CJEC, July 8, 1987, No 301-86

THE COURT

1 By application lodged at the court registry on 1 december 1986, r. Frimodt Pedersen A/S brought an action under the second paragraph of article 173 of the eec treaty for a declaration that commission regulation (eec) no 3019-86 of 30 september 1986 imposing a provisional anti-dumping duty on imports of standardized multiphase electric motors having an output of more than 0.75 kw but not more than 75 kw, originating in bulgaria, hungary, poland, the german democratic republic, romania, czechoslovakia and the soviet union (official journal 1986, l 280, p. 68), is void. The applicant alleges a breach of council regulation (eec) no 2176-84 of 23 july 1984 on protection against dumped or subsidized imports from countries not members of the european economic community (official journal 1984, l 201, p. 1) and of a number of general principles of community law.

2 The anti-dumping investigation which resulted in the imposition of the provisional duty in question was reopened by the commission in november 1985 pursuant to an application for the review of the price undertakings accepted by the council and the commission between 1982 and 1984 concerning imports of electric motors from the abovementioned countries (official journal 1985, c 305, p. 2).

3 In the seventh recital in the preamble to regulation no*3019-86 the commission lists the importers, including the applicant, whose written and oral arguments it took into account.

4 As is clear from the thirteenth recital of the preamble in that regulation, the commission referred in its dumping investigation to the export prices actually paid or payable in respect of the transactions in question and in no case did it construct export prices, as provided for in article 2 (8) (b) of regulation no 2176-84, on the basis of the resale prices charged by the importers in the community.

5 However, in article 2 (3) (b) of the contested regulation, the commission listed six importers in respect of which its investigation had shown that there was an association or a compensatory arrangement with an exporter within the meaning of article 2 (8) (b) of regulation no 2176-84. The applicant is not one of those companies.

6 Article 2 (4) of the contested regulation further provides that the release into free circulation of the electric motors of the abovementioned type is to be subject to the payment of a deposit equivalent to the amount of the provisional duty.

7 According to the documents before the court, the applicant is a danish company which is, inter alia, exclusive importer into denmark of electric motors originating in the german democratic republic and exported by ahb elektrotechnik without, however, being associated, within the meaning of article 2 (8) (b) of regulation no 2176-84, to that exporter or to one of the other exporters concerned.

8 By a document lodged at the court registry on 22 january 1987 the commission raised an objection of inadmissibility pursuant to article 91 (1) of the rules of procedure, contending that the regulation in question is not of direct and individual concern to the applicant but constitutes a measure of general application with regard to the applicant; in the commission' s view, this contention is not rebutted by the fact that it is possible to determine the number, or even the identity, of the traders to which the regulation applies.

9 The commission further contends in this regard that the mere fact that the applicant was concerned by the anti-dumping investigation or identified in the contested measure does not affect the classification of that measure. The applicant' s position was not specifically taken into consideration since in the present case the existence of dumping was established with reference to the export price and not with reference to the applicant' s resale price. According to the case-law of the court, a direct action against a regulation introducing an anti-dumping duty is inadmissible in such circumstances. The commission points out that the applicant had the possibility of challenging before the national courts the individual measures adopted in its regard by the national authorities pursuant to the aforesaid regulation.

10 The applicant, on the other hand, argues that the contested measure actually constitutes in its regard a decision adopted in the form of a regulation which is of direct and individual concern to it. It points out in this connection that it was concerned by the preparatory investigations carried out by the commission during the anti-dumping proceeding since it participated in all the stages of that procedure. The applicant further points out that the commission took into account the margins of importers, including the applicant, in determining the anti-dumping duty.

11 The applicant also observes that it is an exclusive importer of electric motors originating in the german democratic republic and the only such importer in its member state. Moreover, it is identified in the preamble to the aforesaid regulation and thus treated differently from importers whose names are not mentioned there. It is also clear from article 7 of regulation no 2176-84 that importers are treated on the same footing as exporters as "interested part((ies)) likely to be affected by the result of the proceeding ". Finally, since the anti-dumping duty is only provisional, it is not true to say that an effective national remedy is available to the applicant.

12 The question of admissibility raised by the commission must be resolved with reference to the second paragraph of article 173 of the treaty, which makes the admissibility of an action for annulment brought by an individual subject to the condition that the contested measure, even though in the form of a regulation, must in fact constitute a decision of direct and individual concern to that person.

13 However, an action brought by an individual is not admissible if it is directed against a regulation having general application within the meaning of the second paragraph of article 189 of the treaty, the distinguishing criterion between a regulation and a decision being, according to the case-law of the court, whether or not the measure in question has general application.

14 In this regard, it must be stated first of all that regulations imposing anti-dumping duties are in fact, by their nature and scope, legislative in character in so far as they apply to the generality of traders concerned (see the judgment of 21 february 1984 in joined cases 239 and 275-82 allied corporation and others v commission ((1984)) ecr 1005).

15 However, the court has recognized that some provisions of those regulations may be of direct and individual concern to those producers and exporters of the product in question who are charged with the dumping practices on the basis of information originating from their business. Generally, this is the case with producing and exporting undertakings which can show that they were identified in the measures of the commission or the council or were concerned by the preparatory investigations (see the judgment of 21 february 1984 in allied corporation v commission, cited above, and the judgment of 23 may 1985 in case 53-83 allied corporation and others v council ((1985)) ecr 1621).

16 The same is true of those importers who are directly concerned by the findings relating to the existence of a dumping practice owing to the fact that the export prices were established by reference to their resale prices and not by reference to the export prices charged by the producers or exporters in question (see the judgment of 29 march 1979 in case 118-77 iso v council ((1979)) ecr 1277, and the judgment of 21 february 1984 in allied corporation v commission, cited above). As is clear from article 2 (8) (b) of regulation no 2176-84, export prices may be constructed in that way where, in particular, there is an association between the exporter and the importer.

17 The applicant does not belong to either of the two categories of traders described above which the court has recognized as having a direct right of action against regulations imposing anti-dumping duties. The applicant itself acknowledges in its application that it is not associated with the exporter of the product in question. Secondly, it is clear from the contested regulation that the existence of dumping was not established by reference to the applicant' s resale prices but by reference to the export prices actually paid or payable.

18 The applicant' s contention that it is the exclusive importer in its member state of electric motors originating in the german democratic republic cannot lead to a different assessment. The applicant is in fact concerned by the contested regulation not by reason of certain attributes which are peculiar to it or by reason of circumstances which distinguish it from any other person but merely by reason of its objective status as an importer of the products in question in the same way as any other trader who is, or might be in the future, in the same situation (see the judgment of 14 july 1983 in case 231-82 spijker kwasten bv v commission ((1983)) ecr 2559).

19 The applicant' s argument that its application must be admissible by virtue of its participation in the successive stages of the commission' s investigation cannot be accepted either, since the distinction between a regulation and a decision can be based only on the nature of the measure itself and its legal effects and not on the procedure for its adoption (see the judgment of 6 october 1982 in case 307-81 alusuisse italia spa v council and commission ((1982)) ecr 3463).

20 That solution is, moreover, in conformity with the system of remedies provided for by community law since importers may, under the rules of national law, contest before the national courts individual measures taken by the national authorities in application of the community regulation.

21 It is clear from the foregoing that the contested measure constitutes, with regard to the applicant, a regulation of general application and not a decision within the meaning of the second paragraph of article 173 of the treaty.

22 Consequently, in accordance with article 91 (3) and (4) of the rules of procedure, the application must be dismissed as inadmissible by reasoned order without examination of its merits.

Costs

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

On those grounds,

The court

Hereby orders as follows:

(1) The application is dismissed as inadmissible;

(2) The applicant shall pay the costs.