Gao Yao (Hong-Kong) Hua Fa Industrial Co. Ltd v Council of the European Union (C-75/92)

Contents

Judgment of the Court (Sixth Chamber)7 July 1994^noteIn Case C-75/92,Gao Yao (Hong Kong) Hua Fa Industrial Co. Ltd, established in Hong Kong, represented by Paul Lippens de Cerf, of the Brussels Bar, and Charles-Etienne Gudin, of the Paris and Brussels Bars, with an address for service in Luxembourg at the Chambers of René Faltz and Patrick Weinacht, 6 Rue Heine,vCouncil of the European Union, represented by Ramon Torrent, Legal Adviser, and Jorge Monteiro, of its Legal Service, acting as Agents, assisted by Bernard Spinoit and Anne Wese, of the Charleroi Bar, with an address for service in Luxembourg at the office of Bruno Eynard, Director of the Legal Affairs Department at the European Investment Bank, 100 Boulevard Konrad Adenauer,Commission of the European Communities, represented by Eric White, of its Legal Service, acting as Agent, assisted by Claus-Michael Happe, a national official on secondment to the Legal Service of the Commission, with an address for service in Luxembourg at the office of Georgios Kremlis, of its Legal Service, Wagner Centre, Kirchberg,andFederation Européenne des Fabricants de Briquets ASBL (European Federation of Lighter Manufacturers), established in Brussels, represented by Vincent Effinier, of the Namur Bar, with an address for service in Luxembourg at the Chambers of Charles Kaufhold, 7 Côte d'Eich,interveners,THE COURT (Sixth Chamber),composed of: G. F. Mancini, President of the Chamber, M Diez de Velasco (Rapporteur), C. N. Kakouris, F. A. Schockweiler and P. J. G. Kapteyn, Judges,Advocate General: C. O. Lenz,Registrar: H. A. Rühi, Principal Administrator,having regard to the Report for the Hearing,after hearing oral argument from the parties at the hearing on 20 January 1994,after hearing the Opinion of the Advocate General at the sitting on 16 March 1994,gives the following

Judgment

1By application lodged at the Court Registry on 11 March 1992, Gao Yao (Hong Kong) Hua Fa Industrial Co. Ltd, which is established in Hong Kong (hereinafter ‘Gao Yao Hong Kong'), brought an action pursuant to the second paragraph of Article 173 of the EEC Treaty seeking the annulment of Articles 1, 2 and 3 of Council Regulation (EEC) No 3433/91 of 25 November 1991 imposing a definitive antidumping duty on imports of gas-fuelled, non-refillable pocket flint lighters originating in Japan, the People's Republic of China, the Republic of Korea and Thailand and definitively collecting the provisional antidumping duty (OJ 1991 L 326, p. 1), in so far as they relate to that company.

2Gao Yao Hong Kong is a company which was established on 22 April 1987 and which is governed by Hong Kong law. An extract from the Register of Companies of Hong Kong kept under the Companies Ordinance shows that it is registered under No 189024 in that register. The extract is accompanied by the minutes of a board meeting of 9 December 1988.

3In November 1989 a complaint was lodged by the European Federation of Lighter Manufacturers asking for an antidumping proceeding to be initiated with respect to imports into the Community of gas-fuelled, non-refillable pocket flint lighters originating in the People's Republic of China, the Republic of Korea and Thailand. The complaint identified as one of the producers Gao Yao, an undertaking established in the People's Republic of China (hereinafter ’Gao Yao China').

4On 7 April 1990 the Commission announced the initiation of a proceeding, as provided for in Council Regulation (EEC) No 2423/88 of 11 July 1988 on protection against dumped or subsidized imports from countries not members of the European Economic Community (OJ 1988 L 209, p. 1). In the notice of initiation of the proceeding (OJ 1990 C 89, p. 3) the Commission invited interested parties to make known their views, in particular by replying to the antidumping questionnaire. One of the questionnaires was sent to Gao Yao Hua Fa Industrial, Guangdong, People's Republic of China.

5On 25 May 1990 the Commission received a reply to the questionnaire in which the aforesaid undertaking gave information on its structure and activities. It also stated its address (Guangdong Province, Zhaoging City, Gao Yao County, Jing Dao, People's Republic of China) and specified that it had a ‘sales office’at Hillwood Road, Tsim Sha Tsui, Kowloon, Hong Kong. The reply to the questionnaire asked for correspondence to be directed for ease of communication to the representative office in Hong Kong, for the attention of C. K. Chu, Gao Yao (HK) Hua Fa Industrial Co. Ltd.

6On 19 February 1991 the Commission stated the results of its investigations to the representatives of the undertakings which had provided information. In the case of Gao Yao China it noted that only sales by that Chinese undertaking to the Community had been taken into consideration and that sales on the Hong Kong domestic market had been disregarded. The Commission fixed the dumping margin for China at 18.0%.

7On 26 March 1991 the applicant submitted to the Commission a memorandum with supporting documents, pointing out factors which ought to change the method of calculating the normal value of the product in question and lead to a dumping margin of the order of 0.6%.

8Commission Regulation (EEC) No 1386/91 of 23 March 1991 imposing a provisional antidumping duty on imports of gas-fuelled, non-refillable pocket flint lighters originating in Japan, the People's Republic of China, the Republic of Korea and Thailand (OJ 1991 L 133, p. 20) fixed the rate of the antidumping duty for products originating in the People's Republic of China at 17.8%.

9On 19 June 1991, at a hearing before the Commission, the applicant argued that Gao Yao China could not be regarded as an exporter, in view of the provisions of Article 2(6) of Regulation No 2423/88, since all the lighters manufactured in China and sold by Gao Yao Hong Kong are exported from Hong Kong, which is a country with a market economy. According to the applicant, the normal value should therefore be the comparable price actually paid for a like product on the domestic market of the country of export, namely Hong Kong.

10On 2 August 1991 the Commission informed the applicant of the considerations on the basis of which it intended to adopt a final position and impose an antidumping duty of 16.9%.

11On 28 October 1991 the Commission submitted to the Council a proposal for a regulation imposing an antidumping duty of 16.9% on products originating in the People's Republic of China. That rate was in fact used in Regulation No 3433/91.

12Gao Yao Hong Kong brought this action against that regulation.

13The Council considers that its application is inadmissible. Thus the applicant describes itself as a Chinese undertaking, that is, a sales office of the Chinese producing company, on the one hand and a Hong Kong company on the other hand, in order to have the appearance of an exporting company formally independent of the producing company.

14The Council explains that that producing company is a ‘joint venture’set up in China to produce there and take advantage of conditions in a country which still has no market economy. That ‘joint venture’trades with the Community from Hong Kong, a country with a market economy which is fully integrated into the world trade system.

15The Council concludes that this is a case where the country used as a sales platform (Hong Kong) is not concerned by the investigation or by the contested regulation, nor does it manufacture the product in question.

16The applicant states that it is a non-independent exporter integrated into the producer. Both the capital structure and the exclusive sales agreement authorizing it to sell the entire production of the Chinese undertaking demonstrate the interdependency of it and the Chinese producer.

17The applicant observes that the Community authorities were informed that the undertaking established under Chinese law produced the lighters in China for the Hong Kong company, which was responsible for the sale of those lighters both on the Hong Kong domestic market and by way of exports to the Community. The producer undertaking, established under Chinese law, has no sales activity and does not export to the Community. All its sales are carried out by a company governed by Hong Kong law. No sales are concluded with independent third parties.

18The applicant states that it was involved in the administrative procedure before the Commission, that it is identified in the definitive regulation and that it is affected by the preliminary measures. Moreover, if it were no more than a trading intermediary and the regulation only concerned Gao Yao China, the latter would not have been able to reply to the questionnaire except by stating that its entire production was sent to Hong Kong.

19The Commission, which was given leave to intervene in the proceedings by order of 7 September 1992, states that the applicant is a company established under Hong Kong law which is seeking the annulment of a regulation concerning products originating in the People's Republic of China.

20With respect to the involvement of Gao Yao Hong Kong in the administrative procedure, the Commission states that in an antidumping investigation it is its duty to collect all the information which is necessary for examining the case and that all persons are entitled to submit information. The identity of the person providing the information is not important if the information is reliable and relevant. The Commission therefore does not normally examine the legal identity of the person providing information. It is not necessary for it to ensure compliance with the conditions for admissibility of an application to the Court where it is merely a case of collecting information as part of an antidumping investigation.

21The Commission observes that the reply to the questionnaire and the other information on the lighters at issue were submitted by or on behalf of a Chinese producer/exporter. Even if the applicant took part in the administrative investigation as a supplier of information, its application does not comply with the conditions of admissibility laid down by the Court's case-law.

22According to the Commission, the applicant must show that it is directly and individually concerned other than by its participation in the administrative investigation, or at the very least that it should have been given special treatment and had an individual antidumping duty imposed on it.

23The Commission points out that an antidumping procedure concerning a country with no market economy, unlike antidumping procedures concerning other countries, usually leads to a single antidumping duty being fixed for the whole country. That is because the normal value for such a country is established on the basis of a special calculation, since that normal value has to apply to the whole country, and because export prices are presumed to be coordinated in view of central control over exports. The determination of a single antidumping duty for such a country has the consequence that only the State or the State agency responsible for exporting the product in question is directly and individually concerned by antidumping measures. Consequently, special treatment of individual exporters, in other words determination of specific antidumping duties for each economic operator in such a country, becomes possible only if it can be established that the exporters act independently.

24The European Federation of Lighter Manufacturers, which was granted leave to intervene in the proceedings by order of 19 February 1993, considers that a Hong Kong company cannot bring an action for annulment of Regulation No 3433/91, which relates to products originating in the People's Republic of China.

25Since the Council, the Commission and the European Federation of Lighter Manufacturers challenge the admissibility of the application, that question should be examined first.

26Although it is true that, in the light of the criteria set out in the second paragraph of Article 173 of the Treaty, regulations imposing antidumping duties are in fact, as regards their nature and their scope, of a legislative character, in that they apply to all the economic operators concerned taken as a whole, their provisions may none the less be of individual concern to certain economic operators (see the judgments in Joined Cases 239/82 and 275/82 Allied Corporation and Others v Commission [1984] ECR 1005, paragraph 11, and Case 53/83 Allied Corporation and Others v Council [1985] ECR 1621, paragraph 4).

27The Court has held that generally this is the case with producers and exporters who establish that they were identified in the measures adopted by the Commission or the Council or were concerned by the preliminary measures, and with importers whose resale prices for the goods in question are used for determining the export price.

28The applicant was not concerned by the preliminary measures, since it is a company established in Hong Kong on which antidumping duties were not imposed by the Community and which was not the target of the investigation (see the notice of initiation of the proceeding, cited above).

29Moreover, according to its own statements, the applicant intervened merely as a channel of transmission in Hong Kong set up to facilitate correspondence between the Commission and Gao Yao China. Thus the applicant replied to the Commission's questionnaire as a representative of that undertaking.

30Such an approach is also consistent with the principles governing the conduct of investigations into dumping, since the provisions of Regulation No 2423/88 require the Commission to obtain all the information necessary for the investigation, whatever the source of that information. Sending correspondence intended for Gao Yao China to an address in Hong Kong therefore does not mean that Gao Yao Hong Kong, as an office for transmitting documents, was accepted by the Commission as an interlocutor with respect to the subject-matter of the investigation.

31It follows that the applicant was not, through its involvement as an office for the transmission of documents, concerned by the preliminary measures as defined in the case-law referred to above.

32The application must therefore be declared inadmissible.

Costs

33Since the applicant has been unsuccessful, it must be ordered to pay the costs, including those of the intervener, the European Federation of Lighter Manufacturers, under Article 69(2) of the Rules of Procedure. In accordance with Article 69(4), the Commission must bear its own costs.

Operative part

On those grounds,THE COURT (Sixth Chamber)hereby:

1.Dismisses the application as inadmissible;

2.Orders the applicant to pay the costs, including those of the European Federation of Lighter Manufacturers. The Commission of the European Communities must bear its own costs.

Delivered in open court in Luxembourg on 7 July 1994.