¹ For a discussion of the Court’s authority to review antidumping determinations reached by the Commission of the European Communities and the Council -of the European Communities, see Jean-Francois Bellis, The EEC Antidumping System, in Antidumping Law and Practice 41, 46–47, 65–68 (John H. Jackson & Edwin Vermulst eds., 1990).

² Regulation 2808/89, 1989 O.J. (L 271) 1.

³ The Commission’s decision in this matter is Regulation 707/89, 1989 O.J. (L 78) 10.

⁴ See id., para. 1. Antidumping duties in the EEC are definitively assessed by the Council following initial consideration by the Commission. The Commission, which is the EEC’s administrative arm, “receives complaints, decides whether there is sufficient evidence to justify initiating a proceeding, carries out the investigation …[,] imposes provisional antidumping duties” and “submits proposals for definitive action to the Council.” Bellis, supra note 1, at 45. The Council, the principal decision making body of the Community, “has sole competence, upon a proposal from the Commission, to order the imposition of definitive antidumping duties as well as the definitive collection of provisional antidumping duties.” Id. at 45–46. The EEC’s antidumping law and procedures are set forth in Council Regulation 2423/88, Protection Against Dumped or Subsidized Imports from Countries Not Members of the European Economic Community, 1988 O.J. (L 209) 1, reprinted in 2 Common Mkt. Rep. (CCH) 113821 (1991). See generally Ivo Van Bael & Jean-Francois Bellis, Anti-Dumping and other Trade Protection Laws of the EEC (2d. ed. 1990). Council Regulation 2423/88 is modeled on the Agreement on Interpretation and Application of Article VI of the General Agreement on Tariffs and Trade (the GATT Antidumping Code), Apr. 12, 1979, 31 UST 4919, GATT, Basic Instruments and Selected Documents, 26th Supp. 171 (1980). Antidumping duties may be assessed only against exports into the EEC that are sold at an export price lower than the normal value of a like product, and are causing injury to producers in the EEC. See Council Regulation 2423/88, supra, Art. 2(A). Even if these two tests are met, antidumping duties are to be assessed only if doing so would be in the interests of the EEC. See id., Arts. 11(1) and 12(1); see also infra note 15.

⁵ Commission Regulation 707/89, supra note 3, para. 1.

⁶ Id., para. 5.

⁷ Id., paras. 6–7. The opinion of the Court’s Advocate General, discussed in more detail infra in text at notes 29–44, explained:

⁸ See Commission Regulation 707/89, supra note 3, paras. 9–12. Article 2(5) of Council Regulation 2423/88, supra note 4, provides that for imports from nonmarket economies, normal value can be based on “the price at which the like product of a market economy third country is actually sold.”

⁹ Commission Regulation 707/89, supra note 3, para. 15.

¹⁰ Id., para. 20.

¹¹ Id.

¹² Article 4(1) of Council Regulation 2423/88, supra note 4, provides:

¹³ Commission Regulation 707/89, supra note 3, para. 21.

¹⁴ Id., para. 22. The Commission also found that the Chinese and Soviet imports made “[Péchiney’s] situation much more difficult and prevented both sales and investment intended to increase competitiveness from being sufficiently profitable.” Id.

¹⁵ Pursuant to Articles 11(1) and 12(1) of Council Regulation 2423/88, supra note 4, EEC antidumping duties 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” (emphasis supplied). Thus, antidumping duties are not automatically imposed upon a finding of dumping and injury. Instead, Community authorities “retain the power to decide to refrain from imposing a duty if intervention were found to work against the interests of the Community.” Bellis, supra note 1, at 62. U.S. antidumping law has no provision analogous to this general public interest test.

¹⁶ Commission Regulation 707/89, supra note 3, para. 23.

¹⁷ Id., Art. 1. Under the allocation of responsibility between the Commission and the Council, the Commission’s imposition of antidumping duties is provisional and subject to review by the Council. See note 4 supra; Council Regulation 2423/88, supra note 4, Arts. 11–12; see also Bellis, supra note 1, at 45–46.

¹⁸ Bellis, supra note 1, at 46, observes that the Council “is not involved in the investigative process” and that, “[i]n most cases, the Council limits itself to rubber stamping the proposals for definitive action submitted by the Commission.”

¹⁹ Council Regulation 2808/89, supra note 2, paras. 4–7. The Council’s discussion went primarily to whether the imports and the local production were “like products” for purposes of Article 2(12) of Council Regulation 2423/88, supra note 4 (definition of “like product”).

²⁰ Council Regulation 2808/89, supra note 2, paras. 8–12.

²¹ Extramet’s other arguments, all of which the Council rejected, were that (1) the Commission had incorrectly selected 1985 as a reference year for considering injury to Péchiney; (2) Péchiney’s decision to invest in new capacity, which went unused, had not been justified; (3) the fall in Péchiney’s sales price had been due in part to a lack of competition, coupled with poor management and high fixed costs; (4) other third-country imports had been responsible for any injury caused; and (5) Péchiney had instituted price cutting and forced the Chinese and Soviet exporters to match its prices. See id., paras. 13–14, 16–19.

²² Advocate Gen. Op., supra note 7, para. 26. The Advocate General noted that, “[a]ccording to [Extramet], 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.” Id.

²³ See id., para. 5. Article 86 of the Treaty Establishing the European Economic Community [EEC Treaty] provides that “[a]ny abuse by one or more undertakings of a dominant position within the common market or in a substantial part of it shall be prohibited as incompatible with the common market in so far as it may affect trade between Member States.” A refusal to deal by a dominant firm can constitute an abuse of that firm’s dominant position. See generally 2 Barry Hawk, United States, Common Market, and International Antitrust 840–60 (2d ed., 1990 Supp.).

²⁴ Council Regulation 2808/89, supra note 2, para. 15. Article 14(1) of Council Regulation 2423/88, supra note 4, provides that “[regulations imposing anti-dumping or countervailing duties and decisions to accept undertakings shall be subject to review, in whole or in part, where warranted.”

²⁵ Council Regulation 2808/89, supra note 4, para. 19.

²⁶ Id., paras. 20–23. The arguments rejected by the Council on the issue of Community interest related to the use within the EEC of the imported calcium metal; the impact of the antidumping duties on an importer that transformed the imported metal; and the Community’s policy toward certain technology implicated by the imported metal.

²⁷ Id., Arts. 1–2.

²⁸ Extramet sought, in the alternative, annulment of the Council’s refusal to exempt Extramet’s calcium metal imports from the antidumping duties. See Advocate Gen. Op., supra note 7, para. 1; Council Regulation 2808/89, supra note 2, para. 24. The Court’s annulment of the entire Council regulation effectively rendered this point moot.

²⁹ The Court is assisted by six Advocates General, impartial attorneys who advise the Court on the disposition of pending cases. Under the EEC Treaty, Art. 166, “[i]t shall be the duty of the Advocate General, acting with complete impartiality and independence, to make, in open court, reasoned submissions on cases brought before the Court of Justice, in order to assist the Court in the performance of the task assigned to it in Article 164” (ensuring that the law is observed in the interpretation and application of the EEC Treaty). See generally 3 Common Mkt. Rep. (CCH) ¶¶4608-09 (1991) (discussing role of Advocate General in assisting the Court). As reflected in the following discussion, the Advocate General’s opinion in Extramet Industrie is far more detailed and reasoned than the ensuing opinion of the Court itself, and addresses subjects, including the application of the Community interest standard, that were not addressed by the Court.

³⁰ In other sections of his opinion, supra note 7, the Advocate General agreed with the Council’s decisions regarding the similarity between the imported calcium metal and the calcium metal produced by Péchiney (paras. 9–14); the Council’s calculation of normal value (paras. 15–19); and the Council’s decision on several preliminary issues concerning Péchiney’s injury (paras. 20–25).

³¹ See text at notes 24–26 supra.

³² Advocate Gen. Op., supra note 7, para. 28.

³³ Id.

³⁴ Id., para. 29.

³⁵ Id., para. 30. In this regard, the Advocate General noted John Temple Lang’s observation that “[a]ntitrust 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 … .” Id. (quoting John Temple Lang, Reconciling European Community Antitrust and Antidumping, Transport and Trade Safeguard Policies—Practical Problems, in 1989 Fordham Corporate Law Inst., Annual Proc. 7–1, 7–2 (Barry Hawk ed.)).

³⁶ Id., para. 31.

³⁷ Id., para. 32 (citing EEC Treaty, Arts. 3(b) and 113).

³⁸ Id., para. 33.

³⁹ Id., para. 37. The Advocate General noted that the Council’s failure to deal with the substance of this issue was also incompatible with Article 190 of the EEC Treaty, which requires all regulations to state the reasons on which they are based. Id. As a separate matter, the Advocate General declined to make any findings on allegations by Extramet that Pechiney had actually started a price war with the exporters in 1987, noting that since the Council’s decision had to be annulled on other grounds, he did not have to decide this additional issue. Id., paras. 38–39.

⁴⁰ See supra note 15. The Advocate General observed that under the Court’s precedent, judicial review of the Community interest requirement 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.” Advocate Gen. Op., supra note 7, para. 42.

⁴¹ Advocate Gen. Op., supra note 7, para. 40.

⁴² Id., para. 42.

⁴³ Id., para. 43. In this respect, the Advocate General also noted that the Commission’s own Guide to the European Communities’ Anti-Dumping and Countervailing Legislation 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.” Id. The Commission’s Guide is reprinted in Van Bael & Bellis, supra note 4, at 594–600.

⁴⁴ Advocate Gen. Op., supra note 7, para. 44.

⁴⁵ Id., para. 45. He also noted that while there were some regulatory restrictions on the use of information acquired by EEC antitrust officials in competition cases, and EEC trade officials in anti dumping cases, “these provisions do not prevent officials of the relevant Directorates General from consulting each other in appropriate cases before action is taken.” Id., para. 47.

⁴⁶ See id., para. 49 (“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.”). The Advocate General further noted that even a Commission decision that Péchiney’s conduct was compatible with Article 86 of the EEC Treaty would not absolve Community institutions of the responsibility of evaluating the effect on competition of the antidumping duty in this case. Id.

⁴⁷ See text at note 24 supra.

⁴⁸ See Proceedings of the Court of Justice and the Court of First Instance, NO. 17/92, 1992, at 9–10 (EEC publication containing English-language summary of the Court’s decision). The Court’s decision was issued in French and, at the time of writing, had not been translated into English or other EEC languages. The Commission and Council Regulations cited in notes 2 and 3 supra were published in English; the Advocate General’s opinion, supra note 7, was issued in English.

⁴⁹ The tension between trade and competition law and policy has been frequently noted. See, e.g., Diane P. Wood, “Unfair” Trade Injury: A Competition-Based Approach, 41 Stan. L. Rev. 1153 (1989); Harvey M. Applebaum, The Interface of Trade/Competition Law and Policy: An Antitrust Perspective, 56 Antitrust L.J. 409 (1987); A. Paul Victor, Antidumping and Antitrust: Can the Inconsistencies Be Resolved?, 15 N.Y.U. J. Int’l L. & Pol. 339 (1983). In this connection, the U.S. Court of International Trade has ruled that, in making a determination of causation under U.S. antidumping laws, the U.S. International Trade Commission must determine whether dumped imports have caused “injury to industry”; an inquiry by the Commission into whether such imports have caused “injury to competition” does not satisfy the requirements of U.S. law. USX Corp. v. United States, 682 F.Supp. 60, 67 (Ct. Int’l Trade 1988). An examination of effects of imports on competition “can be a useful way of exploring the causation issue [but] cannot supplant the inquiry required by statute.” Id.

⁵⁰ See Mark Clough, Conflicts between EEC Anti-Dumping and Competition Law, 3 Eur. Competition L. Rev. 222, 223–25 (1992); Powerful opinion against a duty, Bus. L. Brief, May 1992, at 12–13 (discussing Advocate General’s opinion); see also European Court Instructs Consideration of Competition Rules in Anti-dumping Cases, Jan.–June] Antitrust and Trade Reg. Rep. (BNA) No. 1570, at 821 (June 18, 1992).