Important legal notice

61996C0177

European Court reports 1997 Page I-05659

Opinion of the Advocate-General

1 This case, which comes by way of a reference from the Rechtbank van Eerste Aanleg (Court of First Instance), Antwerp, concerns the impact of the fragmentation of the Socialist Federal Republic of Yugoslavia (`SFRY') upon a Commission Decision imposing anti-dumping duty on imports of specified steel products `originating in Yugoslavia' (`the definitive duty decision' or `the Decision'). (1) The issue is essentially whether the Decision covered imports from the Former Yugoslav Republic of Macedonia (`FYROM') following FYROM's declaration of independence.

The legislative framework

2 The Decision was adopted against the background of a series of measures taken by the European Coal and Steel Community since 1977 (2) regulating the procedure and powers of the Commission in anti-dumping and subsidy investigations under the ECSC Treaty, culminating at the material time in Commission Decision 2177/84 (`the Basic Decision'). (3) The rules embodied in those measures `were adopted in accordance with existing international obligations, in particular those arising from Article VI of the General Agreement on Tariffs and Trade (hereinafter referred to as GATT), [and] from the Agreement on Implementation of Article VI of the GATT (1979 Anti-Dumping Code)'. (4)

3 Article 1 of the Basic Decision provides that its purpose is to provide `for protection against dumped or subsidized imports from countries which are not members of the European Coal and Steel Community'. Article 2 provides the method for assessing whether dumping has occurred; that is complemented by Article 4 which covers the essential element of injury. Complaints made under Article 5 may in appropriate circumstances lead to a Commission investigation, to be conducted in accordance with the procedure set up under Article 7. Unless the proceedings are discontinued, for example where protective measures appear unnecessary (5) or acceptable undertakings are offered by those under investigation, (6) provisional (7) or definitive (8) duties are to be imposed.

4 Article 13 contains general provisions on duties. Article 13(2) provides:

`Such [anti-dumping] measures shall indicate in particular the amount and type of duty imposed, the product covered, the country of origin or export, the name of the supplier, if practicable, and the reasons on which the measures are based.'

5 Article 14 of the Basic Decision allows decisions imposing duties to be reviewed on the initiative of Member States or the Commission, or, at least a year after the initial investigation, by an `interested party'. That article continues:

`2. Where, after consultation, it becomes apparent that review is warranted, the investigation shall be reopened in accordance with Article 7, where the circumstances so require. Such reopening shall not per se affect the measures in operation.

6 Finally, Article 16 provides for the reimbursement of improperly levied duty.

The background to the anti-dumping duties in issue

7 In February 1986, the Commission initiated an anti-dumping proceeding in respect of certain specified steel products `originating in Yugoslavia'. (9)

8 By Decision 2767/86 (10) provisional duties of ECU 68 per 1 000 kilograms were imposed on specified products `originating in Yugoslavia'. (11) That decision expressly referred to Rudnici i Zelezarnica Skopje (`Rudnici'), a producer and exporter in what is now FYROM. (12) At that time, of course, `Yugoslavia' could only have been intended to mean the then territory of the Socialist Federal Republic of Yugoslavia (`SFRY').

9 In December 1986, the Commission accepted an undertaking from the Yugoslav exporters concerned which was designed to eliminate the injury caused by the dumped products. (13)

10 In January 1988, following complaints that the abovementioned undertaking had been breached, the Commission by Decision 229/88/ECSC (14) re-imposed provisional anti-dumping duties of ECU 68 per 1 000 kilograms on specified steel products `originating in Yugoslavia'.

11 Finally, on 18 July 1988, the Commission adopted the definitive duty decision, (15) imposing definitive anti-dumping duties of ECU 48 per 1 000 kilograms on imports of certain specified iron and steel products `originating in Yugoslavia'.

12 The definitive duty decision entered into force on 20 July 1988 (16) for a period of five years from that date or from any subsequent modification or confirmation. (17)

13 In February 1990, the Yugoslav Iron and Steel Federation lodged a request that the Commission review the anti-dumping duties in force in view of allegedly changed competitive circumstances. The Commission considered that those changes were sufficient to justify initiating a review of the Decision.

14 In 1992 the Commission found in its review investigation that dumping and injury persisted, albeit at a slightly attenuated level. It accordingly amended the Decision by Decision 2297/92, which came into force (18) on the day following its publication in the Official Journal, namely 7 August 1992. (19)

15 The Decision as amended (`the Amended Decision') imposed anti-dumping duty on the same categories of steel products as those specified in the Decision before amendment where such products `originat[ed] in the Republic of Slovenia ... and the Yugoslav Republics of Macedonia ..., Montenegro ..., and Serbia'. (20) The duty was set at the slightly reduced level of ECU 44 per 1 000 kilograms. (21) It was expressed not to apply to products originating from three named producers, including Rudnici, (22) which had offered undertakings to the Commission and in respect of which the Commission had decided to terminate the investigation without imposing definitive duties.

The facts and the main proceedings

16 On 17 September 1991, FYROM declared its independence; that was a reflection of the continuing disintegration of SFRY into a number of geographically smaller States, which largely corresponded to the individual Republics constituting the old Federation. (23)

17 Between 1 May 1992 and 31 July 1992 (i.e. before the definitive duty decision was amended), Stahlhandel Schmitz GmbH, a company incorporated in Germany, imported steel products of a type caught by the Decision. Such products were imported into the Belgian-Luxembourg Economic Union and originated in FYROM from the producer Rudnici; it is not clear whether the applicants had imported Rudnici products at any earlier time. By 31 July 1992 the Belgian authorities had levied and received anti-dumping duties totalling BFR 14 863 825.

18 On 18 May 1994, Stahlhandel Schmitz, its guarantor Banque Indosuez, a company incorporated in Switzerland, and the customs agent NV Rijn- en Kanaalvaartexpeditie, a company incorporated in Belgium, commenced proceedings before the Belgian courts. The action, brought against the Belgian State, sought recovery of the duties paid, apparently on the basis that the Decision was not applicable to their steel imports and that therefore the duties had been unlawfully levied. By judgment given in default of appearance on 29 June 1994, the Antwerp Court of First Instance ordered the restitution of the duties. The Belgian State disputed the judgment under a procedure available to a party not represented in the proceedings. The proceedings were accordingly reopened; in addition, third-party proceedings were commenced against the European Community, which did not appear.

19 It appears that the thrust of the applicants' argument before the national court was that the Decision referred to imports from Yugoslavia and so was incapable of applying to their imports which, as from FYROM's declaration of independence, no longer came from Yugoslavia but from FYROM. That argument appears to be based on international law principles of State succession: it is submitted that the Federal Republic of Yugoslavia (Serbia and Montenegro) (`FRY') was the sole successor of the former SFRY and thus - to the exclusion of FYROM - inherited from the former SFRY liability to duties. The applicants also appear to have relied upon the fact that the Amended Decision, in contrast to the definitive duty decision, referred expressly to FYROM.

The questions referred

20 On 13 May 1996 the Antwerp Court of First Instance decided to refer the following questions to this Court for a preliminary ruling:

`1. Does the name "Yugoslavia" in Commission Decision 2131/88/ECSC also refer to the State of Macedonia-Skopje after it had broken away from (what remained of) Yugoslavia?

2. Are the import duties which are to be levied in accordance with Decision 2131/88/ECSC on imports into the Belgian-Luxembourg Economic Union of steel products originating in Yugoslavia also applicable to such imports originating in the State of Macedonia-Skopje between 1 May 1992 and 31 July 1992 inclusive?'

21 The Belgian Government and the Commission have submitted that the two questions are linked. The Belgian Government contends that an affirmative answer to the first question necessarily implies an affirmative answer to the second. The Commission contends that in reality the two questions can be considered as one. In my view those arguments are essentially correct and the two questions should be reformulated as follows:

`Are the anti-dumping duties which, in accordance with Commission Decision 2131/88/ECSC, were to be levied upon imports of specified steel products "originating in Yugoslavia" to be regarded as applicable to the same steel products originating in the Former Yugoslav Republic of Macedonia in the period between 1 May 1992 and 31 July 1992?'

22 Written observations have been received from the Belgian Government and the Commission. Although the applicants have failed to submit observations, their stance can be discerned from their arguments in the main proceedings, summarized above. The principal issue separating the applicants on the one hand and the Belgian Government and the Commission on the other is the question whether the international law rules on State succession are relevant. I shall deal first with that issue, which in the circumstances of this case will require me to consider also the nature of anti-dumping duties. In the light of my conclusion on that issue, I shall then turn to the interpretation of the Decision; in that context, I will consider the question of legal certainty.

The nature of anti-dumping duties

23 The Commission points out that the central objective of anti-dumping measures, namely preventing an established Community industry from being injured by the release into free circulation in the Community of dumped products, would be undermined if a manufacturer of products subject to anti-dumping duties could avoid those duties solely because the authorities of the territory in which it was situated had declared independence. Even if, as a matter of international law, that manufacturer thereafter fell within the jurisdiction of a new State, it would not follow that its dumping practices no longer injured Community industry.

24 The Belgian Government and the Commission both refer to the structure and mechanism of the imposition and collection of anti-dumping duties as demonstrating that anti-dumping measures do not give rise to debts due by States but to duties analogous to customs duties which are payable by the individual importer in the Community.

25 I find those arguments persuasive. Clearly, the critical phrase used, namely `originating in Yugoslavia', must be interpreted not only for its plain meaning but also according to its context and according to the objectives of the Decision and the legal regime of which it is part. (24) The imposition of anti-dumping duties, whether in the form of regulations in the case of EC measures or in the form of decisions in the case of ECSC measures, is ultimately intended to protect Community industry from imported products which are priced below their normal value and hence liable to injure Community producers. Such injury is prevented by imposing anti-dumping duties upon importers of such products. The focus of anti-dumping measures is the products and their provenance: measures are taken against imports from a particular country, normally on the basis of investigations of selected producers. The geographical origin of the products is the only criterion relevant in commercial or economic terms: a change of political boundaries or name is in itself of no relevance to the economic purpose of anti-dumping duties.

26 The usual practice in anti-dumping regulations or decisions is to name the specific producers of goods subject to anti-dumping duties. However, as is apparent from Article 13(2) of the Basic Decision, where a group of suppliers is subject to anti-dumping measures and it is not practicable to provide the names of each producer, it is permissible to use a more general term denoting territorial origin (significantly indicated in the Basic Decision as `country' rather than `State'). The use of a geographical or territorial term as a form of shorthand for all the producers of the specified goods active in that region in no way detracts from the essential nature of the definitive duty decision, namely as an act directed towards products imported from a particular area.

27 There is thus no linkage to public international obligations simply because of the use of State territorial origin as a descriptive term identifying the product. Admittedly, representatives of the exporting country are entitled to be notified of a decision by the Commission to initiate an anti-dumping proceeding, (25) and such representatives have further rights under the procedure. (26) Clearly, questions of public international law, such as the question who is a governmental representative and with effect from what date, might arise and fall to be answered using principles of State and governmental recognition and State succession where it is claimed that those rights have not been respected. (27) However, no such issues arise in the present case; there is no challenge to the procedure as such and the question of interpretation arises solely in respect of the operative provisions of the resulting decision which remains an act directed at products with a particular provenance.

28 Finally, I am satisfied that nothing can be extracted from the amendment of the terminology apparent in the Amended Decision that alters the above analysis.

29 First, as the Commission points out, the definitive duty decision is in any event of continuing validity until any revision takes effect: see Article 14(2) of the Basic Decision.

30 Secondly, the changes in the Amended Decision, which reflect the greater geographical precision possible in the light of the Commission's review (which showed that there were no dumped steel products originating from the Republics of Bosnia Herzegovina or Croatia) and the evolving fragmentation of SFRY, do not affect the interpretation of the definitive duty decision before the amendments were made.

31 Accordingly, the applicants' arguments about State succession are largely irrelevant; once the terminology of the Decision is seen for what it really is, namely a means whereby State territorial or geographical boundaries are used solely as a form of shorthand which saves identifying individual producers operating within those boundaries, it can be seen that such terminology does not detract from the product-orientated nature of anti-dumping measures.

33 The final matter that remains to be considered is the issue of legal certainty, namely whether the term `originating in Yugoslavia' was sufficiently clear and precise to allow the imposition of anti-dumping duties on all steel products originating in the former SFRY, including FYROM. Essentially, the Commission and the Belgian Government argue that in the relevant period the term `originating in Yugoslavia' should be understood as `originating in any of the successor States to SFRY', thus including FYROM. The territorial descriptive term `Yugoslavia' that was used in the definitive duty decision should be interpreted as meaning those States collectively.

34 Although the applicants do not appear expressly to have invoked the principle of legal certainty, it is in my view inherent in their submissions, being an alternative way of viewing their arguments about State succession and the alleged continuity of SFRY and FRY. It is also inherent in the question of interpretation framed by the national court. Even if one accepts the arguments of the Commission and the Belgian Government about the nature of anti-dumping duties and the irrelevance of State succession, there still remains the issue whether it is consistent with the principle of legal certainty that `Yugoslavia' should be considered to mean `all successor States to SFRY'.

35 In Van Es, a case concerning agricultural levies and import duties, the Court held that:

`the principle of legal certainty is a fundamental principle of Community law ... which requires in particular that rules imposing charges on a taxpayer be clear and precise so that he may be able to ascertain unequivocally what his rights and obligations are and take steps accordingly'. (28)

36 That case concerned the replacement of the old Common Customs Tariff Nomenclature with the new Combined Nomenclature. Regulations were passed under the old Common Customs Tariff Nomenclature Regulation classifying certain maize products in particular ways. However, when the Common Customs Tariff Nomenclature was repealed, those regulations were not replaced, nor were their classifications amended to conform with Combined Nomenclature terminology. The Court was essentially asked whether old regulations could be used to reclassify products that would otherwise be free from levies and duties so as to subject them to such payments. The Court found that the Commission was required:

`to amend the regulations adopted on the basis of [the Common Customs Tariff Nomenclature Regulation] which were still of practical significance at the time of the adoption of the combined nomenclature, so that individuals may be able to ascertain unequivocally what their rights and obligations are and take steps accordingly. In the absence of such amendments, it may prove difficult for individuals to ascertain precisely what their legal position is.' (29)

37 Although the principle so formulated may seem wide enough to apply in the present case, the Van Es case is in my view very different. In that case, the Commission was under an express obligation to amend the legislation, and the Court held that the unamended legislation could not be applied; there was moreover real uncertainty as to the legal position since there were significant differences between the old and the new classifications which did not permit individuals to ascertain their legal position. In this case, in contrast, there was no such express obligation and, as will be shown below, the applicants' legal position was for a number of reasons readily ascertainable.

38 First, it is to my mind clear both from the terms of the Decision itself and from its legislative context that it was applicable to the products at issue in these proceedings. Decision 2767/86, (30) which first imposed provisional duties on specified products `originating in Yugoslavia', specifically mentioned Rudnici among the exporters being investigated. (31) Rudnici was listed as one of the Yugoslav exporters whose undertakings to the Commission subsequently led to the termination of that investigation. (32) Decision 229/88 (33) re-imposing provisional anti-dumping duties on the products concerned clearly applied to Rudnici since it expressly states that the Commission repealed its acceptance of the undertakings referred to in Decision 86/639, which included Rudnici's undertaking. (34) At the same time, the Commission reopened its anti-dumping investigation. Again, it is clear from the notice of the reopening of the investigation, (35) which is couched in terms of the Yugoslav exporters whose undertakings were accepted in Decision 86/639, that Rudnici was among the exporters under investigation. Although the Decision does not expressly mention Rudnici, it is clear from the previous measures referred to in the preamble and from the reference throughout to `the Yugoslav exporters/producers concerned/known to be concerned' that the Decision covered products manufactured and exported by Rudnici. (36)

39 Secondly, it is equally clear to my mind that the definitive duty decision was intended to apply to the entire territory of SFRY, since at the time it was made and during the investigations and impositions of provisional duties which culminated in the Decision there was no other feasible meaning for `Yugoslavia', the term used in the Decision and its precursors. Although the State of Yugoslavia or SFRY has ceased to exist, the word still performs essentially the same shorthand function as before; it denominates exactly the same territorial or geographical scope (although now `Yugoslavia' would be seen as a primarily regional or historically descriptive term that is itself shorthand for a collection of States). The territorial boundaries or geographical contents of that descriptive label remain unchanged.

40 Further support for the view that `Yugoslavia' in the Decision meant all the territories of SFRY is provided by the fact that, as shown above, the Decision unquestionably applied to products imported from a manufacturer in what is now FYROM, namely Rudnici; moreover, the Decision also clearly applied to products imported from a manufacturer in what is now Slovenia. (37)

41 Moreover, there is no residual successor State which could legitimately be confused with the old `Yugoslavia' or SFRY; one must equate `Yugoslavia' with its five successor States. In any event, the very name of `the Former Yugoslav Republic of Macedonia' is an indicator to those potentially ignorant of the exact history of the region of the fact that FYROM was previously a republic of SFRY.

42 Thirdly, and unsurprisingly in light of the above, there appears to be no evidence of any actual confusion or uncertainty; in contrast to the Van Es case, and the earlier cases of Gondrand and Commission v France and United Kingdom, (38) there has been no suggestion of any reversal of expectation or general confusion as to what the term meant. Although it is true that the requirement of legal certainty involves an objective test, the absence of any confusion or uncertainty is none the less significant. In this case, all parties concerned appear to have proceeded on the basis that levies continued to be due on products imported from all former Yugoslav Republics. No objection was raised by the applicants until well after the substantial duties had been paid. Indeed, it appears that the claim was prompted only by the changes in terminology introduced in the Amended Decision.

43 To my mind, all the above factors demonstrate that the definitive duty decision was sufficiently clear and precise to enable the applicants unequivocally to ascertain their obligation to pay anti-dumping duties on the products they imported from FYROM during the period at issue.

Conclusion

44 I am accordingly of the opinion that the question referred by the Rechtbank van Eerste Aanleg, Antwerp, should be answered as follows:

The anti-dumping duties which, in accordance with Commission Decision 2131/88/ECSC, were to be levied on imports of specified steel products `originating in Yugoslavia' are applicable to the same steel products originating in the Former Yugoslav Republic of Macedonia in the period between 1 May 1992 and 31 July 1992.

(1) - Commission Decision 2131/88/ECSC of 18 July 1988 imposing a definitive anti-dumping duty on imports of certain sheets and plates, of iron or steel, originating in Yugoslavia and definitively collecting the provisional anti-dumping duty imposed on those imports, OJ 1988 L 188, p. 14.

(2) - Commission Recommendation 77/329/ECSC of 15 April 1977 on protection against dumping or the granting of bounties or subsidies by countries which are not members of the European Coal and Steel Community, OJ 1977 L 114, p. 6.

(3) - Commission Decision 2177/84/ECSC of 27 July 1984 on protection against dumped or subsidized imports from countries not members of the European Coal and Steel Community, OJ 1984 L 201, p. 17. That decision was repealed and replaced with effect from 5 August 1988 by Commission Decision 2424/88/ECSC of 29 July 1988 on protection against dumped or subsidized imports from countries not members of the European Coal and Steel Community, OJ 1988 L 209, p. 18, the relevant provisions of which are substantially the same as the equivalent provisions of the Basic Decision cited in this Opinion. That decision was in turn replaced with effect from 2 December 1996 by Commission Decision 2277/96/ECSC of 28 November 1996 on protection against dumped imports from countries not members of the European Coal and Steel Community, OJ 1996 L 308, p. 11.

(4) - Eighth recital in the preamble to Decision 2177/84, cited in note 3.

(5) - Article 9.

(6) - Article 10.

(7) - Article 11.

(8) - Article 12.

(9) - OJ 1986 C 38, p. 3.

(10) - Commission Decision 2767/86/ECSC of 5 September 1986 imposing a provisional anti-dumping duty on imports of certain sheets and plates, of iron or steel, originating in Yugoslavia, OJ 1986 L 254, p. 18.

(11) - Article 1(1) and 1(2).

(12) - Recital 14.

(13) - Commission Decision 2131/88/ECSC of 23 December 1986 accepting an undertaking given in connection with the anti-dumping investigation concerning imports of certain sheets and plates, of iron or steel, originating in Yugoslavia and terminating the investigation, OJ 1986 L 371, p. 84.

(14) - Commission Decision 229/88/ECSC of 25 January 1988 imposing a provisional anti-dumping duty on imports of certain sheets and plates, of iron or steel, originating in Yugoslavia, OJ 1988 L 23, p. 13. Decision 229/88 was amended by Commission Decision 980/88/ECSC of 13 April 1988, OJ 1988 L 98, p. 33, to take account of the changed description and classification of the products concerned resulting from the new combined nomenclature of the Common Customs Tariff, and by Commission Decision 1321/88/ECSC of 11 May 1988, OJ 1988 L 123, p. 20, extending the provisional duties imposed.

(15) - Cited in note 1.

(16) - Article 3.

(17) - Article 15(1) of the Basic Decision.

(18) - See Article 3.

(19) - Commission Decision 2297/92/ECSC of 31 July 1992 amending Decision 2131/88/ECSC, accepting undertakings offered in connection with imports of certain sheets and plates, of iron or steel, originating in the Republic of Slovenia and the Yugoslav republics of Macedonia, Montenegro and Serbia, and terminating the anti-dumping proceeding with regard to the Republic of Croatia and the Republic of Bosnia-Herzegovina, OJ 1992 L 221, p. 36.

(20) - Article 1(1) of the Amended Decision. The products in question were not produced and exported to the Community by the Republic of Croatia or the Republic of Bosnia Herzegovina. The Commission therefore considered that the proceeding concerning those countries could be terminated without protective measures: see paragraph 34 and Article 2 of Decision 2297/92.

(21) - Article 1(2).

(22) - Article 1(3).

(23) - See the Opinions of the Yugoslavia Arbitration Commission (the Badinter Commission) on questions arising from the dissolution of Yugoslavia, published in 31 International Legal Materials 1488 (1992), especially Opinion 8, p. 1521, at its consideration 4, p. 1523. For further details of the political developments following FYROM's declaration of independence, see my Opinion in Case C-120/94 Commission v Greece [1996] ECR I-1513, in particular paragraphs 2 to 17.

(24) - See Case C-84/95 Bosphorus v Minister for Transport, Energy and Communications, Ireland, and the Attorney General [1996] ECR I-3953, paragraph 11 of the judgment; Case C-83/94 Leifer and Others [1995] ECR I-3231, paragraph 22.

(25) - Article 7(1)(b) of the Basic Decision.

(26) - Article 7(4)(a) and 7(4)(b).

(27) - Some of these issues have been touched upon by the Court of First Instance in Case T-164/94 Ferchimex v Council [1995] ECR II-2681, especially paragraph 155 of the judgment.

(28) - Case C-143/93 Van Es Douane Agenten v Inspecteur der Invoerrechten en Accijnzen [1996] ECR I-431, paragraph 27 of the judgment. See also Case 169/80 Administration des Douanes v Gondrand Frères [1981] ECR 1931 and Joined Cases 92/87 and 93/87 Commission v France and United Kingdom [1989] ECR 405.

(29) - Paragraph 29 of the judgment.

(30) - Cited in note 10.

(31) - Recital 14.

(32) - Article 1 of Decision 86/639, cited in note 13.

(33) - Cited in note 14.

(34) - Recital 8.

(35) - OJ 1988 C 22, p. 10.

(36) - See, for example, recitals 1, 4, 5, 9, 11, 16, 18, 19, 22 and 25.

(37) - See the references to Zelezarna in the same provisions as the references to Rudnici, cited in notes 31 to 36.

(38) - Both cited in note 28.