Avis juridique important

61986O0304(01)

European Court reports 1987 Page 02257

Summary

ACTION FOR ANNULMENT - NATURAL OR LEGAL PERSONS - MEASURES OF DIRECT AND INDIVIDUAL CONCERN - REGULATIONS ABROGATING ACCEPTANCE OF PRICE UNDERTAKINGS GIVEN IN THE CONTEXT OF ANTI-DUMPING PROCEEDINGS - IMPORTER WHO DID NOT IMPORT ANY OF THE PRODUCTS CONCERNED - INADMISSIBLE ( EEC TREATY, ART . 173, SECOND PARAGRAPH, COUNCIL REGULATION NO 3018/86 )

A COUNCIL REGULATION ABROGATING ACCEPTANCE OF PRICE UNDERTAKINGS IN RESPECT OF SPECIFIED PRODUCTS GIVEN IN THE CONTEXT OF ANTI-DUMPING PROCEEDINGS BY EXPORTERS IN SPECIFIED COUNTRIES CANNOT IN ANY WAY BE OF DIRECT AND INDIVIDUAL CONCERN WITHIN THE MEANING OF THE SECOND PARAGRAPH OF ARTICLE 173 OF THE TREATY TO AN IMPORTER WHO HAS NOT SHOWN THAT HE ACTUALLY IMPORTED ANY OF THE PRODUCTS IN QUESTION FROM ANY OF THE SAID COUNTRIES AND AN APPLICATION FOR THE ANNULMENT OF SUCH A REGULATION BROUGHT BY SUCH AN IMPORTER IS CONSEQUENTLY INADMISSIBLE.

Parties

IN CASE 304/86

ENITAL SPA, WHOSE REGISTERED OFFICE IS IN MILAN ( ITALY ), REPRESENTED BY DINO RANIERI, OF THE COMO BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT, 34 RUE PHILLIPPE II,

APPLICANT,

COUNCIL OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, ERIK STEIN, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF JOERG KAESER, DIRECTOR OF THE LEGAL DEPARTMENT OF THE EUROPEAN INVESTMENT BANK, 100 BOULEVARD KONRAD ADENAUER,

COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY EUGENIO DE MARCH, A MEMBER OF ITS LEGAL DEPARTMENT, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF G . KREMLIS, A MEMBER OF ITS LEGAL DEPARTMENT, JEAN MONNET BUILDING, KIRCHBERG,

DEFENDANTS,

APPLICATION FOR A DECLARATION THAT COUNCIL REGULATION NO 3018/86 OF 30 SEPTEMBER 1986 AND COMMISSION REGULATION NO 3019/86 OF 30 SEPTEMBER 1986 ARE VOID,

COMPOSED OF : LORD MACKENZIE STUART, PRESIDENT, Y . GALMOT, C . KAKOURIS AND F . SCHOCKWEILER ( PRESIDENTS OF CHAMBERS ), G . BOSCO, T . KOOPMANS, U . EVERLING, K . BAHLMANN, R . JOLIET, J . C . MOITINHO DE ALMEIDA AND G . C . RODRIGUEZ IGLESIAS, JUDGES,

ADVOCATE GENERAL : J . L . DA CRUZ VILASSA

REGISTRAR : P . HEIM

AFTER HEARING THE VIEWS OF THE ADVOCATE GENERAL,

MAKES THE FOLLOWING

Grounds

1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 3 DECEMBER 1986, ENITAL SPA BROUGHT AN ACTION UNDER THE SECOND PARAGRAPH OF ARTICLE 173 OF THE EEC TREATY FOR THE ANNULMENT OF :

COUNCIL REGULATION NO 3018/86 OF 30 SEPTEMBER 1986 REPEALING THE REGULATION ACCEPTING THE UNDERTAKINGS GIVEN RESPECTIVELY BY EXPORTERS IN BULGARIA, CZECHOSLOVAKIA, THE GERMAN DEMOCRATIC REPUBLIC, POLAND AND ROMANIA IN CONNECTION WITH THE ANTI-DUMPING PROCEDURE CONCERNING IMPORTS OF STANDARDIZED MULTIPHASE ELECTRIC MOTORS HAVING AN OUTPUT OF MORE THAN 0.75 KW BUT NOT MORE THAN 75 KW ORIGINATING IN THESE COUNTRIES ( OFFICIAL JOURNAL 1986, L*280, P.*66 ),

COMMISSION REGULATION 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, CZECHOSLOVAKIA, THE GERMAN DEMOCRATIC REPUBLIC, HUNGARY, POLAND, ROMANIA AND THE USSR ( OFFICIAL JOURNAL 1986, L*280, P . 68 ).

2 THE ANTI-DUMPING PROCEEDING WHICH LED TO THE ADOPTION OF THE TWO REGULATIONS AT ISSUE WAS REOPENED BY THE COMMISSION IN NOVEMBER 1985 FOLLOWING AN APPLICATION FOR 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 DURING THE PREVIOUS ANTI-DUMPING PROCEEDING, THE COUNCIL, IN REGULATION NO 2075/82 OF 28 JULY 1982 ( OFFICIAL JOURNAL 1982, L*220, P.*36 ), ON THE ONE HAND ACCEPTED THE PRICE UNDERTAKINGS GIVEN BY THE EXPORTERS IN BULGARIA, CZECHOSLOVAKIA, THE GERMAN DEMOCRATIC REPUBLIC, POLAND AND ROMANIA AND TERMINATED THE PROCEEDINGS IN RESPECT OF IMPORTS ORIGINATING IN THOSE COUNTRIES AND, ON THE OTHER HAND, IMPOSED A DEFINITIVE ANTI-DUMPING DUTY ON IMPORTS OF THOSE PRODUCTS ORIGINATING IN THE SOVIET UNION .

4 FOLLOWING AN APPLICATION FOR A REVIEW OF THAT ANTI-DUMPING DUTY BY THE SOVIET EXPORTER OF THE PRODUCTS IN QUESTION, ENERGOMACHEXPORT, THE COMMISSION, IN DECISION 84/189/EEC OF 5 MAY 1984 ( OFFICIAL JOURNAL 1984, L*95, P.*28 ), ACCEPTED THE UNDERTAKING TO COMPLY WITH A MINIMUM EXPORT PRICE GIVEN BY THAT COMPANY . THE COUNCIL, IN REGULATION NO 1275/84 OF 7 MAY 1984 ( OFFICIAL JOURNAL 1984, L*123, P.*22 ), THEREFORE REPEALED THE DEFINITIVE ANTI-DUMPING DUTY MENTIONED ABOVE AND TERMINATED THE ANTI-DUMPING PROCEEDING IN RESPECT OF THOSE IMPORTS .

5 AFTER CARRYING OUT A REVIEW OF THE ABOVEMENTIONED UNDERTAKINGS, THE COMMISSION, IN REGULATION NO 3019/86 OF 30 SEPTEMBER 1986, REPEALED DECISION 84/189/EEC ACCEPTING THE PRICE UNDERTAKING GIVEN BY THE SOVIET EXPORTER AND THE COUNCIL, FOR ITS PART, REPEALED, BY REGULATION NO 3018/86 OF 30 SEPTEMBER 1986, REGULATION NO 2075/82 ACCEPTING THE UNDERTAKINGS GIVEN BY THE EXPORTERS IN BULGARIA, CZECHOSLOVAKIA, THE GERMAN DEMOCRATIC REPUBLIC, POLAND AND ROMANIA . ALSO IN REGULATION NO 3019/86, THE COMMISSION IMPOSED A PROVISIONAL ANTI-DUMPING DUTY ON IMPORTS OF THE PRODUCTS CONCERNED ORIGINATING IN BULGARIA, CZECHOSLOVAKIA, THE GERMAN DEMOCRATIC REPUBLIC, HUNGARY, POLAND, ROMANIA AND THE SOVIET UNION .

6 THE APPLICANT IS AN ITALIAN COMPANY WHOSE OBJECTS, ACCORDING TO ITS STATUTES, ARE ESSENTIALLY THE IMPORTATION OF PRODUCTS FROM THE SOVIET UNION . MOREOVER, THE APPLICANT WAS REFERRED TO IN ARTICLE 2*(3)*(B ) OF COMMISSION REGULATION NO 3019/86 AS ONE OF THE IMPORTING COMPANIES IN RESPECT OF WHICH THE COMMISSION' S INVESTIGATION SHOWED THAT THERE WAS AN ASSOCIATION OR A COMPENSATORY ARRANGEMENT WITH THE ABOVEMENTIONED SOVIET EXPORTER WITHIN THEMEANING OF ARTICLE 2*(8)*(B ) OF COUNCIL REGULATION 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 ).

7 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 17 DECEMBER 1986, THE APPLICANT APPLIED FOR INTERIM MEASURES SUSPENDING THE OPERATION OF COUNCIL REGULATION NO 3018/86 AND COMMISSION REGULATION NO 3019/86 IN SO FAR AS THE APPLICANT WAS CONCERNED UNTIL THE COURT HAD DELIVERED FINAL JUDGMENT IN THE MAIN PROCEEDINGS . THAT APPLICATION WAS DISMISSED BY ORDER OF THE PRESIDENT OF THE COURT OF 16 JANUARY 1987 .

8 IN A DOCUMENT LODGED AT THE COURT REGISTRY ON 19 FEBRUARY 1987, THE COUNCIL HAS RAISED AN OBJECTION OF INADMISSIBILITY UNDER ARTICLE 91*(1 ) OF THE RULES OF PROCEDURE TO THE EXTENT THAT THE APPLICANT' S ACTION SEEKS A DECLARATION THAT COUNCIL REGULATION NO 3018/86 IS VOID . IN SUPPORT OF ITS OBJECTION, THE COUNCIL STATES THAT THE SAID REGULATION DOES NOT CONCERN THE APPLICANT DIRECTLY AND INDIVIDUALLY SINCE THE LATTER IS ENGAGED IN PARTICULAR IN TRADE IN SOVIET INDUSTRIAL PRODUCTS . HOWEVER, IT CAN BE SEEN FROM THE TERMS OF COUNCIL REGULATION NO 3018/86 THAT THAT REGULATION IS NOT CONCERNED WITH IMPORTS FROM THE SOVIET UNION .

9 ON THE OTHER HAND, THE APPLICANT COMPANY CLAIMS THAT ACCORDING TO ITS STATUTES, ITS COMMERCIAL ACTIVITIES ARE NOT LIMITED TO THE IMPORTATION OR EXPORTATION OF GOODS ORIGINATING IN THE SOVIET UNION BUT THAT IT MAY ALSO ENGAGE IN TRADE IN PRODUCTS ORIGINATING IN OTHER COUNTRIES .

10 FURTHERMORE, IT CLAIMS THAT COUNCIL REGULATION NO 3018/86 AND COMMISSION REGULATION NO 3019/86 WERE ADOPTED AT THE CONCLUSION OF THE SAME REVIEW PROCEDURE AND ON THE BASIS OF IDENTICAL CONSIDERATIONS . CONSEQUENTLY, THE APPLICANT REGARDS THOSE TWO REGULATIONS AS A SINGLE MEASURE .

11 THE QUESTION OF ADMISSIBILITY RAISED BY THE COUNCIL MUST BE RESOLVED IN THE LIGHT OF 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 ADOPTED IN THE FORM OF A REGULATION, IS IN FACT A DECISION OF DIRECT AND INDIVIDUAL CONCERN TO THE APPLICANT .

12 IT SHOULD BE OBSERVED IN THAT REGARD THAT THE ONLY EFFECT OF COUNCIL REGULATION NO 3018/86 WAS TO ABROGATE THE ACCEPTANCE OF THE PRICE UNDERTAKINGS GIVEN DURING THE PREVIOUS ANTI-DUMPING PROCEEDING BY THE EXPORTERS IN BULGARIA, CZECHOSLOVAKIA, THE GERMAN DEMOCRATIC REPUBLIC, POLAND AND ROMANIA IN ORDER TO PERMIT THE COMMISSION TO IMPOSE, IN REGULATION NO 3019/86, A PROVISIONAL ANTI-DUMPING DUTY ON IMPORTS FROM INTER ALIA THOSE COUNTRIES . COUNCIL REGULATION NO 3018/86 DOES NOT THEREFORE CONCERN IMPORTS ORIGINATING IN THE SOVIET UNION .

13 CONSEQUENTLY, IT IS SUFFICIENT TO OBSERVE THAT IN THIS CASE THE APPLICANT HAS NOT SHOWN THAT IT HAS ACTUALLY IMPORTED ANY OF THE PRODUCTS IN QUESTION ORIGINATING IN ONE OF THE FIVE COUNTRIES COVERED BY COUNCIL REGULATION NO 3018/86, WITHOUT IT BEING NECESSARY TO DECIDE THE QUESTION OF THE ADMISSIBILITY OF AN ACTION BROUGHT BY AN IMPORTER AGAINST THE MERE ABROGATION OF THE ACCEPTANCE OF A PRICE UNDERTAKING GIVEN BY AN EXPORTER .

14 IT FOLLOWS FROM THE FOREGOING THAT COUNCIL REGULATION NO 3018/86 IS NOT A DECISION OF DIRECT AND INDIVIDUAL CONCERN TO THE APPLICANT WITHIN THE MEANING OF THE SECOND PARAGRAPH OF ARTICLE 173 OF THE TREATY .

15 FOR THOSE REASONS AN ORDER SHOULD BE MADE PURSUANT TO ARTICLE 91*(3 ) AND ( 4 ) OF THE RULES OF PROCEDURE, AND WITHOUT THE COURT CONSIDERING THE SUBSTANCE OF THE CASE, DISMISSING THE APPLICATION AS INADMISSIBLE TO THE EXTENT THAT IT SEEKS A DECLARATION THAT COUNCIL REGULATION NO 3018/86 IS VOID .

Decision on costs

COSTS

16 UNDER ARTICLE 69*(2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . SINCE THE APPLICANT HAS FAILED IN ITS SUBMISSIONS TO THE EXTENT THAT IT SOUGHT A DECLARATION THAT COUNCIL REGULATION NO 3018/86 IS VOID, IT MUST BE ORDERED TO PAY THE COUNCIL' S COSTS .

Operative part

ON THOSE GROUNDS,

HEREBY ORDERS AS FOLLOWS :

( 1 ) THE APPLICATION IS DISMISSED AS INADMISSIBLE IN SO FAR AS IT SEEKS A DECLARATION THAT COUNCIL REGULATION NO 3018/86 IS VOID;

( 2)THE APPLICANT IS ORDERED TO PAY THE COUNCIL' S COSTS .

LUXEMBOURG, 20 MAY 1987 .