In Case C-175/87,
Matsushita Electric Industrial Co. Ltd, Osaka, Japan,
and
Matsushita Electric Trading Co. Ltd, Osaka, Japan, represented by David Vaughan QC, of the Inner Temple, and Ian Stewart Forrester, Advocate of the Scots Bar, assisted by Jacques Buhart, Conseil Juridique, Coudert Frères, Paris, and Takaaki Nagashima of Masunaga, Nagashima & Hashimoto, Tokyo, with an address for service in Luxembourg at the Chambers of Messrs Arendt and Harles, 4 Avenue Marie-Thérèse,
applicants,
v
Council of the European Communities, represented by Hans-Juergen Lambers, Director in its Legal Service, and Erik Stein, Legal Adviser, acting as Agents, assisted by Hans-Juergen Rabe and Michael Schuette, Rechtsanwaelte, Hamburg and Brussels, with an address for service in Luxembourg at the office of Joerg Kaeser, Manager of the Legal Directorate of the European Investment Bank, 100 Boulevard Konrad Adenauer, Kirchberg,
defendant,
supported by
Commission of the European Communities, represented by its Legal Adviser John Temple Lang, acting as Agent, with an address for service in Luxembourg at the office of Roberto Hayder, a representative of the Commission' s Legal Service, Wagner Centre, Kirchberg,
intervener,
and by
Committee of European Copier Manufacturers (CECOM), Cologne, represented by Dietrich Ehle and Volker Schiller, Rechtsanwaelte, Cologne, with an address for service in Luxembourg at the Chambers of Messrs Arendt and Harles, 4 Avenue Marie-Thérèse,
intervener,
APPLICATION for the annulment of Council Regulation (EEC) No 535/87 of 23 February 1987 imposing a definitive anti-dumping duty on imports of plain paper photocopiers originating in Japan (Official Journal 1987 L 54, p. 12), in so far as it affects the applicants,
THE COURT (Fifth Chamber),
composed of: R. Joliet, President of the Chamber, Sir Gordon Slynn, F. Grévisse, J.C. Moitinho de Almeida and M. Zuleeg, Judges,
Advocate General: J. Mischo,
Registrar: D. Louterman, Principal Administrator,
having regard to the Report for the Hearing,
after hearing oral argument from the parties at the hearing on 3 October 1990, at which the applicants were represented by David Vaughan QC, Ian Stewart Forrester QC, Charles Kaplan, Barrister-at-Law, and Jacques Buhart,
after hearing the Opinion of the Advocate General at the sitting on 13 December 1990,
gives the following
Judgment
1 By application lodged at the Court Registry on 9 June 1987, Matsushita Electric Industrial Co. Ltd (hereinafter referred to as "MEI") and Matsushita Electric Trading Co. Ltd (hereinafter referred to as "MET"), both members of the Matsushita group, whose registered offices are in Osaka, brought an action under the second paragraph of Article 173 of the EEC Treaty for the annulment of Council Regulation (EEC) No 535/87 of 23 February 1987 imposing a definitive anti-dumping duty on imports of plain paper photocopiers originating in Japan (Official Journal 1987 L 54, p. 12), hereinafter referred to as "the contested regulation", in so far as it affects the applicants.
2 MEI is divided into divisions each of which manufactures and sells a particular category of products. The manufacture and sale of plain paper photocopiers ("PPCs") is carried out by the Office Equipment Division (hereinafter referred to as "the OED"), assisted by the Industrial Sales Division and Industrial Sales Offices. In Japan the OED sells PPCs under the Panasonic brand name to 59 companies affiliated to MEI or to other companies in the Matsushita Group (hereinafter referred to as "related sales companies") which, acting as regional distributors, sell the PPCs to independent dealers.
3 MET is MEI' s trading affiliate and is responsible for the export of PPCs. In the Community the PPCs exported by MET are imported inter alia by Panasonic Deutschland GmbH, Panasonic UK Ltd and Panasonic Industrial UK Ltd, Panasonic France SA and Panasonic Belgium NV, which are wholly-owned subsidiaries of MET or MEI established in Germany, the United Kingdom, France and Belgium respectively.
4 As regards sales to original equipment manufacturers (companies supplying under their own brand name products manufactured by other undertakings, hereinafter referred to as "OEMs"), the applicants (hereinafter referred to as "Matsushita"), point out that during the period of the investigation no sales took place on the Japanese market. On the other hand, during that period Matsushita sold PPCs to the following OEMs in the Community: Roneo France, Roneo UK, Roneo Belgium and Olympia AG.
5 In July 1985 Matsushita, together with other Japanese manufacturers, was the subject of a complaint lodged with the Commission by the Committee of European Copier Manufacturers (CECOM), which accused it of dumping its products in the Community.
6 The anti-dumping procedure initiated by the Commission on the basis of Council Regulation (EEC) No 2176/84 of 23 July 1984 on protection against dumped or subsidized imports from countries not members of the European Economic Community (Official Journal 1984 L 201, p. 1) resulted in the adoption of Commission Regulation (EEC) No 2640/86 of 21 August 1986 imposing a provisional anti-dumping duty on imports of plain paper photocopiers originating in Japan (Official Journal 1986 L 239, p. 5). The rate of the provisional anti-dumping duty was fixed at 15.8% of the net free-at-Community-frontier price in the case of imports of PPCs manufactured and exported by Matsushita. By the contested regulation, which was adopted on a proposal from the Commission, the Council subsequently fixed the definitive anti-dumping duty at 20%.
7 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the course of the procedure and the submissions and arguments of the parties, which are mentioned or referred to hereinafter only in so far as is necessary for the reasoning of the Court.
8 In support of its action Matsushita relies upon several pleas in law, alleging variously miscalculation of the normal value, incorrect comparison of the normal value and the export price, illegality of Article 2(10)(c) of Regulation No 2176/84 on the ground of incompatibility with the 1979 Anti-Dumping Code, incorrect evaluation of the injury suffered by the Community industry, incorrect appraisal of the interests of the Community, miscalculation of the anti-dumping duty and breach of the duty to state reasons.
The plea in law alleging miscalculation of the normal value
9 Matsushita maintains, in the first place, that the institutions infringed Article 2(3) and (7) of Regulation No 2176/84 and committed a manifest error of assessment when they determined normal value on the basis, not of the prices charged by MEI to the 59 related sales companies through which it markets its products in Japan, but of the prices invoiced by those companies to independent dealers.
10 In that connection Matsushita claims, first, that in so far as the institutions took the view that the sales between MEI and related sales companies were not made in the ordinary course of trade, they should, in accordance with Article 2(3)(b) of Regulation No 2176/84, have constructed the normal value by adding the costs and the selling, general and administrative expenses incurred by MEI and a reasonable profit margin for MEI. It then claims that, by treating MEI and the related sales companies as forming a single economic entity, the institutions overlooked, first, the specific character of Matsushita' s marketing organization, in particular the important role assumed in sales by the OED, assisted by the Industrial Sales Division and the Industrial Sales Offices; secondly, the difference between the functions performed by the related sales companies and the internal sales departments; and, lastly, the difference between the expenses borne by those companies and those borne by MEI itself, which the institutions wrongly included in the normal value.
11 As regards determination of the normal value on the basis of the prices of the related sales companies, it should be noted that, according to the documents before the Court, Matsushita has financial control of those companies which market its products in Japan and entrusts to them tasks which are normally the responsibility of an internal sales department of the manufacturing organization.
12 As the Court has already held, in particular in its judgment in Case 250/85 Brother v Council [1988] ECR 5683, at paragraph 16, the division of production and sales activities within a group made up of legally distinct companies can in no way alter the fact that the group is a single economic entity which organizes in that way activities that, in other cases, are carried on by what is in legal terms as well a single entity.
13 Matsushita' s arguments whereby it seeks to show that Matsushita and its related sales companies should not be treated as forming a single economic entity cannot be accepted.
14 The assessment which led the institutions to find in this case that there was a single economic entity cannot be altered by the fact that a number of sales functions could have been carried out by the manufacturer itself. The institutions are entitled to find that the manufacturer, together with one or more distribution companies which it controls, forms an economic entity even though it performs certain sales functions itself. Furthermore, it is clear from the documents before the Court that those functions, which were performed in this case principally by MEI' s Office Equipment Division (OED), are merely complementary to those performed by the related sales companies, since no sale to independent customers was made by MEI itself.
15 It follows from the foregoing that all those companies' expenses - and likewise MEI' s - incurred in marketing PPCs on the domestic market, which would obviously be included in the selling price if the marketing was carried out by an internal sales department of the manufacturer, must be included in the normal value.
16 In those circumstances, the fact that the institutions took the prices paid by the first buyer who was independent of the related sales companies is justified, given that those prices may quite properly be regarded as the prices actually paid or payable in the ordinary course of trade within the meaning of Article 2(3)(a) of Regulation No 2176/84.
17 It should be recalled in this connection that, as the Court held in Joined Cases 277 and 300/85 Canon v Council [1988] ECR 5731, at paragraph 11, it is to those prices that regard must primarily be had in order to establish the normal value, the other possibilities indicated in Article 2(3)(b)(i) and (ii) being merely subsidiary. It must therefore be held that in this case there was no need for the Council to construct the normal value.
18 Secondly, Matsushita maintains that when calculating the normal value the institutions infringed Article 2(3)(a) of Regulation No 2176/84 by increasing the price invoiced by the related sales companies by the value of the main unit trade-in discount granted by those companies to dealers, whereas it was in fact an ordinary discount.
19 Matsushita stresses that the discount is granted to dealers without any evidence of a trade-in being required or any check being carried out that a trade-in took place. The discount is therefore given regardless whether an old PPC is traded-in or removed from the market. Matsushita adds that the Council has not demonstrated that the discount is referable to a value given by dealers to Matsushita or to the related sales companies.
20 In this respect it should be noted, first, that it appears from the oral argument before the Court that in this case 90% of the discounts granted corresponded to the trading-in of used machines.
21 Secondly, according to paragraph 13 of the preamble to the contested regulation, the trade-in discount granted for a traded-in machine to the buyer of a new machine corresponds to the benefit the producers obtain from the removal of traded-in machines from the market and the resultant lack of a second-hand market for PPCs in Japan. According to the Council, "the demand for new machines is maintained at the highest possible level with prices consequently also being held at higher levels than would have been the case had a second-hand market existed" and "this higher demand not only stimulates prices but also higher production levels which should normally result in increased economies of scale and commensurately higher profit levels".
22 In those circumstances the discounts in question, which correspond to the value which the manufacturer attaches to withdrawal of the used PPCs from the market, must be regarded as part of the price actually paid or payable by the buyer and should, therefore, be taken into consideration in order to determine the normal value in accordance with Article 2(3) of Regulation No 2176/84.
23 Matsushita adds, however, that the Council committed a manifest error of assessment when it determined the value of the main unit trade-in discount by taking a weighted average of the value of the main unit trade-in discount granted by Osaka N.O.A. and the value of both the main unit trade-in discount and the main unit discount granted to unrelated dealers by the other related sales companies. Only the value of the main unit trade-in discount calculated on the basis of the sales made by Osaka N.O.A. should have been taken into account, on the ground that only that discount represented the value to Matsushita of the removal from the market of traded-in machines.
24 That argument cannot be accepted. As far as the related sales companies other than Osaka N.O.A. are concerned, the Council had no evidence enabling it to distinguish between the two discounts in question. Moreover, the figures relating to Osaka N.O.A. were not representative, since that company' s sales amounted only to approximately 22.5% of the total sales made during the period of the investigation.
25 Matsushita claims, thirdly, that the institutions infringed Article 2(3)(b)(ii) of Regulation No 2176/84, inasmuch as the amount for selling, administrative and other general expenses included in the constructed normal value relating to sales to OEMs was unreasonable.
26 In that connection Matsushita maintains, in particular, that it is clear from the evidence produced by it and by the OEM importers that the Council should not have included in the computation of the constructed normal value costs such as (a) selling, administrative and other general expenses of the related sales companies, in view of the fact that if OEM sales had taken place on the Japanese market they would not have been made through those companies; (b) advertising and promotion expenses borne by Matsushita for sales of PPCs bearing its own brand name, which it would not have borne in the case of sales to OEMs; and, finally, (c) the value of the main unit trade-in discount, which Matsushita would not have granted to OEM buyers in order to enable them to effect trade-ins if sales to OEMs had taken place on the domestic market.
27 Matsushita maintains further that the adjustment made by the Council by applying in the case of OEMs to the constructed normal value a profit margin of 5%, which was lower than the rate of 14.6% applied to sales made under the manufacturer' s brand name, is inadequate and insufficient to cover the cost differences between OEM sales and sales of PPCs bearing Matsushita' s own brand name.
28 In order to prove that if OEM sales had taken place on the Japanese market they would not have been made through its sales companies, Matsushita produced two agreements between MEI and OEM customers.
29 On this latter point it must be held that the institutions were right not to take those agreements into consideration, since Matsushita revealed neither the identity of the OEM buyers nor the nature of the products in question and consequently the significance - if any - of the agreements could not be evaluated.
30 In respect of the argument that if OEM sales had taken place on the Japanese market the related sales companies would not have been involved, it should be borne in mind that in the light of the considerations set out above those companies performed the functions of an internal sales department of the manufacturing organization and thus the selling, administrative and other general expenses of those companies had to be included in the normal value.
31 With regard to the evidence submitted by Matsushita concerning advertising and promotion expenses, it should be noted that that evidence concerned only OEM sales on the Community market.
32 It emerges from the case-law of the Court (see in particular the judgment in Case 250/85 Brother v Council cited above, at paragraph 18) that the purpose of constructing the normal value is to determine the selling price of a product as it would be if that product were sold in its country of origin or in the exporting country and consequently it is the expenses relating to sales on the domestic market which must be taken into account, even if that product is not sold there but is sold for export. Accordingly it must be held that the institutions were right to refuse to use data relating to a market other than the domestic market of the country of origin or exporting country.
33 As regards the main unit trade-in discount, it is sufficient to observe that, as Matsushita states, this discount would not have been granted to OEMs if sales to them had taken place on the domestic market and accordingly the price would have been commensurately higher. Consequently it was correct to include that discount in the normal value.
34 It should lastly be recalled, as regards the argument that the profit margin of 5% taken into account in calculating the constructed normal value for sales to OEMs is insufficient, that in ruling on a similar plea in law, also seeking the annulment of Regulation No 535/87, the Court held in the judgment in Joined Cases C-133/87 and C-150/87 Nashua Corporation v Commission and Council [1990] ECR 719, at paragraph 33, that the institutions had taken into consideration the difference between the costs and profits associated with sales to OEMs and the equivalent figures for other sales. However, because the institutions had found it impossible to gauge that difference accurately, in constructing the normal value of products sold to OEMs they set the profit margin at 5% instead of its average rate, estimated at 14.6%, applied to sales under the manufacturers' own brand names.
35 It follows from all the foregoing considerations that the plea in law alleging miscalculation of the normal value must be rejected.
The plea in law alleging that the comparison of the normal value and the export price was incorrect
36 Matsushita claims, in a plea in law subsidiary to its first ground of annulment, that the Council infringed Article 2(9) and (10) of Regulation No 2176/84 in so far as it did not grant additional allowances in respect of the normal value to take account of differences in levels of trade after the other allowances had been made in accordance with Article 2(10).
37 It argues that the differences result from the fact that the export price comprised the costs incurred by Matsushita in making PPCs available to importers at its premises, whereas the normal value included not only the expenses incurred by Matsushita in selling to related sales companies but in addition the costs incurred in making PPCs available to dealers at the related sales companies' premises. In those circumstances the Council drew a false comparison between an export price established at the ex-factory level and a normal value established at the regional distributor level.
38 It must be observed on this point that the normal value and the export price were both established on the basis of the price at which the product was first sold to an independent customer.
39 It should further be emphasized that Matsushita has not produced evidence that the sales on the basis of which the normal value and export prices were determined related to different categories of purchasers and consequently took place at different levels of trade so as to justify the allowances claimed. Thus the institutions were not bound to grant them.
40 The plea in law alleging that the comparison of the normal value and the export price was incorrect must therefore be rejected.
The plea in law alleging that Article 2(10)(c) of Regulation No 2176/84 is incompatible with the 1979 GATT Anti-Dumping Code
41 Matsushita maintains that if Article 2(10)(c) of Regulation No 2176/84 should be interpreted as entitling the Council to refuse to make allowances even though the normal value and the export price are not comparable as regards the level of trade, then Article 2(10)(c) is incompatible with Article 2(6) of the 1979 Anti-Dumping Code, which requires the comparison between those two factors to be made at the same level of trade.
42 In that connection it is sufficient to observe that Article 2(10)(c) is not to be interpreted as entitling the institutions to refuse to make allowances to take account of differences in the level of trade as required by the Anti-Dumping Code. However, Matsushita has not proved that the normal value and the export price were not compared at the same level of trade.
43 The submission alleging that Article 2(10)(c) of Regulation No 2176/84 is incompatible with the 1979 GATT Anti-Dumping Code must therefore be rejected.
The pleas in law alleging that the injury suffered by the Community industry was inaccurately assessed
A - Incorrect assessment of the similarity between PPCs
44 It must be observed in limine that the institutions concluded that all PPCs, at least those falling within adjoining segments, from the personal copier to segment 5 in the Dataquest classification, should be regarded as like products; segment 6 machines, for which there was no Community production, were excluded from the investigation (paragraph 31 of the preamble to the contested regulation).
45 It must be observed in this connection that, according to the Info-Markt and Dataquest PPC classifications referred to by the institutions in this case, the PPC market comprises different segments defined on the basis of the technical features and performance of the machines in question. As paragraph 31 of the preamble to the contested regulation indicates, however, in the reference period Japanese manufacturers exported PPCs falling solely within the personal copier segment and segments 1 to 4.
46 Matsushita maintains that the institutions wrongly ignored the segmentation of the PPC market and regarded all machines as like products within the meaning of Article 2(12) of Regulation No 2176/84. In order to demonstrate the absence of similarity between PPCs in adjoining segments Matsushita points out that the buyer of a PPC in segment 1 would not buy a personal PPC, on the ground that the cost per photocopy and its relative utility would diminish as copy volume increased.
47 Matsushita claims, moreover, that there is no similarity between the PPCs in the so-called non-adjoining segments. In this connection it refers, first, to Commission Decision 88/88/EEC of 22 December 1987 relating to the Canon-Olivetti joint venture (Official Journal 1988 L 52, p. 51), according to which PPCs are split into three distinct markets, namely low-end PPCs (extending from personal copiers to segment 2 of the Dataquest classification), mid-end PPCs (segments 3 and 4) and high-end PPCs (segments 4 to 6). It goes on to argue that the segmentation of the market thus accepted by the Commission is a result of competition between PPCs within individual segments, which is much stronger than that between PPCs in different segments.
48 It must be pointed out in this connection that, according to Article 4(1) of Regulation No 2176/84, "a determination of injury shall be made only if the dumped or subsidized imports are, through the effects of dumping or subsidization, causing injury i.e., causing or threatening to cause material injury to an established Community industry or materially retarding the establishment of such an industry". Article 4(4) provides that "the effect of the dumped or subsidized imports shall be assessed in relation to the Community production of the like product (...)". Furthermore, Article 2(12) of Regulation No 2176/84 provides that "' like product' means 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".
49 On the basis of the market surveys carried out by Info-Market and Dataquest, the institutions concluded that, although all PPCs were not like products, at least PPCs in adjoining segments, from the personal copier to copiers in segment 5 of the Dataquest classification, should be regarded as such. It appears from the documents before the Court that in the said surveys the segments were not clearly delimited inasmuch as, on the one hand, some PPCs can be classified in several different segments in view of certain of their characteristics and technical features and, on the other hand, there is competition between PPCs in adjoining segments and between PPCs classified in the various segments referred to above.
50 The differences in point of, inter alia, speed and copy volume between PPCs falling within one or various segments are not sufficient to establish that those PPCs do not have identical functions or do not satisfy the same needs. Moreover, as the third subparagraph of paragraph 30 of the preamble to the contested regulation indicates, the fact that customers' choice may be made on the basis of factors relating in particular to the decision to centralize or decentralize their photocopying facilities confirms that there is competition between machines in different categories.
51 It must be emphasized that, in view of the overlapping between the various segments mentioned above, copying speed cannot be used as a distinguishing factor as between PPCs. It is apparent from the documents before the Court inter alia that PPCs which produce between 40 and 45 copies per minute may belong either to segment 3 (from 31 to 45 copies) or to segment 4 (from 40 to 75 copies). The same applies to personal photocopiers which produce up to 12 copies per minute whereas copiers in segments 1a and 1b produce up to 20 and 15 to 20 copies per minute respectively.
52 With regard to Matsushita' s argument concerning the definition of the markets in question as given in Decision 88/88/EEC cited above, it must be acknowledged, together with the Commission, that that definition is not inconsistent with there being some substitutability between PPCs in the three segments in question or with that substitutability' s being of a lesser order than that between PPCs in the same segment. It is clear from the foregoing considerations that the segments defined in that decision, like those in the Dataquest and Info-Markt classifications, are not reflected in distinct markets.
53 In view of the above, it must be held that Matsushita has not established that the institutions made an error of assessment by considering that in this case "Community production of the like product" within the meaning of Article 4(4) of Regulation No 2176/84 was production of all PPCs, in all segments merged together.
54 The plea in law alleging that the similarity of the products was incorrectly assessed must therefore be rejected.
B - The erroneous definition of the Community industry
55 Matsushita claims that in view of the numerous imports from Japan by Rank Xerox, Océ and Olivetti, the institutions should not have included those companies in the number of producers making up the "Community industry" within the meaning of Article 4(5) of Regulation No 2176/84, thus altering the position which the institutions had adopted in several previous cases. In Matsushita' s view, no Community undertaking was in a position to allege that it had suffered injury as a result of imports of small photocopiers from Japan. In any event, European production in this field was low or non-existent.
56 With regard to Rank Xerox, Matsushita points out, first, that that undertaking is a 50% shareholder in Fuji Xerox, a Japanese company from which it procured large quantities of completely finished PPCs bearing the Rank Xerox label, "kits" and components and, in addition, technical and design assistance. By purchasing PPCs from Fuji Xerox under those conditions Rank Xerox was enabled both to make a profit and influence the transfer price of the machines in question. As a result, the inclusion of Rank Xerox in the category of Community producers could only distort the assessment of the alleged injury.
57 It should be noted in this connection that when the same argument was relied on by the applicant in Case C-156/87 Gestetner, cited above, the Court pointed out at paragraph 57 that, with regard to imports of PPCs supplied by Fuji Xerox from Japan, the institutions took the view that Rank Xerox had not produced evidence that it had been led to buy the machines on grounds of self-protection. According to the information obtained the decision was a management decision taken by the Xerox group of companies. However, the volume of those imports was minimal in relation to the entire range of PPCs produced by Rank Xerox within the Community and in relation to the Community market as a whole (1%), and the resale prices were the same as the prices of equivalent machines produced by Rank Xerox.
58 Matsushita then complains that Rank Xerox' s production was counted as part of Community production whereas part of its operations consisted in reality of assembling or producing machines in the Community from parts or materials originating in Japan. It states in this connection that Article 13(10), which was added to Regulation No 2176/84 by Regulation (EEC) No 1761/87 of 22 June 1987 (Official Journal 1987 L 167, p. 9), the "screwdriver regulation", provides for the possibility of imposing anti-dumping duties in this type of situation. It considers that by bringing only companies established in Japan within the scope of that provision whilst counting companies established in the Community which carry out the same "screwdriver" activities as Community producers, the institutions are treating similar cases dissimilarly.
59 That argument cannot be accepted. Article 13(10) of Regulation No 2176/84 was introduced after the contested regulation was adopted and is concerned with the imposition of anti-dumping duty on products assembled or produced in the Community from parts or materials originating in the exporting country or countries in question, not with the definition of Community production.
60 With regard to Océ and Olivetti, which also import PPCs from Japan, but from unrelated suppliers, Matsushita claims that their imports represented 35 to 40% of their sales and machine rentals in the EEC and that they should therefore also have been excluded from the Community industry.
61 That argument cannot be accepted. As the Court held in its judgment in Case C-156/87 Gestetner, at paragraph 47, Olivetti and Océ imported PPCs from Japan so as to be able to offer their customers a full range of models. Those PPCs, falling within segments 1 and 2, were sold at higher prices than those charged by their suppliers and accounted for between 35 and 40% of sales and rentals of new machines placed on the market over the period from 1981 to July 1985. The attempts of both producers to develop and market a full range of models failed, however, because of the depressed market prices imposed by Japanese imports.
62 Nor can Matsushita' s argument based on the institutions' previous practice be accepted. As the Court held in Gestetner, at paragraph 43, in applying Article 4 of Regulation No 2176/84 it is for the institutions, in the exercise of their discretion, to determine whether they should exclude from the "Community industry" producers which are related to exporters or importers or are themselves importers of the dumped product. The discretion must be exercised on a case-by-case basis, by reference to all the relevant facts.
63 It must be held that, according to the documents before the Court and the oral argument at the hearing, it was in the exercise of such discretion that a Community producer was excluded from or included in the Community industry in each of the cases referred to by the applicants.
64 Finally, as regards Matsushita' s argument that Community production of small photocopiers is low or non-existent, it is sufficient to observe that in this case the institutions were right to regard as like products all PPCs in adjoining segments, from the personal photocopier to copiers in segment 5 of the Dataquest classification, and that therefore Community production in the field of small photocopiers alone could not be taken into account for the purposes of defining the Community industry.
65 In view of the foregoing the plea in law alleging that the Community industry was wrongly defined is unfounded and must therefore be rejected.
C - The erroneous assessment of the factors making up the injury
66 Matsushita contests both the analysis of the various factors which was carried out by the institutions in order to evaluate the injury suffered by the Community industry and the very existence of the injury thus defined, which, in Matsushita' s view, resulted not from the imports in question but from the policy followed by Community undertakings and the inferiority of their machines compared with Japanese PPCs.
67 In this respect reference should be made to the provisions of Regulation No 2176/84 which set out the methods for determining injury, in particular Article 4(1). According to that provision, first, there is no injury unless the dumped imports are, through the effects of dumping, causing or threatening to cause material injury to an established Community industry and, secondly, injuries caused by other factors must not be attributed to the dumped imports.
68 Article 4(2) of Regulation No 2176/84 lists the factors which must be examined to establish injury, namely (a) the volume of dumped imports, (b) the prices of dumped imports and (c) their impact on the industry concerned. The same provision specifies, however, that no one or several of those factors can necessarily give decisive guidance.
69 It is therefore in the exercise of their discretion that the institutions are called upon to analyse the said factors and to use such of the assessment factors listed for that purpose in Article 4(2) as they deem to be relevant in each particular case. In the present case the institutions carried out a detailed examination of the factors mentioned in Article 4(2).
70 As regards the volume of Japanese exports it must be observed that although sales and rentals of new machines manufactured by Community producers increased by 74% between 1981 and 1984, their share of the market fell from 21% in 1981 to 11% in the course of the reference period, whereas the share of the Community market held by Japanese producers rose from 70 to 78% over the same period. The institutions were therefore entitled to consider that Japanese imports, which increased by more than 120% between 1981 and 1984, prevented a more favourable development of PPC sales and rentals by Community undertakings.
71 With regard to price undercutting on the imported products, it is sufficient to point out that, despite the extra features and performance of PPCs manufactured in Japan in relation to comparable PPCs manufactured in the Community, their prices were same as or, indeed, lower than the prices of Community manufacturers' PPCs (paragraphs 44, 47 and 49 of the preamble to the contested regulation).
72 As far as the impact of the low-priced imports on the industry in question is concerned, it should be noted that besides the appreciable reduction in Community manufacturers' market share as mentioned above, the profitability of the Community manufacturers concerned also fell in the course of the reference period.
73 On this point it should be emphasized that the institutions were not, as Matsushita claims, obliged to take into consideration the profits or losses made by Community producers on their activities in the photocopier sector as a whole. In accordance with Article 4(4) of Regulation No 2176/84 the effect of the dumped imports must be assessed in relation to the Community production of the like product. Consequently, the Council was right to assess the effect of Japanese imports on the profitability of Community producers by reference to Community production as defined above.
74 Matsushita further alleges that the development of the European photocopier market shows that the institutions wrongly attributed to the imports in question injury resulting from other factors, in particular from the decision by Community undertakings not to manufacture small photocopiers owing to the costs and technological difficulties which development of new models of small photocopiers would have involved.
75 That argument cannot be accepted. Thus, in the case of Rank Xerox, the Council explains in paragraph 85 of the preamble to the contested regulation that in 1982/1983 difficulties experienced by that company in developing a new model were resolved and a new model was in fact launched on the market. Consequently, the Council did not make any error of assessment when it considered that such difficulties did not have any effect on the injury otherwise caused to Rank Xerox as a result of imports from Japan.
76 With regard to Océ and Olivetti, it should be borne in mind, as mentioned above (paragraph 61), that those two producers' attempts to develop and launch on the market a complete range of models failed as a result of depressed market prices brought about by Japanese imports.
77 Finally, as regards the argument concerning the alleged superiority of the Japanese PPCs, the range of their machines and their quality and reliability, it must be pointed out that no evidence to this effect has been produced.
78 In the light of the foregoing, the plea in law alleging that the factors making up the injury were wrongly assessed must be rejected.
The plea in law alleging erroneous appraisal of the interests of the Community
79 Matsushita maintains that the appraisal of the interests of the Community was vitiated by the fact that Rank Xerox, Océ and Olivetti, which were dependent on and benefited from Japanese imports, were regarded as belonging to the number of manufacturers making up the Community industry, and that the institutions did not set their interest against that of the OEM importers such as Gestetner, Agfa-Gevaert and others. In this connection it claims that Rank Xerox, Océ and Olivetti held, together with Tetras, only 3% of the Community market for small photocopiers, whereas the abovementioned OEM importers, which employed a very large number of people, were very active in the field of small photocopiers.
80 Matsushita considers that, in view of the very limited Community production and the very narrow range of products offered in the field of small photocopiers, the institutions' appraisal of whether the interests of the Community called for Community intervention was incorrect in so far as in deciding to protect manufacturers of a very small quantity of products it did not take account of the consequences which would ensue.
81 It should be borne in mind that, as the Court held in its judgment in C-156/87 Gestetner, at paragraph 63, the question whether the interests of the Community call for Community intervention involves appraisal of complex economic situations and judicial review of such an appraisal must be 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.
82 It must be pointed out in this connection that, according to the institutions, in the absence of anti-dumping duties it would be doubtful whether an independent Community PPC industry could survive although it is necessary in order to maintain and develop the techniques required in manufacturing reprographic equipment and in order to preserve a large number of jobs. That concern arose in particular from the take-over, in the course of the investigation, of the business of one of the Community producers by a Japanese manufacturer. The institutions therefore took the view that the need to protect Community industry was more important than the need to protect the immediate interests of consumers, as is explained in paragraph 99 of the preamble to the contested regulation, and the need to protect importers.
83 Since the institutions did not commit any obvious error in their appraisal of the interests of the Community, the plea in law on this point must be rejected.
The plea in law alleging miscalculation of the anti-dumping duty
84 Finally, Matsushita claims that in fixing the definitive anti-dumping duties at 20% of the net free-at-Community-frontier price the institutions were in breach of Article 13(3) of Regulation No 2176/84, according to which the amount of such duties may not exceed that which is necessary to remove the injury.
85 In this connection Matsushita states, first, that the Commission was wrong to consider that a profit margin of 12% was necessary to ensure a reasonable profit or return on the sale of photocopiers. That margin is obviously excessive, in its view, given that small photocopiers are always sold at a profit lower than that on total PPC sales operations. Matsushita goes on to observe that the duty was calculated so as to eliminate price-undercutting, which, for the reasons already given, did not in fact exist. Finally, Matsushita considers that the explanation of the method of calculation of the duty which is contained in paragraph 107 of the preamble to contested regulation is unclear.
86 With regard to the argument that the profit margin of 12% is excessive, it should be noted that according to paragraph 103 of the preamble to the contested regulation the rate chosen was intended to allow the Community producers as whole a reasonable return commensurate with the risk represented by investing in the development of new products. In this regard the institutions considered it inappropriate to take into account profits made on supplies or other operations relating to photocopiers.
87 It appears neither from the documents before the Court nor from the argument at the hearing that the institutions exercised their discretion incorrectly. Moreover, Matsushita has not established the extent to which a lower margin for small photocopiers would have affected the amount of the anti-dumping duty imposed.
88 The argument to the effect that the price-undercutting to be eliminated by the duty did not exist cannot be accepted. As paragraph 110 of the preamble to the contested regulation indicates, Japanese exporters undoubtedly did practise a certain form of price-undercutting (paragraph 71) but in view of the impossibility of quantifying it, no element was included in the calculations of the anti-dumping duty with a view to taking it into account.
89 Finally, with regard to the description of the method of calculating the duty, it is sufficient to observe that paragraph 107 of the preamble to the contested regulation describes in detail all the institutions' calculations, and that Matsushita has not explained why the calculations were incomprehensible.
90 In view of the foregoing considerations, the plea in law alleging miscalculation of the anti-dumping duty must be rejected.
Pleas in law concerning the statement of reasons in the contested decision
91 Matsushita considers that the Council has failed to fulfil its obligation under Article 190 of the EEC Treaty inasmuch as the reasons given in respect of the determination of the normal value are insufficient, if not non-existent. Thus, in the first place, its decision to regard the related companies as forming part of Matsushita' s corporate structure for the purpose of calculating the normal value cannot justify the Council' s failure to apply the provisions laid down in Article 2(3) and (7) of Regulation No 2176/84; secondly, its decision to include the main unit trade-in discount in the normal value cannot be justified on the ground that Matsushita perhaps unintentionally benefited from the advantage of the absence of a second-hand market; thirdly, no reasons were given for the Council' s decision to include certain costs and the value of the main unit trade-in discount in the constructed normal value for sales to OEMs.
92 The first argument must be rejected on the ground that the Council rightly considered that Matsushita and its sales companies constituted a single economic entity. Furthermore, the requirement laid down in Article 190 that reasons must be stated was satisfied by the reasons set out in paragraph 7 of the preamble to Regulation No 2640/86, as confirmed in paragraph 6 of the preamble to the contested regulation, which indicate clearly the reasons why the institutions used the prices charged to independent purchasers in order to determine the normal value and refused to apply Article 2(7) of Regulation No 2176/84.
93 The same is true with regard to Matsushita' s second argument. Paragraph 13 of the preamble to the contested regulation makes it clear that in this case the absence of a second-hand market shows that in the great majority of cases the machines traded-in were withdrawn from the market and consequently Matsushita thus enjoyed the same benefits as the other producers.
94 Finally, with regard to the third argument, it appears from Paragraph 11 of the preamble to the contested regulation that, since no sales to OEMs took place on the Japanese market and it was not possible accurately to assess the differences between the cost and profit associated with sales to OEMs and the equivalent figures for other sales, the institutions set the profit margin at 5% in constructing the normal value of products sold to OEMs.
95 In view of the foregoing considerations the pleas in law concerning the statement of reasons in the contested regulation must be rejected and consequently the application must be dismissed in its entirety.
Costs
96 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. Since the applicants have failed in their submissions, they must be ordered to pay the costs, including the costs of the intervener CECOM which has asked for them in its pleadings. The Commission shall bear its own costs in accordance with Article 69(4) of the Rules of Procedure.
On those grounds,
THE COURT (Fifth Chamber)
hereby:
1. Dismisses the application;
2. Orders the applicants to pay the costs, including those incurred by the intervener CECOM.
