CJEC, March 29, 1979, No 119-77

THE COURT

1 By application of 7 october 1977, received at the court registry on 10 october 1977, the applicants, nippon seiko k.k. (hereinafter referred to as ' ' NSK ' '), NSK bearings europe limited, NSK Kugellager GMBH and NSK France (hereinafter referred to as ' ' the subsidiaries ' ') brought before the court of justice under article 173 of the treaty an action against the council and the commission on council regulation (eec) no 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).

2 The action is primarily for the annulment of regulation no 1778-77, in the alternative for its annulment in so far as it affects the applicants and, in the further alternative, for the annulment only of article 3 of the regulation, which provides for the definitive collection of the amounts secured by way of provisional duty.

3 By the same application, the applicants claimed under articles 178 and 215 of the treaty that the council and the commission should be ordered to make good the damage allegedly suffered by the subsidiaries.

4 By application of 17 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 16 november 1977.

5 As early as the beginning of 1977, the commission, under article 10 of regulation (eec) no 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.

6 Pursuant to article 10 in conjunction with article 15 of regulation no 459-68, the commission introduced by regulation (eec) no 261-77 of 4 february 1977 (official journal 1977, l 34, p. 10) a provisional anti-dumping duty of 20% 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) no 944-77 of 3 may 1977 (official journal 1977, l 112, p. 1) under article 16 of the basic regulation, regulation no 459-68.

7 During the procedure initiated by the commission the four major japanese producers, including NSK , gave voluntary undertakings signed on 20 july 1977 under article 14 (2) of regulation no 459-68 to revise their prices so that the margin of dumping might be eliminated; these undertakings resulted in an increase of 20% in their export prices.

8 Council regulation (eec) no 1778-77 of 26 july 1977 then introduced, under article 17 of regulation no 459-68, a definitive anti-dumping duty of 15% on the products in question, suspended the application of that duty, and provided, 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 for annulment

9 The defendant institutions have raised an objection of inadmissibility claiming that the contested measure is 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. They claim that in the present case this is not a decision adopted in the guise of a regulation since regulation no 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 no 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.

10 The applicants reply that the contested measure, 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 no 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 the fact that article 1 (2) thereof suspends the application of the imposed anti-dumping duty on the grounds, stated in the penultimate recitals in the preamble, that the four major producers have given undertakings to revise their future prices. This specific nature is also confirmed by article 3 of regulation no 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 measure 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.

11 Before commencing the examination of the admissibility of the application, it should be stated that NSK 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 no 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.

12 Regulation no 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.

For the purpose of judging the admissibility of the application, these three articles should be examined separately.

13 It emerges from the two recitals before last in the preamble to regulation no 1778-77 that article 1 (2) provides for the suspension of the definitive anti-dumping duty because ' ' the four major japanese producers have given undertakings to the commission to revise their future prices ' '. ' ' Whereas, however, it is necessary that the commission closely monitor the observance of the undertakings and take immediate action if there is any violation or evasion or if the undertakings are withdrawn ' ', it is provided in article 2 of the regulation that ' ' the commission shall, in collaboration with the member states, closely monitor the observance of the undertakings given by the major japanese... Producers to revise their prices ' ' and that it ' ' shall forthwith... Terminate the suspension ' ' if it finds ' ' that these undertakings are being evaded, are not being observed or have been withdrawn ' '. It follows from these recitals that, whatever character the imposition of a suspended anti-dumping duty may present in other cases, in the present case the measure in question is intended to ensure the strict observance of the stated undertakings by the creation of an additional penalty. Thus, although drafted in general terms, article 1 in fact concerns only the situation of the major japanese producers, including NSK , who are directly and individually concerned by reason of the undertakings which they have given to revise their prices. Hence the applicants ' application against articles 1 and 2 is admissible.

14 As regards the admissibility of the application in so far as it is directed against article 3, that article constitutes a collective decision relating to named addressees. 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 defendant institutions and the intervener that only implementing measures adopted by the national authorities are of direct concern to the importers and that these importers shall 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.

15 Article 3 of regulation no 1778-77 is therefore of direct and individual concern to those importers and consequently the applications lodged by the subsidiaries, as importers of NSK products, are admissible. As a result the application lodged by NSK against that article is also admissible.

The substance of the application for annulment

16 As regards articles 1 and 2 of regulation no 1778-77, the applicants claim in substance, amongst other complaints against the reasoning on which that regulation is based and the procedure which led up to it, that regulation no 459-68 does not permit a definitive anti-dumping duty to be imposed at the same time as undertakings by the producers concerned to revise prices are accepted.

17 The defendant institutions 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 to take measures to protect trade in case of dumping, gives the council the power to adopt an ad hoc regulation independently of the provisions of regulation no 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 NSK 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.

18 Article 14 (1) of the basic regulation, regulation (eec) no 459-68, as amended by regulation (eec) no 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. ' '

19 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. ' '

20 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 importation on the part of the council, at the proposal of the commission, of a definitive anti-dumping duty.

21 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 no 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 ' '. As has been pointed out above, the same undertakings were referred to by the council both in the recitals in the preamble to regulation (eec) no 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.

22 On the contrary, under the above-mentioned article 14 an undertaking by an exporter to revise his prices leads to termination of the proceedings so that it is impossible to apply article 17 of regulation no 459-68. By specifying that termination of the proceedings 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.

23 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 no 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 no 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.

24 The argument that regulation no 1778-77 constitutes a measure sui generis based directly on article 113 of the treaty and not subject to the provisions of regulation no 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 the law applies.

25 The application is therefore well founded in this respect.

26 As regards the application in so far as it is directed against article 3 of regulation no 1778-77, in the circumstances the judgment on article 3 is the same as that on articles 1 and 2 of the regulation. 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.

27 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).

28 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.

29 The application is therefore well founded in this respect as well. Since article 4 of regulation no 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.

30 It follows from the preceding statements and from the arguments put forward by the applicants in the parallel applications in cases 113-77, 118-77, 120-77 and 121-77 that regulation no 1778-77 is unlawful and that the application is therefore well founded. It is therefore necessary, in accordance with the applicants ' request, to annul the regulation. It should however be observed that the annulment of regulation no 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 no 459-68.

The action for damages

31 The applicants allege that they have suffered damage as a result of community action and they claim compensation for it under article 178 and 215 of the treaty. First they claim that they have had to pay certain specified amounts as provisional anti-dumping duty and incur other expenditure.

32 However, as regards the amounts already paid as provisional duty, the annulment of article 3 of regulation no 1778-77 has removed the obligation to pay them. As regards the other expenditure, it is to be observed that under article 15 of regulation no 459-68, the commission is empowered to impose a provisional anti-dumping duty ' ' where preliminary examination of the matter shows that there is dumping and there is sufficient evidence of injury and the interests of the community call for immediate intervention ' '. That provision leaves the commission a considerable margin of discretion, and the applicants have not produced evidence to show that, in the exercise of that discretion, the commission was guilty of errors or illegalities such as to give rise to liability on the part of the community.

33 Secondly the applicants claim that they have suffered loss of sales, and hence of profit, owing to the allegedly unlawful requirements imposed on them by article 5 of the undertaking given by NSK to revise its prices. That article obliges NSK to take the necessary steps to extend the revision of prices which it undertook to apply to its products of japanese origin to its products of origin other than japanese, and this makes it increase even the prices of products manufactured within the community, in particular in the factories of the subsidiary NSK bearings europe limited.

34 The applicants have succeeded in their action for annulment because of the undertaking given by NSK and accepted by the commission. Therefore they cannot rely upon the alleged unlawfulness of that undertaking in order to call in question the liability of the community.

35 Accordingly the action for damages must be dismissed.

Costs

36 NSK has succeeded in its application for annulment. On the other hand, the action for damages has been dismissed.

37 In these circumstances it is necessary to order the defendant institutions to bear their own costs, as well as all the costs in connexion with the application for the adoption of interim measures and two-thirds of the costs of the main action incurred by the applicants, except for the costs caused by the intervention.

38 The intervener must be ordered to bear its own costs and two thirds of those incurred by the applicants on account of its intervention.

39 The decision on the costs caused by the intervention of the applicants in the application for the adoption of interim measures in case 113-77 r (ntn toyo v council) was reserved for the final judgment in the present case. By reason of the related subject-matter that decision should be given in the court ' s final judgment in case 113-77.

On those grounds,

The court

Hereby:

1. Annuls council regulation no 1778-77 of 26 july 1977 concerning the application of the anti-dumping duty on ball bearings and tapered roller bearings, originating in japan;

2. Dismisses the action for damages;

3. (a) Orders the defendants to bear their own costs, all the costs in connexion with the application for the adoption of interim measures in this case and two-thirds of the costs of the main action incurred by the applicants, except for those caused by the intervention.

(b) Orders the intervener febma to bear its own costs and two-thirds of those incurred by the applicants on account of its intervention.