CJEC, October 18, 1985, No 250-85 r

The court

1 By an application dated 29 august 1985, brother industries requested the court, primarily, to suspend as regards it the effect of council regulation no 1698-85 of 19 june 1985 (official journal 1985, l 163, p. 1), imposing a definitive anti-dumping duty on imports of electronic typewriters originating in japan and ordering the definitive collection of the provisional anti-dumping duties imposed by commission regulation no 3643-84 of 20 december 1984 (official journal 1984, l 335, p. 43), in so far as it is concerned by that regulation, until the court has given judgment on the main application or, in the alternative, to order any additional measures which the court considers appropriate.

2 That application, which was lodged at the court registry on 29 august 1985, was made under articles 185 and 186 of the eec treaty and article 83 of the rules of procedure.

3 The applicant refers to the application for the annulment of the aforesaid regulation no 1698-85, which application it lodged at the court registry on 12 august 1985.

4 By an order dated 2 october 1985 the commission was granted leave, under the first paragraph of article 37 of the statute of the court of justice of the eec, to intervene in case 250-85 r in support of the conclusions of the defendant. It did not, however, submit written observations. By an order of the same date, cetma was also granted leave, under the second paragraph of article 37 of the statute, to intervene in case 250-85 r in support of the conclusions of the defendant.

5 By two telex messages of 9 october 1985 the court put questions to cetma and the commission. Cetma was requested to submit its replies in writing by 9.30 am on 14 october 1985, and the commission was requested to reply at the hearing on the same date.

6 The defendant submitted its written observations on 13 september 1985. The parties presented oral argument on 14 october 1985.

7 It is necessary to set out the stages which led up to the council ' s adoption of regulation no 1698-85. On 15 february 1984, a complaint was lodged with the commission by cetma alleging the dumping of typewriters originating in japan, including those of brother limited. On the basis of the investigations conducted as a result of that complaint, the commission adopted, on 20 december 1984, regulation no 3643-84 (official journal 1984, l 335, p. 43). Article 1 (3) of that regulation imposed a provisional anti-dumping duty of 43.7% on typewriters exported by the applicant, a duty which is the subject of an application for annulment pending before the court of justice. On 19 june 1985 the council adopted regulation no 1698-85. Article 1 (4) of that regulation imposes a definitive anti-dumping duty of 21% on typewriters exported by the applicant and article 2 provides for the definitive collection of the provisional anti-dumping duties which had been imposed by regulation no 3643-84.

8 The applicant claims that, if it is not to suffer serious and irreparable damage, the effect of that regulation must be suspended as regards it until the court has given judgment on the main application.

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

10 As a condition for enabling such measures to be granted, article 83 (2) of the rules of procedure provides that an application for interim measures must state the circumstances giving rise to urgency and the factual and legal grounds establishing a prima facie case for the interim measures applied for.

11 In that regard the applicant relies upon four grounds which, in its view, establish a prima facie case for the interim measures which it seeks. First, it considers that article 2 (9) of council regulation no 2176-84 of 23 july 1984 (official journal 1984, l 201, p. 1), the basic regulation on dumping, was not complied with, since the normal volume and the export price were not compared at the same level of trade. The applicant also considers that article 2 (10) c was not complied with, since in determining the normal value no allowance was made so as to enable an equitable comparison to be made between domestic prices and the export price. The applicant also considers that the calculations on the basis of which the community institutions added a profit of 71.1% in determining the normal value of the three models not sold in japan and the way in which they assessed the damage caused to the european industry were also vitiated by serious omissions.

12 The council considers that the four grounds relied upon by the applicant clearly exceed the limits of an application for interim measures; they prejudge the substance of the case and not one of them is capable of establishing the existence of a prima facie case. It also considers that the circumstances relied upon by the applicant to prove the existence of irreparable damage, such as a reduction in the volume of sales and in the applicant ' s market share and the damage to its distribution network, are inherent in the introduction of an anti-dumping duty and do not prove irreparable damage giving rise to urgency and thus establishing a case for the grant of the interim measures applied for. The council also argues that it is essential, as is clear from the cases decided by the court, and in particular from the order of 17 december 1984 in case 258-84 r nippon seiko kk v council, to balance the applicant ' s interests against the damage that would be caused to the european industry if the interim measures applied for were granted. It considers that the interests of the european industry would be seriously harmed if the interim measures requested by the applicant were granted.

13 In order to establish a prima facie case, the applicant refers in its application for interim measures to various factual and legal grounds which are also set out in its main application. Both the council and the commission state in their written observations that they do not consider it necessary in interim proceedings to set out their views on those grounds since that would entail adopting a position on the substance of the case. At the hearing on 14 october 1985 the two community institutions, particularly the commission, stressed that they did not consider that they had committed any error in calculating the dumping margin and assessing the damage caused to the european industry by japanese imports and maintained that they had correctly applied the provisions of the regulation applicable in this case, regulation no 2176-84.

14 In that regard, and in the light of the arguments put forward by the applicant, it may be accepted that the applicant had put forward pertinent arguments which it will be necessary to examine in greater detail in the proceedings relating to the main application and that the institutions have not, as a result of the position adopted by them, as mentioned above, attempted, or wished to make an attempt, to show that the grounds relied upon by the applicant are not pertinent. Subject to what is said below in paragraph 17, the grounds relied upon by the applicant may therefore be regarded as establishing a prima facie case for the interim measures applied for.

15 While the applicant in the present case may be considered to have put forward factual and legal grounds which may be regarded as establishing a prima facie case for suspending application of the regulation in dispute, the court must also assess the urgency of the suspension requested and the need for it for the purposes of avoiding serious and irreparable damage to the applicant.

16 In that regard, the parties have taken opposing views and have submitted figures on the level of prices and market shares of the european industry and its japanese competitors in support of their respective cases. The figures submitted by the council, the commission and cetma do not correspond with those submitted by the applicant. In interim proceedings it is impossible for the president of the court, without prejudging the substance of the case, to accept figures submitted by one party in preference to those submitted by the other, unless, as is not the case here, there are other factors weighing in favour of one party ' s view. He is, likewise, faced with the same impossibility when it comes to determining whether the export price and normal value were compared at the same level of trade.

17 Moreover, for the purposes of the application of articles 185 and 186 of the eec treaty, it is necessary to balance all the different interests concerned. In that regard, the community institutions and cetma have argued that the damage suffered by the community industry as a result of undercutting by the applicant in the price of its electronic typewriters was considerable, and that suspension of the definitive anti-dumping duties would undoubtedly bring about the destruction of part of the community industry. In the absence of reliable and uncontested evidence to the contrary, it must be accepted that the adoption of the interim measures applied for could cause appreciable damage to the european industry.

18 From the circumstances set out above and on the basis of the principle that in case of doubt an applicant must prove that his allegations are well founded, it appears that the applicant has not adduced adequate evidence that it would suffer serious and irreparable damage establishing the urgency of the interim measures which it seeks.

On those grounds,

The president,

By way of interim decision,

Hereby orders as follows:

(1) The application for the adoption of interim measures is dismissed;

(2) Costs are reserved.