CJEC, February 15, 2001, No C-239/99

THE COURT,

1. By order of 21 June 1999, received at the Court on 24 June 1999, the Finanzgericht (Finance Court) Düsseldorf referred for a preliminary ruling under Article 234 EC two questions on the validity of Article 1(2) of Council Regulation (EEC) No 2849-92 of 28 September 1992 modifying the definitive anti-dumping duty on imports of ball bearings with a greatest external diameter exceeding 30 mm originating in Japan imposed by Regulation (EEC) No 1739-85 (OJ 1992 L 286, p. 2).

2. Those questions have been raised in a dispute between Nachi Europe GmbH ('Nachi Europe') and the Hauptzollamt (Principal Customs Office) Krefeld ('the Hauptzollamt') following the latter's decision to reject Nachi Europe's request for reimbursement of anti-dumping duties paid pursuant to Regulation No 2849-92.

The legal framework

Regulation No 2849-92

3. Council Regulation (EEC) No 1739-85 of 24 June 1985 imposing a definitive anti-dumping duty on imports of certain ball bearings and tapered roller bearings originating in Japan (OJ 1985 L 167, p. 3) imposed definitive anti-dumping duties on imports of ball bearings of Japanese origin having a greatest external diameter of more than 30 mm. In particular, Regulation No 1739-85 imposed on ball bearings manufactured by NTN Toyo Bearing Ltd ('NTN'), Koyo Seiko Co. Ltd ('Koyo Seiko') and Nachi Fujikoshi Corporation ('Nachi Fujikoshi') definitive anti-dumping duties amounting, respectively, to 3.2%, 5.5% and 13.9% of the net, free-at-Community-frontier price before duty.

4. Those duties were modified by Regulation No 2849-92, which was adopted pursuant to Council Regulation (EEC) No 2423-88 of 11 July 1988 on protection against dumped or subsidised imports from countries not members of the European Economic Community (OJ 1988 L 209, p. 1) and entered into force on 2 October 1992.

5. It is clear, in particular, from the recitals in the preamble to Regulation No 2849-92 that the Council concluded that removing the existing anti-dumping measures would lead to a recurrence of material injury for the Community industry (recital 39) and that the Community clearly had an interest in maintaining protection for its ball bearings industry against unfair competition caused by imports at dumped prices (recital 44). After comparing price levels (recitals 45 to 52), Regulation No 2849-92 modified the existing definitive duties, inter alia by fixing them, in Article 1(2), at 11.6% for NTN, 13.7% for Koyo Seiko, and 7.7% for Nachi Fujikoshi.

The judgment of the Court of First Instance in NTN Corporation and Koyo Seiko v Council and the judgment of the Court of Justice in Commission v NTN and Koyo Seiko

6. By judgment of 2 May 1995 in Joined Cases T-163-94 and T-165-94 NTN Corporation and Koyo Seiko v Council [1995] ECR II-1381, the Court of First Instance of the European Communities, ruling in an action brought by NTN and Koyo Seiko seeking the annulment of Regulation No 2849-92, annulled Article 1 of Regulation No 2849-92 'in so far as it imposes an anti-dumping duty on the applicants'.

7. The above judgment in NTN Corporation and Koyo Seiko v Council makes clear that the Court of First Instance took the view that several recitals in the preamble to Regulation No 2849-92 contained statements which were vitiated by errors of fact or of law, or which were misleading because they were incomplete. The Court of First Instance accordingly concluded that the finding in recital 39 in the preamble to that regulation that dumped imports threatened to cause the Community ball-bearing industry material injury was itself wrong in law and in fact.

8. In its judgment of 10 February 1998 in Case C-245-95 P Commission v NTN and Koyo Seiko [1998] ECR I-401, the Court dismissed the Commission's appeal against the judgment in NTN Corporation and Koyo Seiko v Council. The Court pointed out in particular that the Council's failure, as found by the Court of First Instance, to establish that there was injury or threat of injury within the meaning of Article 4 of Regulation No 2423-88 was sufficient to warrant the annulment of Article 1 of Regulation No 2849-92.

9. Drawing the consequences from the judgments in NTN Corporation and Koyo Seiko v Council and Commission v NTN and Koyo Seiko, the Commission, on 3 June 1998, published Notice 98-C 168-04 entitled 'Notice concerning anti-dumping measures on imports of ball-bearings with a greatest external diameter exceeding 30 mm originating in Japan' (OJ 1998 C 168, p. 6), which stated, so far as definitive duties collected after the entry into force of Regulation No 2849-92 were concerned, that importers could request their refund from national customs authorities with regard to products manufactured by Koyo Seiko and NTN.

The dispute in the main proceedings and the questions submitted for a preliminary ruling

10. Nachi Europe, which is a subsidiary of Nachi Fujikoshi, imported, in November and December 1995, ball bearings of Japanese origin manufactured by its parent company, and cleared them for release into free circulation at the customs post in Mönchengladbach, which comes under the responsibility of the Hauptzollamt.

11. To that end, Nachi Europe paid anti-dumping duties totalling DEM 58 891.51 imposed by payment notices of 17 November 1995 and 29 December 1995.

12. In a letter received by the Hauptzollamt on 19 November 1998, Nachi Europe requested reimbursement of the anti-dumping duties which it had paid, pleading theillegality of Regulation No 2849-92 resulting from the judgments in NTN Corporation and Koyo Seiko v Council and Commission v NTN and Koyo Seiko.

13. By decision of 11 January 1999 the Hauptzollamt rejected the request for reimbursement. It also dismissed the administrative complaint lodged by Nachi Europe against that decision.

14. In support of the action which it then brought before the Finanzgericht Düsseldorf, Nachi Europe submitted that Regulation No 2849-92 imposes anti-dumping duties on the ball bearings which it imported and that, in the judgments in NTN Corporation and Koyo Seiko v Council and Commission v NTN and Koyo Seiko, the actions for annulment brought by other importers had been upheld.

15. The Finanzgericht noted that, while the judgments in NTN Corporation and Koyo Seiko v Council and Commission v NTN and Koyo Seiko declared Regulation No 2849-92 invalid only in regard to the applicants in those cases, and not in regard to Nachi Europe, the grounds of those judgments none the less point to the conclusion that Article 1(2) of Regulation No 2849-92 is invalid in its entirety.

16. In those circumstances, the Finanzgericht Düsseldorf decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

'1. Is Article 1(2) of Regulation (EEC) No 2849-92 invalid?

2. If the first question is to be answered in the affirmative, from what point in time is Article 1(2) of Regulation (EEC) No 2849-92 to be considered invalid in regard to the plaintiff?'

The first question

17. It is clear from the order for reference that, by its first question, the referring court is seeking to ascertain, not whether Article 1(2) of Regulation No 2849-92 is invalid in its entirety, but only whether that provision is invalid to the extent to which it imposes an anti-dumping duty on ball bearings manufactured by Nachi Fujikoshi and imported by its subsidiary Nachi Europe, these being the only products at issue in the main proceedings.

18. To that end it is necessary to consider, first, whether the judgments in NTN Corporation and Koyo Seiko v Council and Commission v NTN and Koyo Seiko affected the validity of Article 1(2) of Regulation No 2849-92 in so far as that provision fixes an anti-dumping duty applicable to ball bearings manufactured by Nachi Fujikoshi and, second, whether, if they did not have such an effect, Nachi Europe can plead that that anti-dumping duty is invalid in a dispute before a national court.

The effect of the judgments in NTN Corporation and Koyo Seiko v Council and Commission v NTN and Koyo Seiko on the validity of the anti-dumping duty applicable to ball bearings manufactured by Nachi Fujikoshi

19. It is appropriate at the outset to recall the conditions under which an individual has locus standi to bring an action for the annulment of a regulation, such as Regulation No 2849-92, which imposes anti-dumping duties.

20. The fourth paragraph of Article 230 EC makes the admissibility of an action for annulment brought by a natural or legal person subject to the condition that the contested measure, although in the form of a regulation, is of direct and individual concern to that person.

21. According to settled case-law, regulations imposing an anti-dumping duty, although by their nature and scope of a legislative nature, are liable to be of direct and individual concern to inter alios those producers and exporters who are able to establish that they were identified in the measures adopted by the Commission or the Council or were concerned by the preliminary investigations (see, in particular, Joined Cases 239-82 and 275-82 Allied Corporation and Others v Commission [1984] ECR 1005, paragraph 12), or, again, to those importers whose retail prices for the products in question form the basis of the constructed export price, where exporter and importer are associated (see, in particular, Joined Cases C-305-86 and C-160-87 Neotype Techmashexport v Commission and Council [1990] ECR I-2945, paragraph 19).

22. The Court has ruled that, where a regulation which introduces an anti-dumping duty imposes different duties on a series of undertakings, an undertaking is individually concerned only by those provisions which impose on it a specific anti-dumping duty and determine the amount thereof, and not by those provisions which impose anti-dumping duties on other undertakings, with the result that an action brought by that undertaking will be admissible only in so far as it seeks the annulment of those provisions of the regulation that exclusively concern it (Case 240-84 Toyo v Council [1987] ECR 1809, paragraphs 6 and 7; Case 255-84 Nachi Fujikoshi v Council [1987] ECR 1861, paragraphs 7 and 8; Case 256-84 Koyo Seiko v Council [1987] ECR 1899, paragraphs 6 and 7; and Case 258-84 Nippon Seiko v Council [1987] ECR 1923, paragraphs 7 and 8).

23. It was within the context of that case-law that NTN and Koyo Seiko, ball-bearing manufacturers named in Regulation No 2849-92, each brought an action before the Court of First Instance in which they sought annulment of that regulation to the extent to which it affected them individually.

24. In its judgment in NTN Corporation and Koyo Seiko v Council, the Court of First Instance upheld the actions brought by those undertakings within the limits of the forms of order sought from it, that is to say, by annulling Article 1 of Regulation No 2849-92 only in so far as it imposed anti-dumping duties on NTN Corporation and Koyo Seiko, in accordance with the case-law which states that, since it would be ultra vires for theCommunity judicature to rule ultra petita (see Joined Cases 46-59 and 47-59 Meroni v High Authority [1962] ECR 411, at page 419, and Case 37-71 Jamet v Commission [1972] ECR 483, paragraph 12), the scope of the annulment which it pronounces may not go further than that sought by the applicant (Case C-310-97 P Commission v AssiDomän Kraft Products and Others [1999] ECR I-5363, paragraph 52).

25. The Court has pointed out in this regard that, if an addressee of a decision decides to bring an action for annulment, the matter to be considered by the Community judicature relates only to those aspects of the decision which concern that addressee. Unchallenged aspects concerning other addressees, on the other hand, do not form part of the matter to be tried by the Community judicature (AssiDomän Kraft Products, cited above, paragraph 53).

26. The Court has also ruled that, although the authority erga omnes exerted by an annulling judgment of a court of the Community judicature attaches to both the operative part and the ratio decidendi of the judgment, it cannot entail annulment of an act not challenged before the Community judicature but alleged to be vitiated by the same illegality (AssiDomän Kraft Products, paragraph 54).

27. That being so, the annulment of Article 1 of Regulation No 2849-92 by the Court of First Instance in its judgment in NTN Corporation and Koyo Seiko v Council, upheld by the Court of Justice in Commission v NTN and Koyo Seiko, in so far as that article imposed anti-dumping duties on NTN and Koyo Seiko, did not affect the validity of the other aspects of that regulation, in particular the anti-dumping duty applicable to ball bearings manufactured by Nachi Fujikoshi, since those aspects did not form part of the subject of the dispute on which the Community judicature was called to rule.

The possibility for Nachi Europe to plead that the anti-dumping duty is invalid in a dispute before a national court

28. Irrespective of the effects of the partial annulment delivered by the Court of First Instance in its judgment in NTN Corporation and Koyo Seiko v Council, it is necessary to examine whether Nachi Europe has locus standi to plead the invalidity of the anti-dumping duty applicable to ball bearings manufactured by Nachi Fujikoshi in a dispute before a national court.

29. First, it is settled case-law that a decision adopted by a Community institution which has not been challenged by its addressee within the time-limit laid down by the fifth paragraph of Article 230 EC becomes definitive as against that person (see, inter alia, Case 156-77 Commission v Belgium [1978] ECR 1881, paragraphs 20 to 24, Case C-183-91 Commission v Greece [1993] ECR I-3131, paragraphs 9 and 10, and Case C-188-92 TWD Textilwerke Deggendorf v Germany [1994] ECR I-833, paragraph 13). Such a rule is based in particular on the consideration that the periods within which legal proceedings must be brought are intended to ensure legal certainty bypreventing Community measures which produce legal effects from being called in question indefinitely (Case C-178-95 Wiljo v Belgian State [1997] ECR I-585, paragraph 19).

30. The Court has also ruled that it follows from the same requirements of legal certainty that it is not possible for a recipient of State aid, forming the subject-matter of a Commission decision addressed directly solely to the Member State from which that beneficiary came, who could undoubtedly have challenged that decision and who allowed the mandatory time-limit laid down in this regard by the fifth paragraph of Article 230 EC to pass, to call in question the lawfulness of that decision before the national courts in an action brought against the measures taken by the national authorities in implementation of that decision (TWD Textilwerke Deggendorf, paragraphs 17 and 24, and Wiljo, paragraphs 20 and 21, both cited above). The Court has taken the view that to find otherwise would enable the recipient of the aid to overcome the definitive nature which a decision necessarily assumed, by virtue of the principle of legal certainty, once the time-limit laid down for bringing proceedings had passed (TWD Textilwerke Deggendorf, paragraph 18, and Wiljo, paragraph 21).

31. It is necessary to examine whether, as the Council and Commission submit, the solution arrived at in TWD Textilwerke Deggendorf may be extended to a case, such as that here in the main proceedings, in which it is the invalidity of an anti-dumping regulation that is being invoked in a dispute before a national court by an undertaking in a position such as that of Nachi Europe.

32. On this point, Nachi Europe submitted during the hearing that the solution arrived at in TWD Textilwerke Deggendorf could not be applied where the invalidity of a regulation is pleaded incidentally, since Article 241 EC allows any party to plead the inapplicability of a regulation as an incidental issue, notwithstanding the expiry of the period laid down in the fifth paragraph of Article 230 EC.

33. It should first of all be noted in this regard that, according to settled case-law, the possibility provided by Article 241 EC of pleading the inapplicability of a regulation does not constitute an independent right of action and may only be exercised incidentally in proceedings brought before the Court of Justice itself pursuant to a separate provision of the Treaty (judgments in Joined Cases 31-62 and 33-62 Wöhrmann and Lütticke v Commission [1962] ECR 501, at 507, Case 33-80 Albini v Council and Commission [1981] ECR 2141, paragraph 17, and Joined Cases 87-77, 130-77, 22-83, 9-84 and 10-84 Salerno and Others v Commission and Council [1985] ECR 2523, paragraph 36; order in Case C-64-93 Donatab and Others v Commission [1993] ECR I-3595, paragraph 19).

34. Since Article 241 EC cannot be invoked before the Court in the absence of a main action brought before it, that provision cannot as such be applied in the context of the preliminary ruling procedure provided for in Article 234 EC. As the Advocate General has pointed out in paragraph 62 of his Opinion, Article 234 EC itself provides for a procedure for resolution of a question which arises with regard to the validity ofa Community measure, where such a question arises incidentally in a dispute before a national court.

35. It is true, however, that Article 241 EC expresses a general principle of law under which an applicant must, in proceedings brought under national law against the rejection of his application, be able to plead the illegality of a Community measure on which the national decision adopted in his regard is based, and the question of the validity of that Community measure may thus be referred to the Court in proceedings for a preliminary ruling (Case 216-82 Universität Hamburg [1983] ECR 2771, paragraphs 10 and 12).

36. The Court has also pointed out that this general principle confers on any party to proceedings the right to challenge, for the purpose of obtaining the annulment of a decision of direct and individual concern to that party, the validity of previous acts of the institutions which form the legal basis of the decision which is being attacked, if that party was not entitled under Article 230 EC to bring a direct action challenging those acts by which it was thus affected without having been in a position to ask that they be declared void (Case 92-78 Simmenthal v Commission [1979] ECR 777, paragraph 39, and TWD Textilwerke Deggendorf, paragraph 23).

37. However, this general principle, which has the effect of ensuring that every person has or will have had the opportunity to challenge a Community measure which forms the basis of a decision adversely affecting him, does not in any way preclude a regulation from becoming definitive as against an individual in regard to whom it must be considered to be an individual decision and who could undoubtedly have sought its annulment under Article 230 EC, a fact which prevents that individual from pleading the illegality of that regulation before the national court (see, in regard to a Commission decision, TWD Textilwerke Deggendorf, paragraphs 24 and 25). Such a conclusion applies to regulations imposing anti-dumping duties by virtue of their dual nature, noted by the Court in the case-law cited in paragraph 21 of the present judgment, as acts of a legislative nature and acts liable to be of direct and individual concern to certain traders.

38. In the present case, Nachi Europe, the plaintiff in the main proceedings, could undoubtedly have sought the annulment of Article 1(2) of Regulation No 2849-92 inasmuch as it fixed an anti-dumping duty applicable to ball bearings manufactured by Nachi Fujikoshi.

39. As the Advocate General has noted in paragraphs 32 to 34 of his Opinion, Nachi Europe is an importer which is associated with Nachi Fujikoshi and whose resale prices for the goods in question were used to construct the export price applied by Regulation No 2849-92 in order to establish the dumping margins in respect of Nachi Fujikoshi. Pursuant to the case-law cited in paragraphs 21 and 22 of the present judgment, that fact allowed Nachi Europe to be regarded as being directly and individually concernedby the provisions of that regulation which imposed a specific anti-dumping duty on goods manufactured by Nachi Fujikoshi.

40. It follows from all of the foregoing considerations that the answer to the first question must be that neither the judgment of the Court of First Instance in NTN Corporation and Koyo Seiko v Council nor that of the Court of Justice in Commission v NTN and Koyo Seiko affected the validity of Article 1(2) of Regulation No 2849-92 in so far as it fixes an anti-dumping duty applicable to ball bearings manufactured by Nachi Fujikoshi.

An importer of those products, such as Nachi Europe, which undoubtedly had a right of action before the Court of First Instance to seek the annulment of the anti-dumping duty imposed on those goods, but which did not exercise that right, cannot subsequently plead the invalidity of that anti-dumping duty before a national court. In such a case, the national court is bound by the definitive nature of the anti-dumping duty applicable under Article 1(2) of Regulation No 2849-92 to ball bearings manufactured by Nachi Fujikoshi and imported by Nachi Europe.

The second question

41. In view of the fact that the national court posed the second question only in the event that the first question should be answered in the affirmative, it is unnecessary to reply to that second question.

Costs

42. The costs incurred by the Council and the Commission, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT,

in answer to the questions referred to it by the Finanzgericht Düsseldorf by order of 21 June 1999, hereby rules:

Neither the judgment of the Court of First Instance in Joined Cases T-163-94 and T-165-94 NTN Corporation and Koyo Seiko v Council nor that of the Court of Justice in Case C-245-95 P Commission v NTN and Koyo Seiko affected the validity of Article 1(2) of Council Regulation (EEC) No 2849-92 of 28 September 1992 modifying the definitive anti-dumping duty on imports of ball bearings with agreatest external diameter exceeding 30 mm originating in Japan imposed by Regulation (EEC) No 1739-85 in so far as it fixes an anti-dumping duty applicable to ball bearings manufactured by Nachi Fujikoshi Corporation.

An importer of those products, such as Nachi Europe GmbH, which undoubtedly had a right of action before the Court of First Instance to seek the annulment of the anti-dumping duty imposed on those goods, but which did not exercise that right, cannot subsequently plead the invalidity of that anti-dumping duty before a national court. In such a case, the national court is bound by the definitive nature of the anti-dumping duty applicable under Article 1(2) of Regulation No 2849-92 to ball bearings manufactured by Nachi Fujikoshi Corporation and imported by Nachi Europe GmbH.