CFI, 3rd chamber, December 10, 1996, No T-75/96

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Third Chamber),

Facts of the case

1 On 8 January 1996 the Committee of the Cotton and Allied Textile Industries of the European Union (Eurocoton) lodged a complaint with the Commission alleging 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 thereby causing material injury to the Community industry.

2 The Commission opened an investigation 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, hereinafter 'the anti-dumping regulation').

3 The notice of initiation of anti-dumping proceedings concerning imports of the fabrics in question was published in the Official Journal of the European Communities of 21 February 1996 (OJ 1996 C 50, p. 3).

Procedure and forms of order sought by the parties

4 By application lodged with the Registry of the Court of First Instance on 20 May 1996, Söktas Pamuk Ve Tarim Ürünlerini Degerlendirme Ticaret Ve Sanayi A.S., a company established in Turkey which manufactures and exports to the Community the types of cotton fabric allegedly being dumped, brought an action under the fourth paragraph of Article 173 and Articles 174 and 176 of the EC Treaty seeking annulment of the notice of initiation of anti-dumping proceedings, and an action under Article 178 of the Treaty seeking compensation for the damage allegedly caused to it by the contested measure.

5 By a separate document, lodged with the Court Registry on the same date, the applicant also made an application under Article 185 of the Treaty for suspension of operation of 'the contested decision in so far as it affects the applicant, and Turkey in general'.

6 The application for the adoption of interim measures was dismissed by order of the President of the Court of 26 August 1996 (Case T-75/96 R Söktas v Commission [1996] ECR 11-859).

7 The President considered, first, that the application for annulment appeared prima facie to be manifestly inadmissible, since the initiation of the anti-dumping proceedings at issue constituted at first sight a preparatory measure against which no action lay and whose alleged unlawfulness could be raised in an action for annulment brought against the final decision.

8 The President considered, secondly, that the application for compensation was prima facie manifestly inadmissible, since the allegedly unlawful act which was said to have given rise to the damage appeared to have no legal effect; furthermore, the applicant had in any event given no indication of the nature and extent of the alleged damage.

9 By document lodged on 19 June 1996, the Commission raised an objection of inadmissibility in accordance with the first paragraph of Article 114 of the Rules of Procedure.

10 By decision of the Court of 6 November 1996, adopted pursuant to Article 14 in conjunction with Article 51 of the Rules of Procedure, the case, which had originally been assigned to the Third Chamber, Extended Composition, was remitted to the Third Chamber, after hearing the parties.

11 In the present case, the applicant claims that the Court should: - annul the decision to initiate anti-dumping proceedings concerning imports of unbleached cotton fabrics originating in the People's Republic of China, Egypt, India, Indonesia, Pakistan and Turkey; - order the Commission to make good the damage caused by it; - order the Commission to pay the costs.

12 The Commission contends that the Court should: - dismiss the application as inadmissible; - order the applicant to pay the costs.

13 In its written observations lodged on 31 July 1996, the applicant claims that the plea of inadmissibility should be rejected and that the Court should: - declare the application admissible, including the claim for damages; - order the Commission to pay the costs.

Law

14 Under Article 114(3) of the Rules of Procedure, the remainder of the procedure on an objection of inadmissibility is to be oral, unless the Court decides otherwise. The Court (Third Chamber) considers that the documents in the case contain all the elements necessary for it to reach a decision and that there is therefore no need to open the oral procedure.

Admissibility of the daim for annulment

Arguments of the parties

15 In support of its objection of inadmissibility, the Commission argues primarily that the initiation of anti-dumping proceedings is a preparatory act, the first stage of a procedure which may end with the adoption of anti-dumping measures (Case 60/81 IBM v Commission [1981] ECR 2639, paragraph 19, and order of 14 March 1996 in Case T-134/95 Dysan Magnetics and Another v Commission [1996] ECR 11-181, paragraph 23).

16 The Commission rejects as irrelevant the applicant's argument that Article 47 of the Additional Protocol of 23 November 1970 to the Agreement establishing an Association between the European Economic Community and Turkey (OJ 1977 L 361, p. 59, hereinafter 'the Additional Protocol') imposes on the Commission, before it initiates anti-dumping proceedings, certain preliminary obligations which it did not comply with in the present case. Since the initiation of proceedings is an act against which no action lies, the particular reasons for which an applicant seeks its annulment are of no importance.

17 In the Commission's view, the initiation of the proceedings at issue does not constitute the culmination of a special procedure distinct from that in which a decision on the substance can be taken later, unlike the withdrawal of exemption from a fine (Joined Cases 8/66 to 11/66 Cimenteries CBR and Others v Commission [1967] ECR 75), which is possible in respect of a notified agreement, under Article 15(6) of Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles 85 and 86 of the Treaty (OJ, English Special Edition 1959-1962, p. 87).

18 The adoption of anti-dumping measures is founded on the relevant provisions of the anti-dumping regulation, and not, as the applicant wrongly submits, on the initiation of anti-dumping proceedings. The applicant's argument concerning the serious financial risk of having to pay provisional anti-dumping duties to which it would be liable because of the initiation of the proceedings should also be rejected, as it is based on that erroneous premise.

19 Contrary to the applicant's claims, the situation in the present case is not similar to that which arises in State aid cases. The initiation of the procedure under Article 93(2) of the Treaty is an actionable act on account not of the fact that a procedure has been initiated but of the consequences particular to a State aid procedure Qoined Cases T-10/92, T-ll/92, T-12/92 and T-15/92 Cimenteries CBR and Others v Commission [1992] ECR 11-2667, paragraph 47).

20 The Commission observes, in the alternative, that in any event the applicant is not directly and individual concerned by the initiation of the proceedings and has no legitimate interest to assert. The anti-dumping regulation concerns the protection of Community Member States against the dumping of products from non-member countries, and, as stated in Article 5(10) of that regulation, a notice of initiation refers to the product and the countries concerned, not to individual exporters or importers.

21 The applicant submits, on the other hand, that the present case can be distinguished from Dysan Magnetics, in that the contested decision to initiate proceedings under the anti-dumping regulation disregards the procedure laid down by Article 47 of the Additional Protocol. Under that provision, before being able to introduce interim protective measures unilaterally, such as the initiation of antidumping proceedings, the Commission should have made an application to the Association Council and waited for it either to take a decision within three months or to refrain from acting. The initiation decision at issue thus clearly and irreversibly altered the applicant's legal position, by changing the institutional structure established to resolve the anti-dumping dispute in question.

22 Since it constitutes an act bringing the procedure referred to in Article 47 of the Additional Protocol to a close, the contested notice of initiation is similar to a notice pursuant to Article 15(6) of Regulation No 17 and constitutes the culmination of a special procedure without prior recourse to which the anti-dumping regulation may not be applied.

23 In the applicant's view, the importance of the contested decision, taken after examination of the evidence accompanying the complaint, lies in the fact that it creates the legal basis for the imposition of provisional anti-dumping duties. The Court of Justice has declared admissible an application for annulment of the withdrawal of exemption from fines for a notified agreement, in that such withdrawal exposed the applicant to a grave financial risk and thus brought about a change in the latter's legal position (Joined Cases 8/66 to 11/66 Cimenteries CBR v Commission, cited above).

24 Finally, it maintains, the decision to initiate proceedings formally constitutes the starting-point of a procedure, and as such has similar effects to a decision initiating the procedure under Article 93(2) of the Treaty in State aid cases.

25 The applicant argues, secondly, that the Commission discovered the identities of the producers and exporters of the Turkish cotton fabrics in question in an earlier case in which the Commission collected a great deal of information on them. Those earlier proceedings were terminated at the same time as a fresh complaint was lodged, and the contested notice of initiation was published only two days after the date of such termination. Although these are fresh proceedings, they should, because of the particular circumstances involved, be assimilated to an examination procedure in which the identities of the parties are known.

Findings of the Court

26 The application under the fourth paragraph of Article 173 and Articles 174 and 176 of the Treaty seeks the annulment of the act by which the Commission initiated the anti-dumping proceedings at issue. In order to decide on the admissibility of the application, it should be recalled that measures whose legal effects are binding and are capable of affecting the applicants' interests by clearly altering their legal position constitute acts which may be the subject of an action for annulment under Article 173 of the Treaty (order of 8 March 1991 in Cases C-66/91 and C-66/91 R Emerald Meats v Commission [1991] ECR 1-1143, paragraph 26, and Case C-476/93 P Nutral v Commission [1995] ECR 1-4125, paragraph 28).

27 In the case of acts adopted by a procedure involving several stages, in principle only measures definitively laying down the position of the institution on the conclusion of the procedure, not intermediate measures intended to pave the way for the final decision, constitute acts which may be contested (IBM v Commission, cited above, paragraph 10 et seq; Case T-64/89 Automecv Commission [1990] ECR 11-367, paragraph 42; Joined Cases T-10/92, T-ll/92, T-12/92 and T-15/92 Cimenteries CBR and Others v Commission, cited above, paragraph 28; and Case T-186/94 Guénn Automobiles v Commission [1995] ECR 11-1753, paragraph 39).

28 The Court must therefore assess whether the contested act is capable in itself of producing legal effects capable of affecting the applicants' interests or whether, on the contrary, it is merely a preparatory measure whose illegality could be raised in an action brought against the final decision, while still providing sufficient protection for the parties concerned (Case 53/85 AKZO Chemie v Commission [1986] ECR 1965, paragraph 19, and Joined Cases T-10/92, T-ll/92, T-12/92 and T-15/92 Cimenteries CBR and Others, cited above, paragraph 31).

29 It is settled case-law (Joined Cases T-10/92, T-ll/92, T-12/92 and T-15/92 Cimenteries CBR and Others, cited above, paragraph 42) that only measures immediately and irreversibly affecting the legal position of the undertakings concerned are of such a nature as to justify, before completion of the administrative procedure, the admissibility of an action for annulment.

30 It follows from the provisions of the anti-dumping regulation that the Commission's task is to undertake investigations and on that basis to decide either to terminate the proceedings or to continue them, whether by adopting provisional measures or by proposing to the Council the adoption of definitive measures.

31 Consequently, the act by which the Commission initiates anti-dumping proceedings is a purely preparatory act which is not capable of immediately and irreversibly affecting the applicant's legal position (order in Dysan Magnetics).

32 That conclusion cannot be called into question by the applicant's argument that the initiation of the anti-dumping proceedings at issue has the effect of displacing the procedure for the amicable settlement of disputes laid down in Article 47 of the Additional Protocol.

33 To begin with, an analysis of Article 47 of the Additional Protocol does not show that the initiation of proceedings under Article 5 of the anti-dumping regulation has the effect of depriving the applicant of the possibility of settling the dispute in accordance with the conditions laid down in Article 47.

34 That provision, whose aim is not to disapply the Community's trade protection measures but to supplement the rules for their implementation, does not make the mere initiation of anti-dumping proceedings by the Community subject to any specific conditions, apart from notifying the Association Council.

35 Moreover, the second subparagraph of Article 47(2) of the Additional Protocol expressly authorizes the imposition of provisional anti-dumping duties, as interim measures for a limited period, by one of the parties to the Association Agreement, after informing the Association Council.

36 In the present case, the documents before the Court show that the Commission informed the Association Council of the complaint lodged with it by Eurocoton on 8 January 1996 and of the initiation of the anti-dumping proceedings at issue.

37 The notice of initiation of the contested anti-dumping proceedings is therefore not such as to rule out the possibility of later intervention by the Association Council in compliance with the provisions of Article 47 of the Additional Protocol, in particular if the Commission intends to adopt provisional measures or proposes to the Council the adoption of definitive measures.

38 Second, the Court observes that, since it is not to be regarded as an act bringing the procedure under Article 47 of the Additional Protocol to a close, the contested notice of initiation cannot, contrary to the applicant's contention, be assimilated to a notice under Article 15(6) of Regulation N o 17, and does not therefore constitute the culmination of a special procedure preliminary to the initiation of the contested anti-dumping proceedings.

39 Third, the Court finds that while the initiation of the anti-dumping proceedings at issue may expose the applicant to the risk of anti-dumping duties being imposed, it does not necessarily entail the imposition of such duties, since the proceedings may be terminated without any measures being adopted (order in Dysan Magnetics, paragraph 27).

40 Fourth, with respect to the comparison made by the applicant with the procedure in State aid cases, decisions to initiate the procedure provided for in Article 93(2) of the Treaty involve a choice as to the categorization of the State aid in question and the relevant procedural rules and thus have definitive legal effects for the undertakings concerned, in particular suspension of payment of the proposed aid (Case C-312/90 Spain v Commission [1992] ECR 1-4117, paragraphs 21 to 23, and Case C-47/91 Italy v Commission [1992] ECR 1-4145, paragraphs 27 to 29).

41 By contrast, the initiation of anti-dumping proceedings is not capable of immediately and irreversibly affecting the legal position of the undertakings concerned. Those undertakings are in no way compelled to alter their commercial policy as a result of the initiation of anti-dumping proceedings and cannot be required to cooperate in the investigation (order in Dysan Magnetics, paragraph 27).

42 In those circumstances, the initiation of the contested proceedings does not produce legal effects capable of affecting the applicant's interests, but is a preparatory measure whose alleged illegality could if necessary be raised in an action brought against the final decision, while still providing sufficient protection for the applicant.

43 Consequently, the initiation of the anti-dumping proceedings at issue cannot be regarded, in terms of its nature or its effects, as an act against which an action for annulment may be brought under Article 173 of the Treaty.

44 It follows from all the foregoing that the claim for annulment must be declared inadmissible, without there being any need to determine whether the applicant is directly and individually concerned by the contested measure.

Admissibility of the claim for compensation

Arguments of the parties

45 The Commission contends that the claim for compensation is likewise inadmissible. It submits that the application merely asserts that the Commission should 'be required to compensate the applicant for the damage caused by its illegal act', and contains none of the elements necessary to found a claim for compensation, namely fault on the part of the Commission, existence of a causal link and amount of the alleged damage. The Court's judgment in Automec v Commission (paragraphs 73 to 77) dismissing a claim for compensation as inadmissible is directly applicable to the present case.

46 In its application, the applicant asks the Court to order the Commission to make good the damage caused by it to the applicant, in accordance with Articles 178 and 215 of the Treaty.

47 In its observations on the objection of inadmissibility, the applicant states that once anti-dumping proceedings have been initiated pursuant to Article 5 of the anti-dumping regulation, the exporters in the countries concerned suffer damage, even if no definitive duties are imposed. The applicant estimates at US $28 000 (ECU 21 407) its loss in terms of man-hours which its employees had to devote to the case. In addition, the applicant estimates at ECU 912 321 the loss it incurred because of the fall in its exports to the Community, its only foreign market, as a result of the uncertain outcome of the proceedings at issue.

Findings of the Court

48 Examination of the admissibility of the claim for annulment has shown that the allegedly unlawful act said to have caused the alleged damage has no legal effects capable of affecting the applicant's interests.

49 It is settled case-law (order of 4 October 1991 in Case C-l 17/91 Bosman v Commission [1991] ECR 1-4837, paragraph 20) that an action for damages seeking compensation for damage caused by the alleged unlawfulness of a measure adopted by an institution is inadmissible if that measure has no legal effect.

50 It follows from all the foregoing considerations that the application must be dismissed as inadmissible in its entirety.

Costs

51 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs, if they have been applied for in the successful party's pleadings. Since the applicant has been unsuccessful, it must, having regard to the form of order sought by the Commission, be ordered to pay the costs, including those relating to the proceedings for interim measures.

On those grounds,

THE COURT OF FIRST INSTANCE (Third Chamber)

hereby orders:

1. The application is dismissed as inadmissible.

2. The applicant is ordered to pay the costs, including those relating to the proceedings for interim measures.