CJEC, November 28, 1991, No C-170/89

THE COURT,

1 By an application lodged at the Court Registry on 16 May 1989 the Bureau Européen des Unions de Consommateurs (hereinafter referred to as the "BEUC"), established in Brussels, brought an action requesting the Court to declare void under Articles 173 and 174 of the EEC Treaty the Commission's decision contained in the letter of 15 March 1979 refusing to permit the applicant to inspect the Commission's non-confidential file and information made available by all the parties in the anti-dumping proceeding concerning imports of audio cassettes and audio cassette tapes from Japan, the Republic of Korea and Hong Kong and, in so far as is necessary, to declare inapplicable, pursuant to Article 184 of the Treaty, Article 7(4)(a) of Council Regulation No 2423-88 on protection against dumped or subsidized imports from countries not members of the European Economic Community in so far as it prohibits the applicant from inspecting the aforesaid file and information.

2 By notice of 14 January 1989 (Official Journal 1989 C 11, p. 9) the Commission, having received a complaint made by the European Council of Chemical Manufacturers' Federations on behalf of all the Community producers concerned, announced the initiation of an anti-dumping proceeding concerning certain imports of audio cassettes and audio cassette tapes originating in Japan, the Republic of Korea and Hong Kong.

3 The notice published in the Official Journal stated that requests for a hearing were to be submitted in writing to the competent department of the Commission within 30 days from the date of publication of the notice. That period expired on 14 February 1989.

4 By letter of 13 March 1989 the BEUC, an international association governed by Belgian law possessing legal personality and comprising a number of national organizations whose objects under their documents of constitution consist in the protection of consumers, asked to be heard by the Commission in connection with the proceeding and to be allowed to submit written observations. In order to facilitate the submission of its observations, it requested permission to consult the Commission's file and to be granted access to the non-confidential information communicated by the other parties during the proceeding.

5 By letter of 15 March 1989, sent by telefax, the Commission stated that, according to Article 7(4)(a) of Regulation No 2423-88 (hereinafter referred to as "the basic anti-dumping regulation"), the right to consult the non-confidential file was reserved to the "complainant, exporters and importers known to be concerned as well as the representatives of the exporting country". Consequently, it could not accede to the BEUC's request to inspect the non-confidential file and the information made available by the parties to the proceeding. In the same letter the Commission stated that it was none the less prepared to take account of any written observations made by the BEUC and to grant it a hearing.

6 The BEUC's application is directed against that letter. It appears from the documents before the Court that the Commission did however make available to the applicant a copy of the non-confidential version of the complaint.

7 By order of 4 October 1989 the Court granted the Council leave to intervene in support of the Commission.

8 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 discussed hereinafter only in so far as is necessary for the reasoning of the Court.

Admissibility

9 The Commission submits that the BEUC's application is inadmissible. In its view its telefaxed letter of 15 March 1989 does not constitute a decision which may be the subject of an action under Article 173 of the EEC Treaty, in so far as it merely informs the applicant of its legal position under Article 7(4)(a) of the basic anti-dumping regulation and does not alter its position in any way. The letter does not produce any legal effect and constitutes a mere opinion which Article 173 of the EEC Treaty expressly excludes from the measures which are subject to review by the Court.

10 The BEUC, on the other hand, maintains that the Commission has a discretion concerning access to the non-confidential file. Its refusal to exercise that discretion in favour of the BEUC therefore constituted a decision and not merely an explanation of the legal position. In its view, the wording of Article 7(4)(a) does not prevent organizations such as the BEUC from consulting the non-confidential file.

11 It must be pointed out that, inasmuch as the letter refuses the BEUC access to the non-confidential file, it constitutes not merely a communication but a decision which adversely affects the interests of the BEUC. The Commission's letter must therefore be regarded as an act adversely affecting the BEUC which may be the subject of an action under Article 173 of the EEC Treaty.

12 It follows from the foregoing that the application is admissible.

Substance

13 It should first of all be emphasized that Article 7(4)(a) of the basic anti-dumping regulation expressly grants to the complainant, the importers and exporters known to be concerned and the representatives of the exporting country the right to inspect non-confidential information made available to the Commission, and that they are granted that right only in so far as the information is relevant to the defence of their interests and is used by the Commission in the investigation.

14 In support of its application the BEUC puts forward two pleas in law based, first, on infringement of the principle of the right to a fair hearing and, secondly, on infringement of the principle of sound administration and coherent application of the Community rules of procedure.

The plea based on infringement of the right to a fair hearing

15 The BEUC submits in substance that, by refusing pursuant to Article 7(4)(a) of the basic anti-dumping regulation to grant it access to non-confidential documents made available to the Commission in connection with the administrative anti-dumping proceeding, the Commission infringed the principle of the right to a fair hearing.

16 In its view that principle demands that, prior to the adoption of any individual measure or decision of such a nature as directly to affect the interests of a particular person, that person should have the right to be heard by the responsible authority and to be informed in advance of the facts and considerations on the basis of which the authority intends to act.

17 In the context of an anti-dumping proceeding the right of access to the non-confidential file which is required in order to guarantee the right to a fair hearing is not, in the BEUC's view, limited to information relating to the final case established against the person concerned at the end of the proceeding. That right must extend to all the documents, whatever they may be, placed on the non-confidential file during the proceeding, since such access alone allows the person concerned to be informed of the complaint made against it and to participate effectively in the various phases of the anti-dumping proceeding.

18 According to the BEUC, the fact that Article 7(4)(a) of the basic anti-dumping regulation limits the right of access to the categories expressly mentioned does not prevent it from being allowed such access, since observance of the right to a fair hearing constitutes a fundamental principle of Community law which must be guaranteed even in the absence of an express provision.

19 That argument cannot be upheld. As the Commission and the Council have observed, in the course of an anti-dumping or anti-subsidy proceeding an organization such as the BEUC cannot, in the absence of an express provision, rely on the fundamental principle of the right to a fair hearing in order to claim access to non-confidential documents submitted during the administrative proceeding.

20 An anti-dumping and anti-subsidy proceeding and any protective measures adopted at the end of such a proceeding are directed against imports of certain products in respect of which allegations have been made of dumping by foreign producers or exporters and, in certain cases, by importers or of subsidies by non-member countries.

21 Such a proceeding and any measures adopted at the conclusion thereof are not directed against practices attributable to consumers or organizations such as the BEUC. It follows that a proceeding initiated under Regulation No 2423-88 cannot result in a measure adversely affecting them, since no allegation is made against them.

22 The BEUC therefore wrongly complains that the Commission infringed its right to a fair hearing by refusing it access to the non-confidential documents relating to the proceeding. Neither the principle of the right to a fair hearing nor Article 7(4)(a) of the basic anti-dumping regulation required the Commission to do so.

23 The plea concerning infringement of the right to a fair hearing must therefore be rejected.

The plea concerning infringement of the principle of sound administration and coherent application of the Community rules of procedure

24 In support of this plea the applicant argues that it is illogical, from the point of view of the principle of sound administration and coherent application of the rules of procedure, that Article 7(4)(a) of the basic anti-dumping regulation should limit the right of access of individuals to exporters, importers and complainants and should not grant it to consumer organizations. As regards the coherent application of the Community rules of procedure, it argues that, in the event of an action for annulment being brought by an exporter, it is more than likely that an organization such as the BEUC would be granted leave by the Court to intervene in the proceedings and, by virtue of that intervention, would have the right of access under Article 93(4) of the Rules of Procedure to all the non-confidential documents produced during the proceedings before the Court.

25 It must be emphasized first of all that administrative anti-dumping proceedings and proceedings before the Court for annulment of regulations imposing protective measures have different purposes. Moreover, the rules governing the organization of such proceedings serve different objectives. Anti-dumping proceedings are intended, first, to ensure that imports into the Community are not the subject of dumping causing injury to Community industry and, secondly, to enable the institutions to adopt the necessary measures within a reasonable period if required by the interests of the Community. Proceedings before the Court, on the other hand, are intended, as Article 164 of the EEC Treaty provides, to ensure that "the law is observed".

26 The fact that a consumer organization may where appropriate be granted leave by the Court to intervene in proceedings before it and obtain the right of access as an intervener to non-confidential documents produced by the parties to the proceedings does not therefore mean that such a right should also be granted in administrative anti-dumping proceedings.

27 The plea based on infringement of the principle of sound administration and coherent application of the rules of procedure must therefore be rejected.

28 As regards the submission that Article 7(4)(a) of the basic anti-dumping regulation is inapplicable, it should be noted that from the very wording of that article it is apparent that the Council chose to grant the right of access to the non-confidential file to those most directly concerned by the alleged dumping, namely the complainant and the importers and exporters known to be concerned. Such a right was not granted to consumers against whom no complaint is made. It cannot be concluded that by making that choice the Council infringed the right to a fair hearing or the principle of sound administration. That conclusion is not altered by the fact that the BEUC plays a role in representing consumers before the Community institutions in areas which are unconnected with the anti-dumping rules or by the fact that in adopting protective measures the Community institutions must take into account the interests of the Community, including amongst others those of consumers, and that the BEUC as an organization is better placed than an individual consumer to represent the interests of consumers.

29 However, there is nothing in the wording of Article 7(4)(a) of the basic anti-dumping regulation to prevent the Commission from allowing persons who have a legitimate interest to inspect the non-confidential file.

30 It is for the Community legislature to consider whether the basic anti-dumping regulation should grant an association representing the interests of consumers the right to consult the non-confidential file.

31 In view of the foregoing the BEUC's application must be dismissed as unfounded.

Costs

32 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been asked for in the successful party's pleading. As the applicant has been unsuccessful in its submissions, it must be ordered to pay the costs. Pursuant to Article 69(4) of the Rules of Procedure the Council, which intervened in the proceedings, shall bear its own costs.

On those grounds,

THE COURT

hereby

1. Dismisses the application as unfounded;

2. Orders the applicant to pay the costs, except those of the intervener;

3. Orders the Council to bear its own costs.