CJEC, 6th chamber, February 24, 1987, No 312-84

THE COURT (sixth chamber)

1 By an application lodged at the court registry on 28 december 1984, Continentale Produkten Gesellschaft Ehrhardt-Renken (GmbH & Co.), whose registered office is at hamburg, brought an action under the second paragraph of article 173 of the eec treaty for a declaration that commission decision k(84)1605 of 29 october 1984, is void in part. It claims that the decision should be declared void in so far as the commission granted only in part, in respect of a sum of dm 1*638.01, its application submitted under article 15 of the basic anti-dumping regulation, council regulation no 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), for the reimbursement of anti-dumping duties which it had paid, in respect of yarns imported between 15 april and 16 july 1982, pursuant to council regulation no 789-82 of 2 april 1982 imposing a definitive anti-dumping duty on imports of certain cotton yarns originating in turkey (official journal 1982, l 90, p. 1). In the alternative, the applicant claims that the court should find that the decision is null in part (teilweise nichtig feststellen); in the further alternative it asks the court to amend the decision and declare that the commission is bound to pay to it, in addition to the amount recognized as refundable, the sum of dm*675*144.56 together with interest on the full amount at the rate of 9% from 24 march 1982, the date on which the application for a refund was first submitted; lastly, the applicant claims in the further alternative that the court should order the commission to adopt a decision declaring that the competent authorities of the federal republic of germany must grant its application for a refund in its entirety.

2 Reference is made to the report for the hearing for the background to the dispute and the submissions and arguments of the parties, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the court.

Submission concerning the lack of competence of the commission

3 The applicant argues that the commission was not competent to adopt the contested decision. It claims that its application for a refund was submitted to the competent german authority on 26 july 1982; on that date, the application was governed by article 15 of regulation no 3017-79, which empowered the national authorities to decide on applications for refunds. The applicant considers that although it is true that before the adoption of the contested measure on 29 october 1984 a new basic anti-dumping regulation had entered into force, namely council regulation no 2176-84 of 23 july 1984 (official journal 1984, l 201, p. 1), article 16 of which authorizes the commission to decide on applications for a refund, the national authorities should nevertheless retain the powers which were originally conferred upon them to decide on applications submitted under the old system. The applicant claims that the fact that the second paragraph of article 19 of regulation no 2176-84 provides that the regulation applies "to proceedings already initiated" at the date of its entry into force is unimportant because it had a "vested right" to have its application examined by the national authorities, who were competent at the date on which the application was submitted.

4 In that regard it must be pointed out that in general provisions amending an administrative procedure and appointing the competent authorities are applicable to pending proceedings, and the persons concerned may not claim to have a "vested right" to have their case dealt with by the authorities upon whom competence was conferred by the previous provisions. That rule is expressly reproduced in the second paragraph of article 19 of regulation no 2176-84, which states, without providing for any exception, that the provisions of the regulation are to apply to proceedings already initiated at the date of its entry into force. Consequently, the applicant' s submission is unfounded and must be rejected.

5 In its reply the applicant claims that the commission deliberately delayed the examination of its application until regulation no 2176-84 had entered into force. An examination of the documents before the court does not, however, disclose any evidence that that was the case and the applicant has not put forward any factor capable of substantiating its allegation. The argument must therefore be rejected.

The other submissions

6 The applicant then puts forward three groups of submissions challenging the contested measure. In certain submissions it disputes the legality of regulation no 789-82 imposing the definitive anti-dumping duty, in particular as regards the legality of the procedure which resulted in the establishment of the dumping margin and the imposition of anti-dumping duties. In other submissions, without questioning the legality of the regulation, it disputes the accuracy of the normal values and the dumping margin established during the investigation procedure, and seeks to replace them with different normal values and a different dumping margin for purposes of the refund applied for. Thirdly, the applicant disputes the finding in the contested decision that the applicant had not proved that the production costs of its suppliers were lower, on the ground that it is not supported by an adequate statement of reasons.

7 The commission first of all objects that the submissions challenging the legality of regulation no 789-82 are inadmissible. Secondly, it challenges the submissions questioning the accuracy of the normal values and dumping margin established during the investigation. Lastly, it refutes the complaints against the statement of reasons for the contested measure.

8 For purposes of this dispute, it is first necessary to ascertain the scope of article 16 (1) of regulation no 2176-84, which provides that, "where an importer can show that the duty collected exceeds the actual dumping margin..., consideration being given to any application of weighted averages, the excess amount shall be reimbursed ".

9 The specific purpose of that provision is apparent from its text and from its position amid all the provisions of regulation no 2176-84. That regulation provides the undertakings concerned with various opportunities of defending their interests during the successive stages of the procedure for imposing anti-dumping duties.

10 During the first stage, article 7 of regulation no 2176-84 provides for a full and detailed preliminary investigation procedure enabling the existence of dumping to be established and anti-dumping duties to be imposed if necessary, and gives interested parties the right to participate in that procedure with a view to making known the matters concerning them so that account may be taken thereof. If the procedure results in the adoption of a regulation imposing anti-dumping duties, interested parties may challenge its legality either by an action for annulment or by a plea of illegality.

11 During the second stage, if there is a change in the circumstances on the basis of which the values applied in the regulation imposing the anti-dumping duties were established, article 14 of regulation no 2176-84 provides a procedure for the review, in whole or in part, of the regulation imposing the duties, in which interested parties may participate. The measures in force are amended, repealed or annulled where the general review so requires. Interested parties may challenge the results of this procedure by bringing legal proceedings.

12 Lastly, there is a third possibility for importers; where in respect of one or more imports an importer has paid amounts in excess of the actual dumping margin, he may apply for reimbursement of the excess amounts under article 16. A refund is therefore available only to an importer who has paid anti-dumping duties under the regulation by which they were introduced. It follows that article 16 does not permit the validity of the regulation instituting the duties to be challenged or a review of the general findings made during the previous investigations to be requested. It gives an importer the opportunity to establish, on the assumption that those findings were generally accurate, that they do not apply in his individual case and that consequently the actual dumping margin is lower than the margin on the basis of which the anti-dumping duties were instituted.

13 This interpretation of article 16, to the effect that an importer applying for a refund may not challenge the normal values established during the preliminary investigation carried out in accordance with article 7 of regulation no 2176-84 and resulting in the adoption of the regulation imposing the anti-dumping duties, is confirmed by the fact that article 16 requires the importer to adduce evidence in support of his application. An importer will not have at his disposal evidence which is of a general nature and which is therefore capable of calling in question those normal values; consequently, it cannot be accepted that article 16 requires any such evidence of a general nature because, if it did, importers would be unable to take advantage of that provision.

14 Furthermore, it is clear from the procedure for examining applications for reimbursement laid down in article 16 (2) that the evidence on which the importer is to base his application for reimbursement must be complete and must accompany the application when it is submitted. Under that procedure, the application is forwarded to the commission by the national authorities of the member state in whose territory the products were released for free circulation, either with or without their opinion as to its merits; the commission informs the other member states of the application and gives an opinion on the application, and the member states adopt their position. These opinions and decisions must be adopted on the basis of all the documents concerning the application. Consequently, article 16 does not permit the importer concerned to request the commission itself to undertake an inquiry as to the merits of the application for a refund or to require the commission to accept evidence submitted at a later stage, in particular in the course of legal proceedings.

15 In order to clarify the practical scope of article 16 as interpreted above, it must therefore be stated that, for purposes of that article, the anti-dumping duty imposed may exceed the "actual dumping margin" in only two cases: (a) where the particular suppliers of the importer concerned sold the imported products at prices approaching or equal to the level of the normal values on which the regulation imposing the duties was based, and (b) where the prices of his suppliers, although they are below the normal values, are free from dumping by reason of low production costs enabling them to sell at low prices and still make a profit. The calculation of the prices must take account of weighted averages. Consequently, the importer must accompany his application with evidence to show that the products imported by him fall into one of those categories.

16 It is in the light of the foregoing considerations that the applicant' s submissions concerning the legality of the contested decision must be examined.

The legality of the contested decision

17 Amongst the reasons given for the contested decision is the statement that "the applicant has not adduced any evidence capable of supporting its assertions that the costs of its turkish suppliers were in fact lower than the costs determined by the commission in its anti-dumping investigation; nor has the applicant given its opinion on the reservations expressed by the commission regarding the information submitted by the applicant concerning the costs of its suppliers and in particular the cost of raw cotton, which were alleged to be 20% lower than those established by the commission in its investigation; the costs established by the commission are based on statements made to the commission by turkish exporters, to the effect that the price of raw cotton does not vary from one purchaser to another because of measures adopted by the government to support the price of cotton seeds" (paragraph 15).

18 That statement of reasons implicitly accepts that the applicant had an opportunity of establishing that, by reason of lower production costs, the normal values applicable to its suppliers were below the normal values applied by the regulation imposing the anti-dumping duty. Consequently, the applicant' s submission that the commission refused to take account of the individual values applied by its suppliers must be rejected.

19 In other submissions the applicant criticizes the manner in which the contested decision deals, in its statement of reasons, with the appraisal of the evidence supplied by the applicant as regards the production costs of its suppliers in turkey.

20 Those submissions are also unfounded. The contested decision refers to the information submitted by the applicant to the national authorities and to the commission and also to the fact that the applicant failed to comment on the reservations expressed by the commission regarding the information provided by the applicant to the effect that the production costs of its suppliers, particularly the cost of the raw cotton, were lower than the costs of turkish producers in general established in the preceding investigation. The decision adds that there are no appreciable differences in the levels of costs of the various producers. The statement of reasons in the contested decision is therefore adequate.

21 Since no other submission has been put forward concerning this part of the statement of reasons, which in itself constitutes adequate foundation for the contested decision, the application for a declaration that the decision is void must be dismissed, without its being necessary to examine the submissions put forward by the applicant concerning the other parts of the statement of reasons in the contested decision.

22 The applicant' s alternative claims for a finding that the contested measure is null (feststellung der nichtigkeit), for its amendment or substitution by another measure, are not admissible in an application under article 173 of the eec treaty.

23 Consequently the application must be dismissed in its entirety.

Costs

24 Under article 69 (2) of the rules of procedure the unsuccessful party is to be ordered to pay the costs. As the applicant has failed in its submissions it must be ordered to pay the costs.

On those grounds,

The court (sixth chamber)

Hereby:

(1) Dismisses the application;

(2) Orders the applicant to pay the costs.