DELIVERED ON 10 JANUARY 1984 (1)

Mr President,

Members of the Court,

In Joined Cases 239 and 275/82, the applicants (Allied Corporation, which has its office in Morristown, New Jersey, United States of America, Michel Levy Morelle, acting as liquidator of Demufert SA, Brussels, Transcontinental Fertilizer Company, which has its office in Philadelphia, United States of America, and Kaiser Aluminium and Chemical Corporation, which has its office in Wilmington, Delaware, United States of America) seek a declaration that Regulation (EEC) No 1976/82 of 19 July 1982 imposing a provisional antidumping duty on certain imports of certain chemical fertilizer originating in the United States of America (Official Journal 1982, L 214, p. 7) and Regulation (EEC) No 2302/82 of 18 August 1982 (Official Journal 1982, L 246, p. 5) amending Regulation No 1976/82 are void and claim damages.

In addition to the questions and submissions formulated in its defence which concern the question of admissibility, compliance with the duty to state the reasons on which a measure is based and the substantive requirements for the adoption of provisional measures in the present case, the Commission raised during the written procedure and particularly during the oral procedure an important general question concerning policy in the matter of legal protection. (2)

During the oral procedure in particular, the Commission put forward a remarkable plea in favour of a broad interpretation of Article 173 of the EEC Treaty in relation to the admissibility of actions brought by exporters from non-member countries against anti-dumping measures which affect their exports to the EEC. The Commission considers that broad interpretation to be desirable not only in the case of definitive antidumping measures but also in the case of provisional anti-dumping measures.

In support of its contention, the Commission relies chiefly on two arguments. The first argument is based on the principle of reciprocity. Express support for that argument is in fact to be found in the fifth recital in the preamble to Council Regulation (EEC) No 3017/79 of 20 December 1979 (Official Journal 1979, L 339, p. 1) which reads as follows: “... in implementing these rules (3) it is essential, in order to maintain the balance of rights and obligations which these agreements sought to establish, that the Community take account of their interpretation by the Community's major trading partners, as reflected in legislation or established practice”. The Commission also observes in that connection that legal protection for the interests of exporters from other countries, including effective legal protection against provisional measures, is widely available also in the United States.

The second argument which the Commission puts forward in favour of making access to the Court widely available to exports from non-member countries who are adversely affected by anti-dumping measures is based on the finding that such exporters may not bring a direct action in the national courts of the Member States against antidumping duties imposed in specific cases. That finding is substantially correct, as I can confirm from my own investigations. Only Belgium and the Netherlands do not in principle rule out altogether the possibility of bringing a direct action but in practice, even in those Member States, as far as I am aware, it is not clear whether this procedure is in fact possible. The significance of that finding lies of course in the fact that considerations relating to a rational division of tasks between the Community Court and the national courts can play no part in the present case. In those circumstances, to declare inadmissible actions brought against anti-dumping measures by exporters from non-member countries on the basis of Article 173 of the EEC Treaty does not, in contrast to the position in most cases, result in those exporters being referred to a competent national court. On the contrary, the effect of a declaration of inadmissibility is to deprive them of any legal protection whatsoever whereas, as I stated earlier, the reverse is true in the United States where Community exporters to that country do indeed enjoy legal protection.

I wish to state at once that I find both of the Commission's arguments — particularly when examined together — in themselves very persuasive. Moreover, I can well understand that the Commission, in its relations with the American authorities, needs an unequivocal general decision from the Court on the question of admissibility, that is to say a decision which is not restricted to the more or less fortuitous circumstances of this case. Moreover, it follows from the nature of the two arguments put forward by the Commission that a general decision of that kind need not set a precedent for the internal regulations of the Community (for instance, those relating to the common agricultural policy) where, moreover, as regards individual implementing decisions, an action may be brought in the competent national court. To these arguments another may be added, namely that dumping is a phenomenon by nature related to forms of distortion of competition which, under the system established by the EEC Treaty, it is normally sought to counter by means of decisions. Dumping is, in particular, a form of cross-frontier price discrimination (made possible by the existence of customs frontiers) (4) which is by nature closely related to the discriminatory practices prohibited by Article 85 (1) (d) and Article 86 (c) of the Treaty.

Moreover, the effects of dumping are comparable to the effects produced by aid measures — which, according to Article 92, are incompatible with the common market — and, in particular, by export aid measures which it is also sought to counter by means of decision. Nevertheless, the broad interpretation advocated by the Commission for these special cases must evidently be more closely examined in the light of the wording of Article 173, the nature of the anti-dumping measures at issue in this case and the case-law of the Court. I will undertake that examination in the second part of my Opinion.

In that connection, I will of course also consider the admissibility of the application lodged by the liquidator of Demufert SA in respect of which the general considerations referred to earlier play a much smaller part. As an importer established within the Community, it was certainly possible for Demufert SA to bring an action in the competent national court of the importing country in cases in which anti-dumping measures were actually applied.

In order to gain a proper understanding of this case, I consider it desirable to begin with a chronological survey of the different stages of the procedure both before and after the applicants brought their actions.

On 26 February 1980 the Commission published a notice of initiation of an anti-dumping proceeding concerning imports of certain chemical fertilizer originating in the United States of America (Official Journal 1980, C 47, p. 2). The proceeding was initiated following the submission in December 1979 of a complaint by the Community fertilizer industry.

On 15 August 1980 a provisional antidumping duty was imposed by Regulation (EEC) No 2182/80 (Official Journal 1980, L 212).

On 12 February 1981 a definitive antidumping duty was then imposed by Regulation (EEC) No 349/81 (Official Journal 1981, L 39, p. 4) which established the average clumping margin at 6.5 %. I shall return in clue cause to the recitals in the preamble to this regulation which are important for the assessment of the dispute.

On 9 February 1981 the American corporations concerned gave undertakings to the Commission relating to compliance [with the prices agreed] and to exemption [from anti-dumping duty] on the basis of Article 2 of Regulation No 349/81 (see Annexes 6 and 9 to the application in Case 239/82 and Decision No 81/35/EEC, Official Journal 1981, L 39, p. 35).

On 24 March 1982 Allied Corporation, owing to changed circumstances, applied for a review within the meaning of Article 14 of Regulation No 3017/79 (5).

On 18 May 1982 the competent department of the Commission replied with a request for more precise evidence of the changed circumstances relied upon before it decided whether a review was necessary (5).

On 7 June 1982 Allied Corporation accordingly withdrew its undertaking after giving the notice of 20 days as provided for in paragraph 9 thereof (6).

Demufert SA had already, on 5 May 1982, brought an action before the Court against a Commission decision, notified to that company by letter of 22 March 1982, refusing a similar request for a review which had been submitted in February 1982. When the Commission subsequently decided to undertake a fresh review, Demufert SA withdrew its application to the Court.

On 2 July and 23 July 1982 Transcontinental Fertilizer Company and Kaiser Aluminium and Chemical Corporation also withdrew their undertakings.

On 16 July 1982 the Commission published a notice of a review (Official Journal 1982, C 179, p. 4) concerning the dumping of certain chemical fertilizer.

On 19 July 1982 a provisional antidumping duty was imposed on Allied Corporation and Transcontinental Fertilizer Company and on 18 August 1982 on Kaiser Aluminium and Chemical Corporation (by Regulation (EEC) No 1976/82, Official Journal 1982, L 214, p. 7, and Regulation (EEC) No 2302/82, Official Journal 1982, L 246, p. 3). Those are the regulations which the applicants seek to have declared void.

On 18 November 1982 the validity of those regulations was extended for a further two months by Regulation (EEC) No 3044/82 (Official Journal 1982, L 322, p. 4).

On 17 January 1983 a definitive antidumping duty was imposed on the three undertakings in question by Regulation (EEC) No 101/83 (Official Journal 1983, L 15, p. 1). As the Court is aware, the applicants brought an action against that regulation imposing a definitive duty in Case 53/83.

As far as the other material facts are concerned, I would at this stage refer to the Report for the Hearing.

I now propose to deal in turn with the admissibility of the applications submitted by the three American undertakings in general (2.3.), the Commission's request for the establishment of general criteria in the matter (2.3.), the admissibility of applications of that kind with regard to provisional measures such as those at issue in this case (2.4.) and the admissibility of the application lodged by the liquidator of Demufert (SA (2.5).

In view of the close similarity to Case 113/77 (NTN Toyo Bearing Company v Council [1979] ECR 1185 — the “ball bearings” case) there is no intrinsic difficulty in coming to the conclusion that the applications submitted by Allied Corporation, Transcontinental Fertilizer Company and Kaiser Aluminium and Chemical Corporation are admissible. Apart from the question of the admissibility of actions brought against provisional measures such as those at issue in this case, which I intend to deal with separately in due course, Article 1 of the contested regulation, No 1976/82, expressly imposes a provisional anti-dumping duty on urea ammonium nitrate solution fertilizer exported by Allied Corporation and Transcontinental Fertilizer Company. The amending regulation, No 2302/82, equally clearly extends the validity of that provisional anti-dumping duty to the third applicant (Kaiser Aluminium and Chemical Corporation).

In the light of paragraphs 8, 9, 11 and 12 of the Court's decision in the “ball bearings” case which I referred to earlier, there is no doubt that the contested regulations are of direct and individual concern to these applicants. Nor can that conclusion be affected by the fact that those regulations are,

independent importers of the products concerned, in the nature of regulations and in that respect they have a dual character. That was also the position in Case 113/79, as is clear in particular from the observations of Mi-Advocate General Warner in that regard in his Opinion in that case ([1979] ECR 1244 and 1245). Nevertheless the dual character of the regulation applicable in that case did not prevent the Court from declaring the application submitted by the exporters concerned admissible. Where a regulation is addressed on the one hand to certain individuals (in this case, in particular, to the American fertilizer exporters and in the ball bearings case both to the Japanese producers and to their importing subsidiaries) and, on the other hand, to a group of addressees which is distinguished only by certain abstract and objective characteristics (all independent importers, both in Case 113/77 and in the present case), that dual character of the regulation is self-evident. In such cases, paragraph 18 of the decision of the Third Chamber of the Court in Case 45/81 (Moksel, [1982] ECR 1129), which was referred to by the Commission in its pleadings, is clearly inapplicable in the light of the Court's earlier case-law on dumping. In that paragraph of its decision the Court held, in relation to the regulation at issue in that case, that “a single provision cannot at one and the same time have the character of a measure of general application and of an individual measure”. Other examples of legal measures of that kind which clearly display a dual character are easy to find. Where, for instance, an undertaking is granted an exclusive right, within the meaning of Article 90 (1) of the EEC Treaty, the grant clearly takes the form of a decision. However, that decision is also by definition of general application, inasmuch as all other undertakings must refrain from engaging in the activities in question.

2.3.As I stated earlier, however, for the policy reasons which it has put forward, the Commission would like to obtain from the Court a more general view with regard to the admissibility of applications submitted by exporters from non-member countries against Community anti-dumping measures. In the “ball bearings” case, Mr Advocate General Warner stated in his Opinion (loc. cit. p. 1245), as regards this general question, merely that the arguments for and against advanced during the proceedings were evenly balanced.

On the basis of the wording of Council Regulation No 3017/79 and of the Anti-Dumping Code, which was adopted in the context of GATT on which that regulation is based, I believe it is now in fact perfectly possible to give unequivocal decisions on the matter, even if one disregards the character of dumping practices, which is intrinsically and in principle individual, a matter on which I have already said all that is necessary in my introductory remarks.

Article 2 (1) of Regulation No 3017/79 provides that “an anti-dumping duty may be applied to any dumped product whose entry for consumption in the Community causes injury”. Article 2 (2) adds that “a product shall be considered to have been dumped if its export price to the Community, is less than the normal value of the like product”. As regards the last phrase which I have italicized, the words used in the German version are “der gleichartigen Art”, in keeping with the wording of Article VI of GATT. Article VI of GATT refers to “the comparable price, in the ordinary course of trade, for the like product when destined for consumption in the exporting country”. The English text of the regulation also refers to “the like product”. The words which I have stressed and the context in which they are set (7) are in themselves sufficient to show in my view that anti-dumping duties must be imposed on specifically identified products and not on all like products (for instance, those in the corresponding category of the Common Customs Tariff). The normal value of a product on the domestic market, like the export price of that product, may, at least in countries with a market economy, vary as between producers. Article 2 A of the contested regulation therefore in itself provides an important indication that anti-dumping duties may in principle be imposed only on products exported by specifically identified undertakings.

The most important exceptions to that principle are of course exports from the State-trading countries and exports which are cheaper as a result of the subsidies granted to an entire sector of industry. In such cases, however, Articles 2 (5) and 3 provide for certain exceptions which indirectly confirm the principle which I have elicited from Article 2 (1) and (2).

Even clearer indications that such a principle exists are to be found in the general rule laid down in Article 2 (3) (a). According to that general rule, the normal value “shall be the comparable price actually paid or payable in the ordinary course of trade for the like product intended for consumption in the exporting country or country of origin” [the Dutch text has “een soortgelijk produkt”]. Article 2 (4) (which, as a derogation, does not seem in that form to have a precise basis in the GATT Code) also clearly has in mind individual undertakings. Only in the case of individual undertakings (for instance, on the basis of their losses as shown in their annual accounts) will there be “reasonable grounds for believing or suspecting that the price at which a product is actually sold for consumption in the country of origin is less than all costs, both fixed and variable, ordinarily incurred in its production” (first subparagraph of Article 2 (4)).

Similarly, paragraphs (7), (8), (9) and (10) of Article 2 clearly refer to a principle of individual assessment of the various exporters and of the individual conditions under which they export.

The practice of the anti-dumping policy which frequently leads to a situation where different charges are imposed on different undertakings ultimately confirms also the — in principle — individual character of dumping practices.

In conclusion, therefore, I consider that — except in special circumstances, evidence of which must be adduced in a specific case — it may be stated as a rule that anti-dumping duties imposed on exporting undertakings from non-member countries are of direct and individual concern, within the meaning of Article 173 of the EEC Treaty, to all such undertakings. Moreover, it is clear from paragraph 14 of its defence that the Commission, too, does not rule out entirely a conclusion of that kind, albeit on the basis of a somewhat different and briefer argument. I share the Commission's view that, for the reasons which it gave during the oral procedure, it would also be highly desirable if the Court were to lay down such a general rule in its judgment, before going on to state the specific grounds justifying its application in the case in point. The importance of such a general rule lies not only in the consideration put forward by the Commission to the effect that, in the absence of such a rule, the decisions of the Court might be excessively dependent on the manner in which a regulation of the kind at issue is drafted, which is the result of fortuitous circumstances. Its importance also lies in the consideration that the Community thus dispenses legal protection for the benefit of exporters from non-member countries which is comparable to that available in the United States with the result that the principle of reciprocity established by GATT is observed.

2.4.It was only in its rejoinder that the Commission raised the question whether, as regards provisional anti-dumping duties, there were any specific grounds for questioning the admissibility of applications such as those submitted in this case.

In contrast to the Commission, I consider that to base that doubt primarily on paragraph 6 of the decision of the Court in Case 307/81 (Alusuisse ν Comicii and Commission, [1982] ECR 346) is unjustified. In my view, it follows from the second and third sentences of that paragraph that in its judgment the Court considered the question of admissibility in relation to definitive and provisional measures in the light of the same criteria.

The Commission goes on to find support for its doubt in paragraph 10 of the decision of the Court in Case 60/81 (IBM, [1981] ECR 2639). That paragraph must however be read in conjunction with paragraph 9. In the latter paragraph, the decisive criterion is worded as follows:

“According to the consistent case-law of the Court any measure the legal effects of which are binding on, and capable of affecting the interests of, the applicant by bringing about a distinct change in his legal position is an act or decision which may be the subject of an action under Article 173 for a declaration that it is void.”

According to paragraphs 19 and 20 of the decision in the IBM case, the question at issue there was whether the initiation of a proceeding concerning certain restrictive practices and the issue of a statement of objections constitute a measure of the kind in question and it was in regard to such action by the Commission that the Court came to the conclusion, on the basis of the principles established in paragraphs 9 and 10 of its decision, that the application was inadmissible. It is, however, indisputable, on the basis of the unequivocal wording of Article 1 of Regulation No 1976/82, as amended by Regulation No 2302/82, that the legal effects of the regulations at issue in this case are binding, within the meaning of paragraph 9 of the IBM judgment. In that connection, a comparison with the judgment of the Court in Joined Cases 8 to 11/66 (Cimenteries ν Commission, [1967] ECR 75), which was referred to by Advocate General Sir Gordon Slynn in his Opinion in the IBM case, would be more appropriate.

Accordingly, I conclude that the admissibility of the application submitted by the three American undertakings in this case is also not invalidated by the fact that the application is directed against regulations which are in the nature of provisional measures.

Finally, unlike the Commission, I consider that the application submitted by the liquidator of Demufert SA is also admissible. It is not disputed that since 1971 Demufert SA has been the sole importer of the applicant Allied Corporation's products and consequently, in spite of its separate legal personality, it has been wholly dependent economically on that applicant's export possibilities. Demufert SA was not therefore part of a group of independent importers, defined merely in abstract terms in accordance with objective criteria, as laid down by the Court in paragraphs 9 and 11 of its judgment in Case 307/81 (Alusuisse, [1982] ECR 3463). On the contrary, as I observed earlier, the regulation of which Demufert SA complains concerns it in its capacity as exclusive importer of the products of one of the American exporters to whom the regulation is of individual concern. It is that capacity which distinguished Demufert SA from all the non-exclusive importers at the time when the provisional anti-dumping measures were adopted. Accordingly, the provisional anti-dumping measures were of direct and individual concern within the meaning of the second paragraph of Article 173 of the EEC Treaty also to Demufert SA in contrast to other independent importers.

For the sake of clarity I would merely add that, as the Commission, too, acknowledges, it is necessary according to the case-law of the Court, as regards the question of admissibility, that a distinction should in fact be drawn between independent importers and importers who are dependent (on an exporter), in spite of the fact that the anti-dumping regulations themselves draw no such distinction. As regards the undertaking Alusuisse, an “independent importer” was defined in paragraph 3 of the Alusuisse judgment as “one which is not linked to a manufacturing or exporting undertaking”. As I said earlier, Demufert SA has links of that kind. In the ball bearings case not only Japanese ball bearings producers but also their subsidiaries established within the Community were regarded as being, notwithstanding their independent legal personality, directly and individually concerned since “NTN and its subsidiaries are sufficiently closely associated” (paragraph 9 of the decision). As the result of a submission by the Council that “only implementing measures adopted by the national authorities are of direct concern to the importers and... these importers should therefore, where appropriate, bring the matter before the national courts having jurisdiction”, the Court went on to add (paragraph 11 of the decision) the important consideration that “the allegation... disregards the fact that such implementation is purely automatic and, moreover, in pursuance not of intermediate national rules but of Community rules alone”. Accordingly, the Court's conclusion (paragraph 12 of the decision) was worded as follows: “Article 3 of Regulation No 1778/77 is therefore of direct and individual concern to those importers and consequently the applications lodged by the subsidiaries, as importers of NTN products, are admissible”.

Similarly, Demufert SA, in its capacity as sole importer for Allied Corporation, was economically dependent on that American producer. The application submitted by Demufert SA must therefore also be declared admissible.

3.1.The applications are based primarily on Article 173 of the EEC Treaty and secondarily on the second paragraph of Article 215 thereof.

The applicants contend primarily that the statement of the reasons on which Regulations No 1976/82 and No 2302/82 are based are inadequate inasmuch as they make no mention of the requirement of “material injury [or the threat thereof] to an established Community industry” (Article 4 (2)), which is prescribed by Articles 4, 7 and 11 of Regulation No 3017/79 even for the imposition of provisional duties. This submission must be rejected on the ground that the second recital in the preamble to Regulation No 1976/82 (as amended by Regulation No 2302/82), which refers to Regulation No 349/81, explained very well the reasons for the existence of injury within the meaning of Article 4 of the basic regulation. I would also refer in this connection to the last recital on page 5 and to the first three recitals on page 6 of the Official Journal (L 39), in which Regulation No 349/81 was published. Admittedly, the statement of reasons in this case was concise and, in particular, did not deal with the reasons put forward by the applicants in support of their request for a review and of the withdrawal of their undertakings. However, according to the case-law of the Court referred to in part 10 of my Opinion and in paragraph 19 of the decision in Joined Cases 292 and 293/81 (Lion, Loiret and Haentjens ν Fonds d'Intervention et de Régularisation du Marché du Sucre, [1982] ECR 3887), the applicants cannot rely on that factor either. The submission that the statement of reasons is inadequate must therefore be rejected.

The argument advanced by the applicants to the effect that both regulations involve the automatic application of Article 10 (6) of Regulation No 3017/79 must likewise be rejected. The final recital in the preamble to Regulation No 1976/82 shows clearly that the imposition of provisional duties took place after the Commission had reopened the proceeding in order to conduct a further investigation, the applicants are right only in so far as they maintain that the penultimate recital in the preamble to Regulation No 1976/82 and the penultimate recital in the preamble to Regulation No 2302/82 convey the impression that exemption from the anti-dumping duty in question was withdrawn from them on the sole ground that they had renounced their undertakings. In that connection, it seems to me important to state that the renunciation of an undertaking, in circumstances such as those of this case, in conformity with the period of notice expressly provided for in that undertaking, cannot as such in fact justify a provisional measure within the meaning of Article 10 (6) of the basic regulation. According to the wording of that provision, a provisional measure of that kind must not only be called for in the interests of the Community but must also be “warranted”. The latter requirement clearly refers to the three conditions which according to Article 11 of the regulation must always be satisfied for the imposition of antidumping duties and which include the submission of sufficient evidence of the injury caused by the dumping practice established. That strikes me as particularly important since both the reference in the contested regulations to Article 10 of the basic regulation in particular and the penultimate recital in the preamble to the two contested regulations, and also the Commission's defence, conveyed the impression that, originally, the Commission based the provisional measures exclusively on the withdrawal by the American applicants of their undertakings. The applicants were right to draw attention to this during the oral procedure. Where undertakings within the meaning of Article 10 of the basic regulation are given, it must also be possible to withdraw such undertakings in accordance with the terms provided for therein, without that withdrawal, as such and in itself, justifying provisional measures within the meaning of Articles 10 (6) and 11 of the regulation. It has become apparent however from the Commission's rejoinder and from the explanations furnished by it at the hearing that the contrary impression conveyed did not reflect the true position and that the Commission did in fact also take account of the other conditions.

The most important submissions of the applicants are concerned with certain new facts to which they refer and which supposedly throw new light on the alleged injury. Those facts are as follows:

(a) three decisions published on 12 December 1981 by the French Minister for Economic Affairs and Finance against restrictive agreements in the production and marketing of chemical fertilizer. The requests submitted by the applicants, on 1 February 1982, 22 February 1982 and 24 March 1982 which were based on those decisions and in which they sought a review of the anti-dumping measures adopted were rejected on 22 March 1982 by the Commission in a letter to Demufert SA and also in a subsequent letter (see the application and the corresponding annex thereto in Case 239/82);

(b) the substantial rise in the value of the dollar since the initiation of the antidumping proceeding on 26 February 1980;

(c) the substantial decline in Community imports of the chemical fertilizer in question (the market share of such imports fell from 50 % in 1979/80 to 28.5 % in 1981/82);

(d) the new fact referred to by the applicants in their reply, namely the measures on prices adopted on 14 June 1982 by the French Minister for Economic Affairs and Finance. As a result of the adoption of those measures, the applicants prices in the second half of 1982 were higher than the price level of French chemical fertilizer.

As regards the first new fact, referred to under (a), however, the Commission has already pointed out in its defence that the measures which it adopted were based on its own market surveys conducted in a period coinciding with, or even following, the period to which the French decisions against the restrictive agreements related. Moreover, the applicants have failed to demonstrate, in the Commission's view, that the decisions in question also applied to urea ammonium nitrate solution fertilizer which is at issue in this case. That submission of course raises the question whether the Commission does not itself doubt whether the French chemical fertilizer producers do in fact manufacture that specific product which forms the subject-matter of the anti-dumping measures. I also have misgivings as regards the Commission's reply to Demufert SA of 22 March 1982 to the effect that, in the absence of the restrictive agreements referred to, the prices charged by the French fertilizer industry, which were already too low, would have been even lower and consequently the losses incurred by the fertilizer industry would have been even greater (see Annex 7 to the application in Case 239/82, which is referred to on page 6 of the Commission's defence). I doubt whether it is compatible with the purpose of the GATT Code and the basic regulation to establish a link between the extent of the injury and a level of prices in the importing country, which is artificially high as a result of restrictive agreements.

As far as the second new fact, referred to under (b), is concerned, the Commission rightly points out in the first place that export prices were expressed in dollars and that consequently the increase in the value of the dollar had no effect on the dumping margin established. As regards the relevance of the increase in the value of the dollar in relation to the requirement as to the existence of injury, the Commission observes in its rejoinder that, in spite of that increase, imports of the chemical fertilizer in question from the United States rose by a further 60 % in the first four months of 1982. In reply to a question put to it by the Court, the Commission added during the oral procedure that the increase in the value of the currency of an exporting country can in principle be relevant only if the increase is very substantial, if it has not been interrupted for a sufficient length of time by an intervening depreciation and if it has had a serious impact on the injury sustained by Community producers. As far as the injury is concerned, the Commission claims to have established from the outset that the average import prices of the American chemical fertilizer at issue, in spite of the increase in the value of the dollar, were approximately 10 % lower than the selling prices of the four largest fertilizer producers in France. The Commission also claims to have found that imports of the fertilizer in question originating in the United States, after declining in 1981, rose in the first months of 1982 by over 60 % in comparison with the corresponding period in 1981. Similarly, according to the Commission, in the Federal Republic of Germany there was a substantial growth in the imports in question from the United States in the period between June 1981 and May 1982 following an initial decline.

Those counter-arguments put forward by the Commission also contain the Commission's view as regards the third new fact relied upon by the applicants, and referred to under (c), namely the alleged decline in imports.

As far as the fourth, new fact referred to under (d) is concerned, namely the price-freezing measures which were adopted on 14 June 1982, the Commission observes in its rejoinder that, at the time of the application of the provisional measures, the price-freezing measures could not yet have had an impact on the level of prices of French chemical fertilizer.

I will not deny that the Commission's argument calls for a number of marginal comments and gives rise to a number of queries. The most important marginal comment is that it may appear from the statistics produced by the applicants at the hearing, after they have been checked to ascertain whether they are correct, that the injury established by the Commission which was caused to French producers in 1982 and also in 1983 is attributable to a far greater extent to imports from the Netherlands than to imports from the United States. This raises certain questions concerning the second sentence of Article 4 (1) of Regulation No 3017/79. It is also questionable whether the Commission was right to focus its investigation concerning the “injury to an established Community industry” on the injury caused to French producers, since it might perhaps be inferred from those statistics (and also from part of the Commission's defence) that during the period in question Netherlands producers held a larger share of the French market in urea ammonium nitrate solution (UAN) than French producers.

In my view, however, those queries and marginal comments are not of decisive significance in the present proceedings. Provisional duties may generally be imposed under Article 11 of the basic regulation even on the basis of a provisional investigation and in that connection the Commission in general already enjoys a wide discretionary power. Where an undertaking has been withdrawn, within the meaning of Article 10 (6) of Regulation No 3017/79, by the contracting parties, the Commission's discretionary power becomes even wider in scope. By virtue of the second sentence of Article 10 (6) the Commission may, where the interests of the Community so require, immediately apply provisional measures, where on the basis of the information available, it comes to the conclusion that such provisional measures are warranted (that is to say, in my view, where the three conditions laid down in the first sentence of Article 11 (1) for the imposition of provisional measures are satisfied).

In any event, it is clear from the Commission's arguments in defence that it has taken account of the new facts put forward by the applicants. The Commission has also convincingly demonstrated, in my view, that in connection with its discretionary power in relation to the adoption of provisional measures on the basis of Article 10 (6) of the regulation, it was under no obligation to attach any decisive significance to those new facts by comparison with the information from other sources which was available to it at the time. As the applicants have themselves acknowledged and as is clear from the correspondence produced after the hearing, they did not accede to the Commission's request for further evidence of those new facts. In my view, the Commission was entitled to consider, in the context of the discretion vested in it, that where an undertaking had been withdrawn in circumstances of that kind, the interests of the Community called for the immediate application of provisional measures in order to avoid a legal vacuum.

I am therefore of the opinion that the applications for a declaration that the regulations contested by the applicants are void must be dismissed.

Since the primary applications for a declaration that Regulations No 1976/82 and No 2303/82 are void must, in my view, be dismissed, even though they are admissible, it seems clear to me that the ancillary applications for damages must also be dismissed. It is impossible, in my view, to find that the non-contractual liability of the Community is incurred for any damage arising from lawfully adopted provisional measures such as those at issue in this case. In my view therefore it is no more necessary for me to deal with the questions of admissibility raised in that connection by the Commission than it is for me to consider the question of the extent to which provisional measures such as those at issue in this case can cause definitive injury which is capable of being quantified.

To summarize, I am of the opinion that:

—

(1) Translated from the Dutch.

(2)At the hearing the Commission used in that regard the expression “politique juridiciionelle” which in my view however reflects the object of its argument less clearly than the expression “policy in the matter of legal protection”.

(3)According to the third and fourth recitals in the preamble to Regulation No 3017/79, the rides in question arc those amending the anti-dumping rules previously in force in the Community in the light of the Anti-Dumping Code adopted in 1979 in the context of the General Agreement of Tariffs and Trade (GATT) and of the agreement concerning subsidies and countervailing measures which was concluded in the same context.

(4)The internal dumping rules contained in Article 91 of the EEC Treaty were valid, on account of that factual connection with the existence of customs frontiers, only for the duration of the transitional period.

(5)Copies of those three letters were transmitted by the Commission to the Court on 15 November 1983 following the oral procedure, in compliance with an undertaking given by the Commission in reply to a question put to it by the Court at the hearing. By letter of 16 November 1983, one of the applicant's lawyers assured the Court that an applicant had not sent any other letters to the Commission during that period.

(6)Copies of those three letters were transmitted by the Commission to the Court on 15 November 1983 following the oral procedure, in compliance with an undertaking given by the Commission in reply to a question put to it by the Court at the hearing. By letter of 16 November 1983, one of the applicant's lawyers assured the Court that an applicant had not sent any other letters to the Commission during that period.

(7)This context is substantially different from the context in which the expression “the like product” is set in Articles I.1 and II.2 (a) of GATT. See also in this regard Article 2 (12) of the regulation in question.