CJEC, July 19, 1983, No 120-83 r

THE COURT

1 According to article 185 of the eec treaty actions brought before the court of justice do not have suspensory effect. The court of justice may, however, if it considers that the circumstances so require, order that application of the contested decision be suspended and prescribe any other interim measure pursuant to article 185 and 186 of the eec treaty.

2 According to established case-law, the adoption of such measures cannot be considered unless the factual and legal circumstances relied upon to obtain them establish a prima facie case for granting them. In addition there must be urgency in the sense that it is necessary for the measures to be issued and to take effect before the decision of the court on the substance of the case in order to avoid serious and irreparable damage to the party seeking them. Finally, they must be provisional in the sense that they do not prejudge the decision on the substance of the case.

3 The decision which is contested in the main proceedings is itself an interim measure which was adopted unter the procedure established by council regulation (eec) n°3017-79 of 20 december 1979 on protection against dumped or subsidized imports from countries not members of the european economic community (official journal, l 339 of 31. 12. 1979, p. 1). According to that regulation, the procedure for fixing an anti-dumping duty is to be implemented in several stages, one of which includes the fixing of a provisional anti-dumping duty on completion of an investigation involving the interested parties.

4 The imposition of that provisional duty is itself carried out in two stages, in the manner provided for by articles 11 and 12 of the abovementioned regulation. Article 11 (1) provides that where preliminary examination shows that dumping or a subsidy exists and that there is sufficient evidence of injury caused thereby, the commission, acting at the request of a member state or on its own initiative, is to impose, if the interests of the community call for intervention to prevent injury being caused during the course of the proceeding, a provisional anti-dumping or countervailing duty.

5 In such cases, entry of the products concerned for community consumption is to be conditional upon the provision of security for the amount of the provisional duty.

6 Article 11 (5) provides that provisional duties are to have a maximum period of validity of four months which may, in certain circumstances, be extended for a further period of two months.

7 According to article 12 (2) (a) and (b), the council must, at the time at which it decides to impose a definitive duty, also decide, on a proposal from the commission and irrespective of the decision which it adopts regarding the imposition of a definitive duty, what proportion, if any, of the provisional duty is to be definitively collected. The definitive collection of the provisional duty may not be decided upon, however, unless the facts as finally established show that there has been dumping or subsidization, and material injury or threat of material injury which would, in the absence of interim measures, have developed into material injury. In the circumstances in this case, that decision will have to be adopted before 17 october 1983 or, if the period is extended, before 17 december 1983.

8 It is in the light of the specific features of the procedure thus established that it is necessary to determine whether the conditions for the suspension of the operation of the contested decision are satisfied.

9 In that respect, the serious nature of the complaints formulated by the applicant cannot be disregarded. Leaving aside the problem of the admissibility of actions brought against decisions of that kind, which has not yet been wholly resolved in the case-law of the court, serious doubt surrounds the question whether, in adopting a constructed value as a basis of reference when prices are apparently determined by market mechanisms, and in calculating that constructed value on the basis of production costs in a non-member country which may itself be in the situation referred to in paragraph (4) of article 2 b, the commission applied the criteria set out in paragraph (5) in an appropriate and reasonable manner. In the light of the explanations provided during the proceedings for the adoption of interim measures, there are also doubts concerning the circumstances which led the commission to fix the rate of the provisional anti-dumping duty at 7%.

10 Since the first condition which must be fulfilled for the grant of interim measures has thus undoubtedly been satisfied, it remains to assess the urgency of, and the need for, the suspension applied for in order to prevent serious and irreparable damage, as indicated above, from being caused to the applicant.

11 According to the applicant that damage consists in the risk that the patterns of trade established by it may be disrupted as a result of the obligation to provide security at the time of entry of the nickel for consumption on the community market during the period of validity of the provisional duty.

12 It must be emphasized that, under the procedure established by regulation (eec) n°3017-79, the council will shortly have to decide both whether to impose a definitive duty and whether to collect definitively the provisional duty. Although that does not in itself exclude the possibility of suspending the operation of the contested measure, the court must, however, in proceedings for the adoption of interim measures, take account of the specific features of the procedure in question and of the powers which the council will have to exercise within the prescribed period, after it has been given full information, in particular in the light of what has emerged during these proceedings for the adoption of interim measures.

13 In the meantime, the commission is under an obligation not only to continue its investigation, in order to enable the council to decide whether or not dumping is being practised, but also, in view of the specific features of this case, to monitor from day to day any changes in prices on the market of the product which is subject to the provisional duty in order to determine whether it is necessary to maintain that duty or the rate thereof. The commission must be ordered to act in accordance with that obligation.

14 For the rest, it appears from the information provided during the proceedings for the adoption of interim measures that, in view of the characteristic features of the market of the product in question, the risk of any lasting disruption of the patterns of trade as a result of the maintenance of the provisional duty is small. It has not been established that the applicant will be unable to avoid such damage by adopting measures consistent with the obligation to cooperate which is incumbent upon it in order to mitigate the alleged damage.

15 It follows from those considerations that the obstacle which prevents the applicant from fulfilling its sales potential is in substance limited to the burden constituted by the provision of security. The cost of that security may, according to the information provided by the parties, be estimated at 1% to 2% of the amount of the provisional duty, payment of which is to be guaranteed. Even if the applicant, which is the sole exporter of soviet production, were to undertake provisionally to bear the costs of that security in order to be able to market its products during the period in which the provisional duty is in force, that disadvantage cannot constitute serious and irreparable damage such as would permit the suspension of a decision adopted in the context of a complex economic situation. Any damage which may occur can, if appropriate, be made good in the context of the action for compensation brought by the applicant.

16 Accordingly, for the rest, the application must be dismissed, and, at the present stage of the proceedings, it is appropriate to reserve the costs.

On those grounds,

The president,

By way of interim decision,

Hereby orders as follows:

1. The commission is under an obligation to monitor from day to day any changes in prices on the market of the product which is subject to the provisional duty in order to determine whether it is necessary to maintain that duty or the rate thereof;

2. For the rest, the application is dismissed;

3. The costs are reserved.