CJEC, March 29, 1979, No 113-77

THE COURT

1 By application of 19 september 1977, received at the court registry on 20 september 1977, the applicants, ntn toyo bearing company ltd. (hereinafter referred to as ' ' ntn ' '), ntn bearings - gkn ltd. - ntn walzlager (europa) gmbh and ntn sidag (hereinafter referred to as ' ' the subsidiaries ' ') brought before the court of justice under article 173 of the treaty an action against the council for the annulment of article 3 of council regulation (eec) n° 1778-77 of 26 july 1977 concerning the application of the anti-dumping duty on ball bearings and tapered roller bearings, originating in japan (official journal 1977, l 196, p. 1) in so far as that article affects them.

2 By application of 5 october 1977 the federation of european bearing manufacturers ' associations (hereinafter referred to as ' ' febma ' ') asked to be allowed to intervene in support of the submissions of the council, the defendant; this intervention was allowed by order of the court of 26 october 1977.

3 As early as the beginning of 1977, the commission, under article 10 of regulation (eec) n° 459-68 of the council of 5 april 1968 on protection against dumping or the granting of bounties or subsidies by countries which are not members of the european economic community (official journal, english special edition 1968 (i), p. 80), commenced examination of the matter so as to check whether protective measures against dumping by japanese ball bearing and tapered roller bearing producers were necessary.

4 Pursuant to article 10 in conjunction with article 15 of regulation n°459-68, the commission introduced by regulation (eec) n°261-77 of 4 february 1977 (official journal 1977, l 34, p. 10) a provisional anti-dumping duty of 20%, reduced to 10% in the case of two producers, for ball bearings, tapered roller bearings and parts thereof originating in japan; this provisional duty was extended by council regulation (eec) n°944-77 of 3 may 1977 (official journal 1977, l 112, p. 1) under article 16 of the basic regulation, regulation n°459-68.

5 During the procedure initiated by the commission the four major japanese producers, including ntn, gave voluntary undertakings signed on 20 july 1977 under article 14 (2) of regulation n°459-68 to revise their prices so that the margin of dumping might be eliminated; those undertakings resulted in an increase of 20% in their export prices.

6 Council regulation (eec) n°1778-77 of 26 july 1977 then introduced, under article 17 of regulation n°459-68, a definitive anti-dumping duty of 15% on the products in question and suspended the application of that duty; article 3 of that regulation, which is the subject-matter of the application, provides, as regards the products exported by the four major japanese producers, for the definitive collection of the amounts secured by way of provisional anti-dumping duty laid down in regulations nos 261-77 and 944-77.

The admissibility of the application

7 The council has raised an objection of inadmissibility claiming that the contested article forms part of a regulation and that the applicants are therefore not entitled to request annulment of it under the second paragraph of article 173 of the treaty. It claims that in the present case this is not a decision adopted in the guise of a regulation since regulation n°1778-77 in fact constitutes a general rule which affects all the products in question originating in japan and which must, according to article 19 (1) of regulation n°459-68 of the council of 5 april 1968 on protection against dumping or the granting of bounties or subsidies by countries which are not members of the european economic community (official journal, english special edition 1968 (i), p. 80), be adopted in the form of a regulation.

8 The applicants reply that the contested article, although drafted in abstract terms, in fact affects only the first applicant and three other japanese undertakings which produce the products in question (hereinafter referred to as ' ' the major producers ' '), as well as their subsidiaries in the community. The preliminary investigation carried out before the adoption of regulation n°1778-77 was limited to inquiries made first at the premises of the european subsidiaries and then at the premises of the major producers in japan. The specific nature of the measure is confirmed by article 3 of regulation n°1778-77 which provides for the collection of the amounts secured by way of provisional duty only as regards the products manufactured and exported by the major producers. The contested article therefore constitutes a decision which affects only the major producers and their subsidiaries and must therefore be considered to be a decision concerning them adopted in the guise of a regulation.

9 Before commencing the examination of the admissibility of the application, it should be stated that ntn and its subsidiaries are sufficiently closely associated for the commission to have considered, during its examination of the matter, that it was necessary to apply to them the special provisions concerning export prices laid down in article 3 (3) of the basic regulation, regulation n°459-68. In these circumstances there is no need, as regards the question whether the contested measure is of direct and individual concern to the applicants, to make a distinction in relation to them between producers on the one hand and importers on the other.

10 Regulation n°1778-77 contains essentially three provisions:

(i) Article 1 imposes a definitive anti-dumping duty of 15% on the products in question originating in japan and suspends the application of that duty without prejudice to article 2;

(ii) Article 2 regulates the monitoring of the undertakings given by the major japanese producers and empowers the commission to terminate the suspension of the application of the duty if it finds that these undertakings are being evaded, not being observed or have been withdrawn;

(iii) Article 3 provides, in respect of the products manufactured by the major producers, for the collection of the amounts secured by way of provisional duty in application of the imposition by previous regulations of a provisional duty.

11 Article 3 constitutes accordingly a collective decision relating to named addresses. Although the collection of the amounts secured by way of provisional anti-dumping duty is per se of direct concern to any importer who has imported the products in question subject to such duty, the special feature of article 3 which sets it apart is that it does not concern all importers but only those who have imported the products manufactured by the four major japanese producers named in that article. The allegation of the council and the intervener that only implementing measures adopted by the national authorities are of direct concern to the importers and that these importers should therefore, where appropriate, bring the matter before the national courts having jurisdiction disregards the fact that such implementation is purely automatic and, moreover, in pursuance not of intermediate national rules but of community rules alone.

12 Article 3 of regulation n°1778-77 is therefore of direct and individual concern to those importers and consequently the applications lodged by the subsidiaries, as importers of ntn products, are admissible. As a result the application lodged by ntn against that article is also admissible.

The substance of the application

13 The applicants base their application against article 3 of regulation n°1778-77 on the claim, amongst other complaints against that article, that regulation n°459-68 does not permit the definitive anti-dumping duty to be imposed at the same time as undertakings by the producers concerned to revise prices are accepted. They claim that since the collection of the amounts secured by way of provisional duty was possible only within the context of the introduction of a definitive anti-dumping duty, it follows that article 3 has no legal basis.

14 The council and the intervener reply that as the contested regulation was based not only on the basic regulation but also on article 113 of the treaty the latter provision, which authorizes the council the power to adopt an ad hoc regulation independently of the provisions of regulation n°459-68. The council must therefore be deemed to have exercised that power in the present case. Finally, as the commission ' s investigation discovered a margin of dumping of at least 15% injuring the community industry and as ntn acknowledged by implication by its undertaking that there was a margin of dumping of 20%, it is unsatisfactory to have to recommence the investigation for failure to observe the undertaking and more appropriate in such a case to terminate the suspension of the definitive duty imposed on the basis of well-established facts.

15 Article 14 (1) of the basic regulation, regulation (eec) n°459-68, as amended by regulation (eec) n°2011-73 of the council of 24 july 1973 (official journal 1973, l 206, p. 3) having provided that ' ' if it becomes apparent... That protective measures are unnecessary... The proceedings shall stand terminated ' ', article 14 (2) provides as follows:

' ' (A) The provisions of the foregoing paragraph shall also apply where, during examination of the matter, the exporters give a voluntary undertaking to revise their prices so that the margin of dumping is eliminated or to cease to export the product in question to the community, provided that the commission, after hearing the opinions expressed within the committee, considers this acceptable.

(B) Where the commission, acting in accordance with the provisions of the foregoing subparagraph, accepts the undertaking referred to therein, the investigation of injury shall nevertheless be completed if the exporters so desire or if, after hearing the opinions expressed within the committee, the commission so decides. If the commission, after hearing the opinions expressed within the committee, makes a determination of no injury, the undertaking given by the exporters shall automatically lapse unless the exporters state that it is not so to lapse.

(C) The fact that exporters do not offer to give such undertakings, or do not accept an invitation made by the commission to do so, shall in no way be prejudicial to the consideration of the case. However, the commission shall be free to determine that a threat of injury is more likely to be realized if the dumped imports continue.

(D) Where the commission finds that the undertaking of exporters is being evaded or no longer observed or has been withdrawn and that, as a result, protective measures might be necessary, it shall forthwith so inform the member states and shall recommence the examination of the facts in accordance with article 10.

(E) The provisions of article 18 (1) shall apply mutatis mutandis to the undertakings given by exporters on the basis of this article. Any modification of such undertakings shall be made in accordance with the procedure laid down in this article. ' '

16 On the other hand, where the procedure of examination of the matter is continued, article 17 of that regulation provides as follows:

' ' 1. Where the facts as finally established show that there is dumping and injury, and the interests of the community call for community intervention, the commission shall, after hearing the opinions expressed within the committee, submit a proposal to the council. Such proposal shall also cover the matters set out in paragraph 2.

2. (a) The council shall act by a qualified majority. Where article 15 (1) has been applied, the council shall decide, subject to the provisions of article 15 (2), what proportion of the amounts secured by way of provisional duty is to be definitively collected.

(b) The definitive collection of such amount shall not be decided upon unless the facts as finally established show that there is material injury (and not merely threat of material injury or of material retardation of the establishment of a community industry) or that such injury would have been caused if provisional action had not been taken. ' '

17 In the light of these provisions it is unlawful for one and the same anti-dumping procedure to be terminated on the one hand by the commission ' s accepting an undertaking from the exporter or exporters to revise their prices at the same time as, on the other, by the imposition on the part of the council, at the proposal of the commission, of a definitive anti-dumping duty.

18 It is impossible to accept the argument that in the present case the undertaking was given only after examination of the matter since the examination of the matter ends only when the commission submits its proposals to the council, whilst it is not disputed in the present case that the undertakings were signed on 20 june 1977 before the meeting of the advisory committee provided for in article 12 (2) of regulation n°459-68 held on 21 june 1977. Those undertakings were referred to by the commission in its proposal to the council of 4 july 1977 and considered to be ' ' acceptable ' '. The same undertakings were referred to by the council both in the recitals of the preamble to regulation (eec) n°1778-77 and in the provisions of that regulation as valid existing undertakings. The fact that the commission did not notify its acceptance of the undertaking until 3 august 1977 cannot therefore be considered as an indication that that acceptance was made only ' ' subject to ' ' the suspended imposition of a definitive anti-dumping duty as a penalty.

19 On the contrary, under the above-mentioned article 14, an undertaking by an exporter to revise his prices leads to termination of the proceeding so that it is impossible to apply article 17 of regulation n°459-68. By specifying that termination of the proceeding occurs only if ' ' the commission, after hearing the opinions expressed within the committee, considers this acceptable ' ', article 14 in no way implies that the commission and, where appropriate, the council may follow the procedure provided for until the stage reached in article 17 and accept the undertaking only at the same time as introducing a definitive anti-dumping duty.

20 Such a combination of measures which are by their very nature contradictory would in fact be incompatible with the system laid down in the basic regulation. The argument based on the effectiveness of this combination for the purpose of monitoring the observance of the undertaking and being able to penalize any infringement of it cannot therefore be accepted since the provisions of regulation n°459-68 and in particular those of article 14 (2) (d) provide that in such a case the commission must recommence the examination of the facts in accordance with article 10. This provision implies that the commission may, if it considers that an appropriate situation has arisen, immediately introduce a provisional anti-dumping duty or take other necessary measures but requires nevertheless that those measures should be adopted having regard to the situation caused by the failure to observe the undertaking. In any case regulation n°459-68 aims to ensure that the measures to be taken are adopted in compliance with the formalities and guarantees laid down in article 10.

21 The argument that regulation n°1778-77 constitutes a measure sui generis based directly on article 113 of the treaty and not subject to the provisions of regulation n°459-68 disregards the fact that the whole proceeding in question was carried out within the context of the provisions laid down by that regulation. The council, having adopted a general regulation with a view to implementing one of the objectives laid down in article 113 of the treaty, cannot derogate from the rules thus laid down in applying those rules to specific cases without interfering with the legislative system of the community and destroying the equality before the law of those to whom that law applies.

22 The submission is therefore well founded and it follows that the application directed against article 3 is sound in law.

23 If the result of the undertakings signed by the four major japanese producers was that, under article 14 of the basic regulation, the proceeding should have stood terminated, it follows that there was no need to apply article 17 which empowers the council to order the collection of the amounts secured by way of provisional duty. The wording of article 17 shows moreover that such a decision can be adopted only at the same time as the imposition of a definitive anti-dumping duty.

24 It follows in particular that the commission can propose a decision to collect the amounts secured only if it proposes ' ' community action ' ', in other words, the introduction of a definitive anti-dumping duty. This interpretation is confirmed by article 16 (2) which provides that the commission must submit a proposal to the council for community action at least one month before expiry of the provisional anti-dumping duty. It is also confirmed by the wording of article 17 (2) (b).

25 In fact, under article 19 (3) of the basic regulation a provisional anti-dumping duty can be imposed only in so far as a margin of dumping and material injury have been found. This would seem to have been the intention of the council when it provided in article 3 of the contested regulation that the amounts secured were to be ' ' definitively collected to the extent that they do not exceed the rate of duty fixed in this regulation ' ', in other words the rate of the definitive anti-dumping duty whose application had been suspended.

26 Since article 4 of regulation n°1778-77 regulates only the entry into force of the preceding provisions there is nothing to prevent this regulation ' s being annulled in its entirety.

27 It follows from the preceding statements and from the arguments put forward by the applicants in the parallel applications in cases 118-77, 119-77, 120-77 and 121-77 that regulation n°1778-77 is unlawful and that the application is therefore well founded. It is therefore necessary, in accordance with the applicants ' request, to annul article 3. It should however be observed that the annulment of regulation n°1778-77 in no way affects the undertakings given by the major japanese producers by which those producers undertook to revise their prices so that the margin of dumping is eliminated and those undertakings therefore retain their validity and continue to be subject to the provisions of article 14 (2) in conjunction with article 10 of regulation n°459-68.

Costs

28 The applicants have succeeded in their submissions.

29 It is therefore necessary to order the council to pay the costs in connexion with the application for the adoption of interim measures and the main action, except for the costs caused by the intervention of febma.

30 It is also necessary to order the council to pay the costs incurred by nippon seiko and its subsidiaries as interveners in connexion with the application for the adoption of interim measures.

31 Finally, the intervener febma must be ordered to bear its own costs and those incurred by the applicants on account of its intervention.

On those grounds,

The court

Hereby:

1. Annuls article 3 of regulation (eec) n°1778-77;

2. Orders the council to pay the costs in connexion with the application for the adoption of interim measures and the main action, except for those caused by the intervention;

3. Orders the council also to pay the costs caused by the intervention of nippon seiko and others in connexion with the application for the adoption of interim measures;

4. Orders the intervener febma to bear its own costs and those incurred by the applicants on account of its intervention.