CJEC, February 21, 1984, No 239-82

The court

1 By application lodged at the court registry on 20 september 1982, Allied Corporation, a corporation governed by the law of the state of new jersey (united states of america), having its office in morristown (hereinafter referred to as ' ' allied ' '), demufert sa, a company governed by belgian law, having its registered office in brussels and now in liquidation (hereinafter referred to as ' ' demufert ' '), and transcontinental fertilizer company, a corporation governed by the law of the state of pennsylvania (united states of america), having its office in philadelphia (hereinafter referred to as ' ' transcontinental ' '), brought an action under the second paragraph of article 173 of the eec treaty in which they request the court to declare void commission regulation (eec) n°1976-82 of 19 july 1982 imposing a provisional anti-dumping duty on certain imports of certain chemical fertilizer originating in the united states of america (official journal 1982, l 214, p. 7) and commission regulation (eec) n°2302-82 of 15 august 1982 (official journal 1982, l 246, p. 5) amending regulation n°1976-82 and adopted pursuant to 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 1979, l 339, p. 1), and seek an order for damages against the commission.

2 By application lodged at the court registry on 15 october 1982, kaiser aluminium and chemical corporation, a corporation governed by the law of the state of delaware (united states of america), having its office in wilmington (hereinafter referred to as ' ' kaiser ' '), brought an action for the same relief as that sought by the other applicants. The applications were joined for the purposes of the procedure and the judgment by order of 15 december 1982.

Legislative background and purpose of the applications

3 It is necessary to bear in mind that, following a complaint submitted by the organization representing the european nitrogen and phosphate fertilizer industry, the commission initiated a proceeding in 1980 concerning imports of certain chemical fertilizer originating in the united states of america and adopted regulation (eec) n°2182-80 (official journal 1980, l 212, p. 43), imposing a provisional anti-dumping duty on the products in question.

4 By decision n°81-35-eec of 9 february 1981 (official journal 1981, l 39, p. 35), the commission accepted the undertakings given in connection with the anti-dumping proceeding by the applicants allied, transcontinental and kaiser, to increase their prices to a level eliminating the dumping margins which had been established at 6.5% in respect of the firt two applicants and at 5% in respect of kaiser. By regulation (eec) n°349-81 of the same date (official journal 1981, l 39, p. 4), the council imposed a definitive anti-dumping duty on urea ammonium nitrate solution fertilizer falling within subheading ex 31.02 c of the common customs tariff and corresponding to nimexe code ex 31.02-90, originating in the united states of america and fixed the rate of duty at 6.5% on the basis of the customs value. The 23rd recital in the preamble to that regulation states that allied, kaiser and transcontinental have voluntarily undertaken to increase their prices to a level eliminating the dumping margins found and that the commission has accepted those undertakings. Accordingly, article 2 of that regulation exempts from anti-dumping duty fertilizer exported by certain united states undertakings, including allied, kaiser und transcontinental.

5 It is clear from the documents before the court that the commission, in the light of the applications for review submitted to it, in the first place by a ' ' major united states exporter ' ' and by demufert and subsequently by the organization representing the european fertilizer industry, published on 16 july 1982 a notice of a review of the definitive anti-dumping duty on imports of certain chemical fertilizer originating in the united states of america (official journal 1982, c 179, p. 4).

6 Allied and transcontinental withdrew their undertakings at the same time by letters of 7 june and 2 july 1982 respectively, whereupon the commission adopted regulation n°1976-82 imposing a provisional anti-dumping duty on fertilizer exported by those two undertakings at the rate of 6.5% of the customs value. Following kaiser ' s withdrawal of its undertaking, by telex message of 23 july 1982, the commission adopted regulation n°2302-82 amending regulation n°1978-82 so as to confirm the levying of an anti-dumping duty of 6.5% on exports by allied and transcontinental and to impose a duty of 5% on exports by kaiser. Those are the two regulations which are at issue in this case.

Admissibility

7 The commission raises an objection of inadmissibility against the application lodged by demufert. The commission contends that demufert, in its capacity as an independent importer, has no locus standi, under the provisions of the second paragraph of article 173 of the eec treaty, to apply for a declaration that two regulations whose validity is contested are void. According to the commission, the anti-dumping duty imposed by the regulations at issue - which merely supplement regulation n°349-81 imposing a definitive anti-dumping duty - is of concern to demufert only in its objective capacity as an importer. As such, demufert does not therefore according to the consistent case-law of the court (see, most recently, the judgment of 6 october 1982 in case 307-81, alusuisse italia, (1982) ecr 3463, paragraph 9 of the decision), meet the requirement, stipulated by the second paragraph of article 173, that the measures in question should be of direct and individual concern to it.

8 As far as the other applicants are concerned, the commission merely expresses doubts as regards the admissibility of their applications. In the first place, it concedes that there is a very specific reference to the applicants in question both in regulation n°349-81 and in the contested regulations, which were adopted following the withdrawal of the undertakings given individually by those applicants. The commission also acknowledges that, in their capacity as producers and exporters, those undertakings are not guaranteed legal protection in the member states of the community and since the sole factor which gives rise to the collection of anti-dumping duty is importation, the applicants may bring an action before the court only through undertakings which import their products. Secondly, however, the commission maintains that the sole effect of the contested regulations is to bring the applicants, following the withdrawal of their undertakings, within the scope of the general system established by regulation n°349-81, a measure which is in substance unquestionably a regulation inasmuch as it applies to all imports of the product in question originating in the united states. From the point of view of avoiding a needless duplication of legal remedies, the commission considers it undesirable to make available a means of redress parallel to the proceedings which may be instituted in the national courts against the collection of anti-dumping duty in the wake of complaints by importers. Finally, the commission draws attention to the ' ' unusual ' ' consequences which would follow if the applications were declared admissible, since the effect of such a declaration would be to ascribe a dual character to anti-dumping measures, inasmuch as the same measures would have to be classified as ' ' decisions ' ' in relation to certain undertakings and as ' ' regulations ' ' in relation to all the other undertakings.

9 During the oral procedure, the commission, after indicating once again its opposition to the admissibility of demufert ' s application, informed the court that, on balance, it was in favour of the admissibility of direct actions brought by undertakings from non-member countries and, in any event, of those brought by the applicant undertakings on the ground that they were expressly mentioned in the statement of the reasons for, and in the provisions of, the contested measures. The commission considers that such an approach would have a beneficial effect on the interests of community undertakings in non-member countries in the event of the initiation of anti-dumping proceedings against them, particularly in the united states of america where the means of redress are to a large extent available to undertakings from other countries. The commission takes the view that, in the interests of reciprocity, it is appropriate to provide similar guarantees under the judicial system of the community.

10 The questions of admissibility raised by the commission must be resolved in the light of the system established by regulation n°3017-79 and, more particularly, of the nature of the anti-dumping measures provided for by that regulation, regard being had to the provisions of the second paragraph of article 173 of the eec treaty.

11 Article 13 (1) of regulation n°3017-79 provides that ' ' anti-dumping or countervailing duties, whether provisional or definitive, shall be imposed by regulation ' '. Although it is true that, in the light of the criteria set out in the second paragraph of article 173, such measures are, in fact, as regards their nature and their scope, of a legislative character, inasmuch as they apply to all the traders concerned, taken as a whole, the provisions may none the less be of direct and individual concern to those producers and exporters who are charged with practising dumping. It is clear from article 2 of regulation n°3017-79 that anti-dumping duties may be imposed only on the basis of the findings resulting from investigations concerning the production prices and export prices of undertakings which have been individually identified.

12 It is thus clear that measures imposing anti-dumping duties are liable to be of direct and individual concern to 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.

13 As the commission has rightly stated, to acknowledge that undertakings which fulfil those requirements have a right of action, in accordance with the principles laid down in the second paragraph of article 173, does not give rise to a risk of duplication of means of redress since it is possible to bring an action in the national courts only following the collection of an anti-dumping duty which is normally paid by an importer residing within the community. There is no risk of conflicting decisions in this area since, by virtue of the mechanism of the reference for a preliminary ruling under article 177 of the eec treaty, it is for the court of justice alone to give a final decision on the validity of the contested regulations.

14 It follows that the applications lodged by allied, kaiser and transcontinental are admissible. All three applicants gave an undertaking under article 10 of regulation n°3017-79, they were accordingly referred to individually in article 2 of regulation n°349-81 and, after withdrawing their undertakings, their individual circumstances formed the subject-matter of the two regulations contested in the applications.

15 However, the position is different in the case of demufert, since that applicant is an importer established in one of the member states and is not referred to in any of the measures which are contested in the applications before the court. As such, therefore, demufert is concerned by the effects of the contested regulations only in so far as it comes objectively within the scope of the provisions of those regulations. The uncontested fact that demufert acted as importing agent for allied does not alter that conclusion. In contrast to the situation considered by the court in its judgment of 29 march 1979 in case 113-77 (ntn toyo bearing company ltd and others, (1979) ecr 1185, paragraph 9 of the decision), in the present case the existence of dumping has been established, as is stated in the 10th recital in the preamble to regulation n°349-81, by reference to the export prices of american producers and not by reference to the retail price charged by european importers, with the result that the findings relating to the existence of dumping are not of direct concern to demufert, whereas they are of direct concern to the producers and exporters. It must be pointed out that, in so far as it was compelled to pay anti-dumping duties, it is open to the applicant to bring an action in the competent national court in the context of which it can put forward its argument against the validity of the regulations at issue.

16 It follows that the application submitted by demufert must be declared inadmissible.

Substance

17 The applicants put forward two groups of submissions in order to contest the validity of the regulations which subjected the importation of their products to anti-dumping duties. In the first place, they consider that the statements of the reasons on which the contested regulations were based are deficient in various respects. Secondly, they consider that the commission has failed to take account of the fact that after anti-dumping duties were imposed by regulation n°349-81 the situation changed in various respects and the commission was therefore wrong in accepting that dumping was still being practised.

The submission concerning the deficiency of the statements of reasons

18 The applicants contend that, after they withdrew their undertakings, the commission adopted regulations n°1976-82 and n°2302-82 imposing an anti-dumping duty on them on purely formal grounds, without having conducted a fresh investigation to make sure that the levying of that duty from them was justified in relation to them. They point out in particular that, in the preamble to regulation n°2302-82, the commission refers to the ' ' likelihood ' ' that following the withdrawal of its undertaking the fertilizer produced by kaiser was imported at prices below those agreed in its undertaking and therefore at levels so low as to constitute dumping.

19 That contention must be assessed in the light of the requirements laid down by article 10 (6) of regulation n°3017-79, which it is appropriate to set out in full:

' ' Where an undertaking has been withdrawn or where the commission has reason to believe that it has been violated and that further investigation is warranted, it shall forthwith inform the member states and reopen the proceeding. Furthermore, where the community interests call for such intervention, it shall immediately apply provisional measures where warranted using the information available. ' '

20 That provision must be interpreted in the light of the 15th recital in the preamble to that regulation, according to which ' ' it is necessary that the community ' s decision-making process permit rapid and efficient action, in particular through measures taken by the commission, as for instance the imposition of provisional duties ' '.

21 It follows from the aforementioned provision that where an undertaking has been withdrawn the commission must promptly apply provisional measures if it considers that the interests of the community call for such action. By specifying that such measures are to be introduced by the commission ' ' using the information available ' ', the regulation makes it clear that the commission is not required to conduct a further investigation but must normally take a decision on the basis of the information which was at its disposal when the undertakings which have been withdrawn in the meantime were given. Since the very fact that an undertaking is given warrants the assumption that dumping actually exists, the commission cannot be required to conduct a further investigation when such an undertaking is withdrawn. In such circumstances, it is quite normal that the commission should extend to the undertakings in question the provisions which would have been applicable to them if no undertaking had been given.

22 If a trader, when withdrawing his undertaking considers that there are grounds justifying a review of his position and a grant of exemption from any anti-dumping duty in spite of the withdrawal of such undertaking, it is incumbent on him to submit to the commission appropriate evidence in support of his view.

23 It is not apparent from the documents before the court that, at the material time, the applicants submitted fresh evidence to the commission. The commission cannot therefore be criticized for having taken into account the interests of the community and for having summarily reappraised the situation when it imposed on the applicants the anti-dumping duties which seemed to be justified in the course of the investigation which resulted in the adoption of regulation n°349-81.

24 As regards the use of the term ' ' likelihood ' ' in the preamble to regulation n°2303-81 in relation to kaiser, it is sufficient to point out that, since a provisional duty was involved, the commission was entitled, in the light of the facts previously established, to confine itself to taking into consideration the mere possibility of imports in order to impose a duty corresponding to the dumping margin previously established, with a view to preventing sales at abnormally low prices.

25 Those submissions must therefore be rejected.

New facts relied upon by the applicants

26 The applicants contend that, after the adoption of regulation n°349-81, a number of new facts arose which the commission failed to take into account when it adopted the contested measures. They refer in this connection to three separate sets of circumstances:

(a) The adoption of a series of decisions on 7 december 1981 by the french minister for economic affairs and finance following an opinion of the committee on competition relating to the state of competition with regard to the production and marketing of fertilizer (bulletin officiel de la concurrence et de la consommation (official gazette on competition and consumption), n°23, 12 december 1981) which revealed the existence at the material time of a restrictive agreement on prices on the french market in fertilizer. Furthermore, the applicant kaiser refers to the price-freezing measures adopted on 14 june 1982 by the french government. The applicants consider that in those circumstances the selling prices of fertilizer on the french market were distorted with the result that it is no longer possible to establish the existence of dumping;

(b) The consistent increase in the value of the dollar on the foreign exchange market resulting in a continuing increase in the cost of imports from the united states of america on the european market;

(c) The decline at the material time of imports of liquid fertilizer on the european market. Kaiser, in particular, states that its exports to the community have ceased altogether.

27 Those arguments call for an initial observation of a general nature. According to article 2 of regulation n°3017-79, the dumping margin is established by means of a comparison between the export price of the product exported to the community and the ' ' normal value ' ' of the product in question, that is to say, primarily, the price paid for the like product intended for consumption in the country of origin. The applicants have not submitted any evidence which might furnish a basis for the view that there have been any variations in the dumping margin, defined in the above terms, since the entry into force of the definitive anti-dumping duty imposed by regulation n°349-81. In particular, it must be pointed out that, since all the prices used to calculate the dumping margin in the present case are expressed in dollars, fluctuations in that currency in relation to european currencies have no effect on the determination of the dumping margin. It is therefore clear that the ' ' new facts ' ' relied upon by the applicants are relevant only as regards the determination of ' ' injury ' ', within the meaning of article 4 of regulation n°3017-79, caused to the european producers.

28 As far as the measures adopted by the french government are concerned, the commission has convincingly demonstrated that those measures did not exert a decisive influence on the assessment of the question whether injury was caused to the european fertilizer industry. Without contesting the fact that the french market constitutes the most important outlet for the imports in question in the community, the commission maintains that it established the existence of injury as a result of investigations carried out independently of those conducted by the french authorities. It points out that the opinions of the committee on competition and the decisions adopted in pursuance thereof by the french minister for economic affairs and finance are concerned with the fertilizer market in its entirety, not with the specific market in relation to which the practice of dumping was established, and that they relate to a period which coincides only partially with the period in respect of which the investigations which resulted in the adoption of the contested measures were conducted.

29 As regards the increase in the value of the dollar and the decline in imports, the commission draws attention to the fact that, although it is true the volume of imports of nitrogen solution fertilizer originating in the united states into the community fell in 1981-82, imports of that product increased substantially in the first quarter of 1982, in spite of the increase in the value of the dollar. It follows that this factor has not had the effect of compensating for the injury caused to european producers.

30 The arguments put forward by the applicants are not of such a nature as to constitute proof that the commission committed a number of manifest errors in its assessment of the question whether injury was caused to the european fertilizer industry as a result of the practice of dumping, established by reference to the criteria laid down by article 2 of regulation n°3017-79. Consideration of the facts put forward by the applicants therefore warrants the conclusion that the commission could properly take the view that, after the applicants had withdrawn their undertakings, the interests of the community called for the adoption of provisional measures forthwith, in order to prevent injury to community producers.

31 Consequently those submissions must also be rejected.

32 It is clear from all the foregoing considerations that the applications of allied, transcontinental and kaiser must be dismissed as unfounded. Consequently, the applications for damages, which are linked to the applications for a declaration of nullity, are devoid of purpose and must also be dismissed.

Costs

33 Under article 69 (2) of the rules of procedure, the unsuccessful party is to be ordered to pay the costs. Since the applicants have been unsuccessful in their submissions, they must be ordered to pay the costs.

On those grounds,

The court

Hereby:

1. Dismisses the application of michel levy morelle, avocat, acting as liquidator of demufert sa, as inadmissible and the applications of Allied Corporation, transcontinental fertilizer company and kaiser aluminium and chemical corporation as unfounded.

2. Orders the applicants to bear the costs.