treaty, the outcome of which cannot be prejudiced by an antidumping investigation. Moreover, if and when an infringement of Articles 85 and 86 is discovered and a decision has been made under Regulation No 17, the Commission may review the present antidumping proceeding in accordance with Article 14(1) of Regulation (EEC) No 2423/88.’
28.
As far as the first part of the Commission's response to this claim is concerned, it was plainly insufficient to dispose of the matter to say simply that the Community producer had denied the allegations in question. Moreover, if the matter was relevant, the absence of a final judgment in the national proceedings could not absolve the Commission of its duty to pursue it.
29.
With regard to the second point made by the Commission, similar reasoning has been used by the Commission in other dumping cases to justify disregarding arguments based on the Treaty competition rules. ( 1 ) It is therefore evident that that paragraph is merely a standard formula. It was particularly inappropriate in the present case, since the proceedings relating to Article 86 of the Treaty were brought not under Regulation No 17 (OJ English Special Edition 1959-62, p. 87) but, quite legitimately, before the competent national authorities. In any event, merely to leave open the possibility that the dumping proceedings may be reviewed if an infringement of the competition rules is subsequendy established is clearly an inadequate response, for the party seeking to rely on those rules may by then have suffered irreparable damage. Such an approach does not in my view provide an adequate safeguard against the use of antidumping proceedings to subvert the Treaty competition rules.
30.
The difficulty of reconciling recourse to antidumping measures with considerations of competition, or antitrust, policy is widely recognized ( 2 ) and was recently discussed by Advocate General Van Gerven in the Nolle case, already cited: see in particular paragraph 11 of his Opinion. As one commentator has observed, “Antitrust law ... is intended to preserve competition, which in general means keeping prices down; antidumping measures are intended to prevent unfair competition and therefore, on occasions, to put prices up. Any antidumping laws, if not carefully used, may tend to chill competition ...”: see Temple Lang, loc. cit., p. 7-2.
31.
The special status of competition policy under the EEC Treaty is reflected in Article 3(f), which includes among the activities of the Community ‘the institution of a system ensuring that competition in the common market is not distorted.’ The fundamental importance of that objective was emphasized by the Court in Case 6/72 Europembattage and Continental Can v Commission [1973] ECR215, at paragraph 24.
32.
It is true that, by virtue of Article 3(b), the activities of the Community also include “the establishment of a common customs tariff and of a common commercial policy towards third countries” and that it is in the framework of that policy that action against dumping is taken: see Article 113 of the Treaty. None the less, while the Treaty recognizes the need for protection against dumping as a necessary evil, that need must not be met without taking account of the objective set out in Article 3(f).
33.
I accept that, in principle, the procedures for investigating complaints of dumping and alleged infringements of the competition rules are separate, as the Council points out in the preamble to the contested regulation. Cases may arise, however, where failure to take account of competition policy considerations might lead to the adoption of antidumping measures which produce effects which are inconsistent with that policy. It is therefore essential in my view that proper account be taken of competition policy considerations when the imposition of antidumping duties is being considered. (It may also be necessary on occasion for commercial policy considerations to be taken into account in competition cases, but that issue does not fall to be decided in these proceedings.)
34.
Generally, it will be appropriate for the institutions to take relevant competition policy considerations into account when they consider whether ‘the interests of the Community’ call for intervention (see Article 11(1) of the basic regulation in relation to provisional duties and Article 12(1) of that regulation in relation to definitive duties). This is a matter to which I shall return. Competition issues may also arise in other contexts, however, notably in relation to the question of injury, as the present case demonstrates. Indeed, it will be noted that one of the predecessors of the basic regulation expressly mentioned competition between Community producers as a factor to be considered in establishing whether the clumped imports were causing injury: see Article 4(3) of Regulation No 459/68, OJ English Special Edition 1968 (I), p. 80.
35.
In the present case, the applicant has argued that the injury said to have been suffered by Péchiney is self-inflicted in that it results from an infringement by Péchiney of Article 86. It is clear that this matter is not raised frivolously or vexatiously: it has been the subject of a complaint by the applicant to the French competition authorities and documentary evidence purporting to show that Péchiney intended to damage the applicant's business was supplied to the Commission in the course of the investigation. If the applicant is right, the conditions for the imposition of a duty were not satisfied.
36.
The Council does not address the substance of this argument either in the preamble to the contested regulation or in its pleadings. None the less, the Commission, which has intervened in support of the Council, seeks to expand on the cursory manner in which the alleged infringement of Article 86 is dealt with in the preamble to the contested regulation. In its observations, the Commission claims for the first time that it did in fact examine the applicant's claim, but concluded that Péchiney did not hold a dominant position because of the open character of the Community market for calcium metal. The Commission adds that the subject of the dispute between the applicant and Péchiney seems to be the quality of the product rather than Péchiney's willingness or otherwise to supply the applicant. In the Commission's view, disputes of this nature fall within the scope of the law of contract rather than that of the law of competition.
37.
I do not consider the points made by the Commission sufficient to dispose of the matter. The Commission seems to concede that neither it nor the Council was in a position to decide whether the injury suffered by Péchiney was self-inflicted without forming a view on the merits of the applicant's allegation that Article 86 of the Treaty had been infringed. However, the preamble to the contested regulation contains no indication that the substance of that allegation was given serious consideration by the Commission or by the Council before the decision was taken to impose a duty. The Council's failure to deal with the substance of the matter in the preamble to the contested regulation must in any event be considered incompatible with the requirements of Article 190 of the Treaty, which requires regulations to state the reasons on which they are based.
38.
The legality of Péchiney's alleged refusal to supply the applicant is not the only competition issue which the Commission and the Council failed to resolve. The applicant claims that, until 1986, Péchiney's prices were lower than those of the Chinese and Soviet producers and had the effect of forcing the latter to lower their prices in order to penetrate the Community market. In reply, the Council states that the Commission has established price undercutting by the Chinese and Soviet exporters during the reference period, namely the calendar year 1987. It goes on (see recital 18 of the contested regulation):
‘The argument as to who started the price undercutting, prior to 1985, is now considered difficult, if not impossible, to determine and in any event, whether the exporters concerned initially intended only to align their prices on those of the Community producer is not considered relevant to the issue of price undercutting during the period in which injury had been examined. The recalculation of price undercutting has confirmed that there is evidence that dumped Chinese and Soviet exports have undercut the prices of the Community producer.’
39.
I accept the difficulty of determining who started the price undercutting. Since, however, I have already concluded that the findings of the Commission and the Council with regard to injury cannot be supported, I do not consider it necessary to pursue this point.
(iv) The interests of the Community
40.
As I have mentioned, according to Article 12(1) of the basic regulation a definitive antidumping duty may only be imposed ‘[w] here the facts as finally established show that there is dumping ... and injury caused thereby, and the interests of the Community call for Community intervention ...’ The applicant maintains that the interests of the Community in the present case, far from calling for intervention, in fact require the applicant to be allowed to pursue its activities, which it says make an important contribution to the development of a competitive European industry. According to the applicant, there is no strategic reason for maintaining calcium metal production in the Community. It also alleges that the impact of a duty would significantly increase its costs and threaten its continued viability. It claims that this would put an end to the leading contribution it is making to the development of new types of magnets.
41.
These claims are rejected by the Council and the Commission, which take the view that ‘in the absence of any protection against the injurious effects of the dumped Chinese and Soviet imports, the viability of the sole Community producer would be jeopardized and the Community would then be entirely dependent on outside sources of calcium metal for use in the metallurgical industry’ (contested regulation, recital 20). Moreover, the Commission and the Council maintain that, in calculating the effect of the duty on its business, the applicant took account not only of the duty itself but also other increases in production costs and changes in currency rates between 1988 and 1989. The Commission's examination was of necessity based on the facts established in the investigation period and showed that the proposed measures would have a limited effect on the applicant's total costs and an insignificant effect on Community end users of calcium metal. It has also been claimed in the course of these proceedings that most of the calcium metal purchased by the applicant from sources outside the Community is imported under inward processing arrangements and re-exported after treatment. Accordingly, it is not released for free circulation in the Community and no duty is payable. The Council notes that no Community end users requested a hearing or made any written submissions after the imposition of the provisional duty (contested regulation, recital 23).
42.
The Court recently reaffirmed in a number of the ‘Plain Paper Copiers’ cases that the question whether the interests of the Community call for intervention involves the appraisal of complex economic situations and that judicial review of such an appraisal is limited to verifying whether the relevant procedural rules have been complied with, whether the facts on which the choice is based have been accurately stated and whether there has been a manifest error of appraisal or a misuse of powers: see e. g. Case C-174/87, judgment of 10 March 1992, at paragraph 68. In the present case, I do not consider that the applicant has provided sufficient material to justify interfering with the conclusion of the Commission and the Council that the need to avoid the Community becoming dependent on outside sources of calcium metal outweighed the interest of users in continued access to supplies of calcium metal at the lowest possible prices.
43.
None the less, that conclusion was not in my view sufficient to establish that the interests of the Community called for intervention, for consideration should also have been given to the question whether the imposition of a duty was consistent with the competition policy of the Community. That the institutions must take account of relevant competition policy considerations in dumping cases when they consider whether the interests of the Community call for intervention was acknowledged by Advocate General Van Gerven in his Opinion in the Nolle case, already cited, and by the Commission itself in its ‘Guide to the European Communities' Anti-Dumping and Countervailing Legislation’ (reproduced in Van Bael and Bellis, Anti-Dumping and other Trade Protection Laws of the EEC (2nd ed., 1990), pp. 594-600), paragraph 12 of which states that ‘Community interest may cover a wide range of factors but the most important are the interests of consumers and processors of the imported product and the need to have regard to the competitive situation within the Community market.’
44.
The question of the effect of the imposition of a duty on competition in the common market should have been examined in connection with the interests of the Community because of the possibility that, even if Péchiney did not have a dominant position prior to the imposition of the duty, the effect of the contested regulation would be to place it in such a position. It may be noted that, according to Article 2(3) of Regulation No 4064/89 on the control of concentrations between undertakings (OJ 1989 L 395, p. 1), a concentration which creates a dominant position as a result of which effective competition is significantly impeded is to be considered incompatible with the common market. In my view, the institutions equally have a duty to consider whether antidumping duties should be imposed where they would have the same effect.
45.
Whereas in relation to the question of injury the competition issues needed, as I have explained, to be considered in order to establish that the conditions for the imposition of a duty had been met, in relation to the interests of the Community the issue which needed to be decided was essentially one of policy. It seems to me that, in dumping cases, the Community institutions have a duty to balance the need to protect the Community industry from injury against the need to ensure that competition in the common market is not distorted. Moreover, in order to satisfy the requirements of Article 190 of the Treaty, the institutions must explain in regulations imposing antidumping duties how they decided on the weight to be given to the various factors involved.
46.
I accept that the institutions cannot be expected in dumping cases to examine issues relating to the Community's competition policy as fully as would be expected in the context of proceedings under Regulation No 17. According to Article 7(9)(a) of the basic regulation, antidumping investigations should normally be concluded within one year of the initiation of the proceeding. This would in many cases be impossible if the institutions were to be required to investigate fully any competition matters raised during the investigation. It does not by any means follow, however, that the Commission may completely disregard considerations of competition policy in dumping cases.
47.
It may be noted that the Commission is better placed to consider the competition aspects of dumping investigations than the authorities of some States, where responsibility for the enforcement of competition law and the investigation of dumping complaints is entrusted to different bodies. It is true that Article 8(1) of the basic regulation and Article 20(1) of Regulation No 17 limit the extent to which the Commission may use certain information acquired by it other than for the purpose for which it was supplied, but these provisions do not prevent officials of the relevant Directorates General from consulting each other in appropriate cases before action is taken.
48.
I therefore consider that the institutions must in appropriate cases take reasonable account of the implications for the Community's competition policy of the imposition of antidumping duties. Where this exercise is performed, it will doubtless be rare for the Court to interfere with the balance struck by the Commission and the Council. However, although the Commission claimed at the hearing that consultation between the competent Directorates General did in fact take place prior to the adoption of the contested regulation, there is no evidence that the institutions made any serious attempt to perform the balancing exercise required of them. I therefore take the view that the Court has no alternative but to intervene.
49.
My conclusion on this point would not be affected if the applicant's complaint were to be rejected by the Conseil de la Concurrence. The Conseil is not in a position to consider the effect of the imposition of an antidumping duty on competition in the common market. The proper balance to be struck between the Community's competition policy and its commercial policy is clearly a matter which can only be dealt with satisfactorily by the Community institutions. Indeed, even a decision by the Commission under Regulation No 17 to the effect that Péchiney's behaviour was compatible with Article 86 would not in my view have been enough to dispose of the matter, for consideration would still need to have been given to the effect of the imposition of a duty on competition in the common market.
Conclusion
50.
In conclusion, I consider that the Council gave inadequate consideration to the applicant's claim that the injury of which Péchiney complained was self-inflicted. I also consider that the Council failed to give proper consideration to the question whether the imposition of a duty was consistent with the need to avoid the distortion of competition in the common market. In so far as it it fails to address these matters, the preamble to the contested regulation is in any event insufficient to satisfy the requirements of Article 190 of the Treaty.
51.
I am therefore of the opinion that:
(1)
the contested regulation should be declared void;
(2)
the Council should be ordered to pay the costs, including the costs of the application for interim measures and of the objection of inadmissibility, with the exception of the costs of the interveners, who should pay their own costs.
( *1 ) Language of the case: French.
( 1 ) See e. g. Council Regulation No 3687/87, OJ 1987 L 346, p.27, on mercury originating in the Soviet Union; Commission Regulation No 1361/87, OJ 1987 L 129, p.5, on ferro-silico-calcium/calcium suicide originating in Brazil. Cf. Council Regulation No 3365/87, OJ 1987 L 322, p.l, relating to the same product
( 2 ) For some contributions to the debate from a European perspective, see Vandoren, ‘The interface between antidumping and competition law and policy in the European Community’ (1986) 2 LIEI 1; Temple Lang, ‘Reconciling European Community antitrust and antidumping, transport and trade safeguard policies-practical problems’ in Hawk (ed.), Annual Proceedings of the Fordham Corporate Law Institute (1988), Chapter 7; Kulms, ‘Competition, trade policy and competition policy in the EEC: the example of antidumping’ (1990) 27 CMLRev 285; Mendes, Antitrust in a World of Interrelated Economies (1991).
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