CFI, 4th chamber, extended composition, May 4, 1998, No T-84/97

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Fourth Chamber, Extended Composition),

Legislative background and facts of the dispute

1. On 21 February 1996 the Commission issued a notice of initiation of anti-dumping proceedings (OJ 1996 C 50, p. 3, hereinafter 'the notice of initiation'), following a complaint made pursuant to Article 5 of Council Regulation (EC) No 3283-94 of 22 December 1994 on protection against dumped imports from countries not members of the European Community (OJ 1994 L 349, p. 1, to the effect that imports of unbleached cotton fabrics originating in the People's Republic of China, Egypt, India, Indonesia, Pakistan and Turkey were being dumped and were thus causing material injury to the Community industry.

2. Article 23 of Council Regulation (EC) No 384-96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (OJ 1996 L 56, p. 1) provides:

'Regulation (EC) No 3283-94 is hereby repealed, with the exception of the first paragraph of Article 23 thereof.

However, the repeal of Regulation (EC) No 3283-94 shall not prejudice the validity of proceedings initiated thereunder.

References to Regulation (EEC) No 2423-88 and to Regulation (EC) No 3283-94 shall be construed as references to this regulation, where appropriate.'

3. It follows that Regulation No 384-96 (hereinafter 'the Regulation') is applicable in the present proceeding.

4. The notice of initiation invited interested parties likely to be affected by the results of the investigation to make their views known in writing and to provide supporting evidence (point 5(e)).

5. The Bureau Européen des Unions de Consommateurs (BEUC) made itself known by letter of 1 April 1996 and presented its views concerning dumping, injury and Community interest. BEUC also asked to be heard by the Commission on all questions relating to the anti-dumping proceeding.

6. BEUC was afforded access to the non-confidential observations of the parties concerned on the subject of Community interest.

7. On 25 June 1996 BEUC was heard by the Commission on the issue of Community interest. On that occasion it was advised that it should contact the dumping team and the complaints office on the questions relating to dumping and to the admissibility of the complaint.

8. On the same day, the applicant sent two letters to the Commission. In the first, addressed to Mr De Munck of Unit 2, Dumping investigations; complaints, requests for reviews (of dumping aspects) and contacts with industry, of Directorate C, Antidumping strategy: dumping aspects (policy, investigations and measures), of the Directorate General for External Relations: Commercial policy and relations with North America, the Far East, Australia and New Zealand (DG I), it requested to be heard on the subject of dumping. In the second, addressed to Mr Balibrea, the official conducting the investigation, it asked, first, for access to the information on which the decision to initiate the proceeding was based and, secondly, to be heard on that question.

9. In a telephone conversation on 25 July 1996 Mr De Munck stated that BEUC was unlikely to be granted a hearing on dumping.

10. By a letter of 6 August 1996 Mr De Munck requested the applicant to approach Directorate C of DG I regarding dumping matters and Directorate E of DG I Anti-dumping strategy: injury and Community interest aspects (policy, investigations and measures); other instruments of external economic policy and general questions, in relation to injury and Community interest. He pointed out in particular that, regardless of whether the applicant could be deemed to be an interested party with a right to a hearing, it had not provided any reason why it should be heard, as required in Article 6(5) of the Regulation. He therefore requested the applicant to reconsider its request for a hearing.

11. On 19 August 1996, in a letter to Mr De Munck, the applicant requested access to all the documents supplied by each of the parties concerned.

12. On 13 September 1996 the applicant wrote to Mr Balibrea reiterating its request for access to the non-confidential file and to be heard on the decision to initiate the anti-dumping procedure. It concluded:

'May I ask now for a clear response to our request, and the reasons for your decision.'

13. Mr Balibrea replied by a letter dated 17 September 1996 in which he stated that the applicant did not represent the consumers of the product in question (unbleached cotton fabrics) and that therefore it could not be considered as an interested party in the proceeding in question. Consequently, it could not be granted access to the non-confidential file.

14. On 13 September 1996 the applicant also wrote to Commissioner Sir Leon Brittan, setting out its arguments concerning admissibility of the complaint and the absence of proof of dumping, injury and Community interest.

15. On 24 October 1996 Sir Leon Brittan replied in the following terms:

'... as you have previously been informed, it was concluded during the course of the investigation that BEUC could not be recognised as an interested party in this proceeding. In fact, in the light of both the GATT Anti-dumping Code and the Community's own legislation, consumers' organisations are considered interested parties only in cases where the like product concerned is commonly sold at the retail level. Grey cotton fabrics are intermediate, semi-processed products which are not normally sold at that level.'

16. The letter also stated that, in the early phase of the investigation, in a spirit of cooperation, BEUC had been granted a hearing and access to the non-confidential file regarding the subject of Community interest.

17. By letter of 20 December 1996 the applicant requested Sir Leon Brittan to state reasons for his reply of 24 October 1996 and requested access to the non-confidential file in its entirety.

18. On 3 February 1997 Mr Stewart, Acting Director of Directorate C of DG I, gave a written reply in the following terms:

'It is the continued opinion of the Commission that BEUC cannot be considered an interested party in this proceeding.'

19. He further stated:

'... a representative consumer organisation cannot be given the opportunities described in Article 21 [of the Regulation] in the present proceeding'.

Procedure and forms of order sought

20. In these circumstances, by an application lodged at the Registry of the Court of First Instance on 2 April 1997, the applicant brought these proceedings.

21. In a separate document of 12 June 1997, the Commission raised an objection of inadmissibility under Article 114(1) of the Rules of Procedure of the Court of First Instance.

22. The applicant claims that the Court should:

- declare the action admissible;

- annul the Commission's decision of 3 February 1997 refusing to consider it an 'interested party' in relation to an anti-dumping proceeding concerning imports of unbleached cotton fabrics originating in the People's Republic of China, Egypt, India, Indonesia, Pakistan and Turkey, and not allowing it to inspect the Commission's non-confidential documents and information made available to all the parties in that proceeding;

- annul the Commission's decision of 3 February 1997 in so far as it refuses to grant the applicant and other consumer organisations access to the non-confidential information made available in anti-dumping proceedings dealing with products not commonly sold at retail level;

- make such additional orders as the Court considers necessary;

- order the Commission to pay the costs of the proceedings.

23.

In its objection on admissibility the Commission contends that the Court should:

- dismiss the application as inadmissible;

- order the applicant to pay the costs.

Admissibility

24. The Commission relies on two pleas in support of its objection on admissibility. First, the application was lodged out of time. Secondly, the applicant has no legitimate interest in the annulment of the measure in question.

Arguments of the parties

25. In the first place, the Commission contends that the letter of 3 February 1997 merely confirms the earlier decision of the Commission contained in its letter of 17 September 1996. That letter was a clear and unambiguous response to the applicant's request of 13 September 1996. The confirmation of an initial decision by a later one does not cause the limitation period to start to run afresh (Case 23-80 Grasselli v Commission [1980] ECR I-3709).

26. None the less, if the Court of First Instance were to consider that the letter of 17 September did not constitute a decision, the application would in any event be out of time by reason of the decision contained in the Commission's letter of 24 October 1996. That letter was signed by the Vice President of the Commission, and the Commissioner responsible for anti-dumping policy. That letter once again set out the Commission's position unequivocally.

27. Secondly, the contested decision, it is submitted, concerns only the anti-dumping proceeding of 21 February 1996 relating to imports of cotton fabrics. The applicant however is seeking a declaration that the decision is void in so far as it refuses to allow the applicant and other consumer organisations access to the non-confidential information made available in anti-dumping proceedings dealing with products not commonly sold at retail level. The applicant's claim thus goes beyond the scope of judicial review by the Court of First Instance under Article 173 of the Treaty of the legality of acts of the institutions.

28. Moreover, as the Council has rejected the Commission's proposal to impose definitive duties, no measures can now be adopted in the context of that proceeding.

29. The applicant claims that the letter of 3 February 1997 is not merely the confirmation of an earlier decision but is a decision intended to produce legal effects and constitutes the final step of a procedure within the Commission. The letters of 17 September and 24 October 1996 did not constitute decisions and the action challenging the decision of 3 February 1997 is therefore not time-barred.

30. The applicant considers that the letter of 17 September 1996 does not meet the criteria for a decision defined in the Court's case-law (Joined Cases 15-59 and 29-59 Société Metallurgique de Knutange v High Authority [1960] ECR 1, in Joined Cases 53-63 and 54-63 Lemmerz-Werke and Others v High Authority [1963] ECR 239 and Case T-3-93 Air France v Commission [1994] ECR II-121).

31. In the first place, it argues, the letter of 17 September 1996 is not an act adopted by a competent authority since it was signed only by the official conducting the investigation.

32. Secondly, the head of the unit in which Mr Balibrea was working also sent a letter to the applicant on 6 August 1996, which gave rise to a certain amount of confusion as to the official authorised to reply to the applicant.

33. Thirdly, the letter of 17 September 1996 was sent only four days after the applicant's letter, too short an interval for it to be regarded as an official response by the Commission.

34. However, should the Court of First Instance find that the letter of 17 September was a decision, the applicant submits, in the alternative, that the letter of 3 February is not a confirmation of its previous decision but a different decision replying to a different request.

35. The letter of 17 September 1996 had found that the applicant could not be regarded as an interested party and refused it access to the non-confidential file relating to the admissibility of the complaint, whereas the letter of 3 February 1997 refused to consider the applicant an interested party and therefore refused it access to the whole of the non-confidential file.

36. The applicant concludes that the second letter could not be said to confirm an earlier decision.

37. The applicant also claims that the Commission cannot claim that its letter of 24 October 1996 constitutes a decision.

38. First of all, the Commissioner does not state that a decision has been adopted, but only that a conclusion has been reached during the course of the investigation. Moreover, the positions adopted by the Commission services were contradictory. On the one hand, they granted the applicant a hearing and allowed it access to the non-confidential submissions with regard to the question of Community interest. On the other, they refused to give access to the observations concerning the admissibility of the complaint. A letter which refers to a past situation which was unclear cannot be treated as a decision.

39. Secondly, it argues that the letter of 24 October 1996 is not a decision adopted in response to the applicant's request and is not a measure intended to produce legal effects.

40. Accordingly, only the letter of 3 February 1997 can be regarded as a decision. It does not confirm an earlier decision but merely refers to the Commission's 'continued opinion' and, for the first time, deals with the points at issue in a clear, unambiguous, comprehensive and reasoned manner, concluding that the applicant is not entitled to be treated as an interested party in those or any similar proceedings.

41. The applicant submits that the Commission cannot claim that the applicant has no legitimate interest in seeking the decision's annulment. It has, in effect, a continuing interest in order to compel the Commission to alter its approach in the future (Case 92-78 Simmenthal v Commission [1979] ECR 777, paragraph 32, and Case 207-86 Apesco v Commission [1988] ECR 2151, paragraph 16).

Findings of the Court

42. Under Article 114(3) of the Rules of Procedure of the Court of First Instance, the remainder of the proceedings on an objection of admissibility is to be oral, unless the Court decides otherwise. In the present case, the Court considers that there is sufficient information in the file and that it is therefore unnecessary to open the oral procedure.

43. It is settled case-law that only measures with binding legal effects capable of affecting the interests of the applicant by bringing about a distinct change in his legal position are capable of being the subject-matter of an application for annulment (Case 60-81 IBM v Commission [1981] ECR 2639, paragraph 9, Air France v Commission, cited above, paragraph 43, and Case T-541-93 Connaughton and Others v Council [1997] ECR II-549, paragraph 30).

44. The Court notes that the applicant was informed in the letter of 17 September 1996 that the Commission had concluded that it could not be considered to be a party with an interest in the proceeding and that, as a result, it was refused access to the non-confidential file.

45. The decision of the Commission conveyed in that letter was similar to a decision to the same effect against which the applicant had, at the time, brought an application for annulment before the Court of Justice (Case C-170-89 BEUC v Commission [1991] ECR I-5709, paragraph 11).

46. As in the situation examined by the Court of Justice in that judgment, the applicant's interests were prejudiced in a direct and immediate manner as a result of the position adopted by the Commission in the letter of 17 September 1996.

47. Nor could the applicant have doubted the authority of the writer of the letter of 17 September 1996 on the ground that it was signed by the official conducting the investigation and not by a higher authority. In fact, that letter was written by Mr Balibrea in direct response to a request made to him in the applicant's letter of 13 September 1996. The letter expressly asked for 'a clear response to our request and the reasons for your decision', and stated that the applicant was expecting to receive a definitive and reasoned reply from Mr Balibrea on the basis of which it could, if necessary, take action.

48. The Court recalls in that regard that the particular form in which acts and decisions are adopted is, in principle, immaterial so far as concerns the possibility of their being challenged by an action for annulment, and that it is their substance which must be examined in order to determine whether they constitute measures within the meaning of Article 173 (IBM v Commission, cited above, paragraph 9). Given that the decision in question contained a clear and definitive consideration of the request that had been put to the Commission, the character of the decision cannot be called in question merely on the ground that the request was considered only by the Commission's staff (Case T-37-92 BEUC and NCC v Commission [1994] ECR II-285, paragraph 38).

49. In any event, even if the applicant entertained doubts as to the authority of Mr Balibrea to convey the decision contained in the letter of 17 September 1996, those doubts were eliminated by the express terms of Sir Leon Brittan's letter of 24 October 1996 in which he confirmed that the Commission had already concluded during the course of the investigation that the applicant could not be recognised as an interested party in the proceeding. Contrary to the argument put forward by the applicant, the expression 'as you have been previously informed' clearly demonstrates that the Commissioner was seeking to confirm expressly the decision already conveyed by Mr Balibrea in the letter of 17 September 1996.

50. The Court considers, moreover, that the fact that the decision of 17 September 1996 was issued merely four days after dispatch of the letter in which the applicant asked for a clear response cannot, of itself, indicate that the reply did not constitute an official reply by the Commission.

51. In those circumstances, regardless of whether the letter of 24 October 1996 is to be regarded as the communication of the definitive decision or as merely a confirmation of a definitive decision already conveyed to the applicant in the letter of 17 September 1996, it is clear that the letter of 3 February 1997 merely confirms a decision contained in either one or in both earlier letters.

52. The Court has consistently held that an application for annulment brought against a decision which merely confirms an earlier decision not challenged in due time is inadmissible (Joined Cases 166-86 and 220-86 Irish Cement v Commission [1988] ECR 6473, paragraph 16, and Case C-480-93 P Zunis Holding and Others vCommission [1996] ECR I-1, paragraph 14). A decision is a mere confirmation of an earlier decision where it contains no new factors as compared with the earlier measure and is not preceded by any reexamination of the situation of the addressee of the earlier measure (Case T-4-90 Lestelle v Commission [1990] ECR II-689, paragraphs 24 to 27).

53. The letter of 3 February 1997 confirms that the Commission remains of the view that the applicant cannot be regarded as a party with an interest in the proceeding in question, which concerns products not normally sold at retail level. As a result, the applicant could not be granted access to the non-confidential file. The letter of 17 September 1996 also stated that the Commission considered that the applicant was, for the same reason, not an 'interested party' in the proceeding in question, and refused access to the non-confidential file.

54. Therefore, although the letter of 3 February 1997 explains the Commission's reasoning in greater detail than the letter of 17 September 1996, it contains no new factor as compared with the latter and was not preceded by any reexamination of the applicant's situation. The fact that in its letter of 20 December 1996 the applicant sought access to the whole of the non-confidential file, but only to one aspect of it in its letter of 13 September 1996 to Mr Balibrea, is immaterial in the circumstances given that the refusal of access is based in both instances on the fact that the Commission did not consider that it could be regarded as an interested party in the context of the proceeding in question. In fact, it is clear from the terms of both letters that the decision of the Commission was to refuse to recognise the applicant as an interested party for the purposes of the entirety of the proceedings without any distinction between the different aspects thereof.

55. It follows that the letter of 3 February 1997 is a decision which merely confirms the decision of 17 September 1996, the latter not having been challenged within the relevant time-limit.

56. It follows that the application for annulment of the decision of 3 February 1997 is inadmissible and it is unnecessary to examine the further ground of inadmissibility raised by the Commission.

Costs

57. Under Article 87(2) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs if they have been asked for in the successful party's pleadings. Since the applicant has been unsuccessful, and the Commission asked for costs, the applicant must be ordered to pay the whole of the costs.

On those grounds,

THE COURT OF FIRST INSTANCE (Fourth Chamber, Extended Composition)

hereby orders:

1. The application is dismissed as inadmissible.

2. The applicant is ordered to pay the costs.