120/83 R
Grade B
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Not the law itself: Judgment
Address https://gelex.eu/eli/EU/judgment/61983O0120@1982-07-19/en
Contents
In Case 120/83 R V/O Raznoimport, a trading body having its registered office in Moscow (USSR), Smolenskaja-Sennaja, 32, represented by Francis Jacobs, barrister of the Middle Temple and D. F. Hall, solicitor with the firm of Linklaters and Paines in London, with an address for service in Luxembourg at the Chambers of Elvinger and Hoss, 84 Grand'Rue, applicant,v Commission of the European Communities, 200 Rue de la Loi, B-1049 Brussels, represented by P. J. Kuyper, a member of its Legal Department, with an address for service at the office of Oreste Montako, a member of its Legal Department, Jean Monnet Building, Kirchberg, defendant, APPLICATION to suspend the operation of Commission Regulation (EEC) No 1613/83 of 15 June 1983 imposing a provisional antidumping duty on imports of unwrought nickel, not alloyed, in the form of cathodes produced by electrolysis, either uncut or cut into squares, originating in the Soviet Union (Official Journal, L 159, p. 43). The President of the Court of Justice of the European Communities makes the following
ORDER
In December 1982, the Commission received a complaint lodged on behalf of United Kingdom, French and Greek producers whose collective output constitutes the total Community production of unwrought nickel, not alloyed, in the form of cathodes produced by electrolysis, either uncut or cut into squares (hereinafter referred to as nickel) That complaint contains evidence that dumping is being practised in the case of nickel from the Soviet Union as a result of which serious injury is being caused to the producers in question. Following receipt of that complaint, the Commission initiated, by a notice published on 5 February 1983 (Official Journal, C 31, p. 3), an antidumping proceeding pursuant to Article 7 of Council Regulation (EEC) No 3017/79 of 20 December 1979 on protection against dumped or subsidized imports from countries not members of the European Economic Community (Official Journal, L 339, p. 1), as amended by Council Regulation (EEC) No 1580/82 of 14 June 1982 (Official Journal, L 178, p. 9). On 7 February 1983, the French Government requested, pursuant to Article 11 (3) of Regulation No 3017/79, immediate intervention by the Commission in the form of the imposition of provisional antidumping duties. By Decision 83/64/EEC of 14 February 1983 (Official Journal, L 43, p. 19), the Commission refused that request but continued the investigation commenced by its Notice of 5 February 1983. In the light of the results of that investigation the Commission considered that the preliminary examination which it had conducted showed that dumping was being practised, that there was sufficient evidence that injury was being caused thereby and that the interests of the Community called for action to be taken to prevent injury, from, being caused during the proceeding. Accordingly, on the basis of Article 11 of Regulation (EEC) No 3017/79, the Commission adopted Regulation (EEC) No 1613/83 of 15 June 1983 imposing a provisional antidumping duty on imports of unwrought nickel not alloyed, in the form of cathodes produced by electrolysis, either uncut or cut into squares, classified under subheading ex 75.01 of the Common Customs Tariff, corresponding to Nimexe Code ex 75.01-21, originating in the Soviet Union. Regulation (EEC) No 1613/83 provides that the amount of that provisional duty is to be equal to 7% of the net price, free-at-Community-frontier, before duty and that the release for free circulation of the products concerned is to be subject to the provision of a security equivalent to the amount of the provisional duty. For the purpose of establishing the existence of dumping, Regulation (EEC) No 1613/83 determined, in accordance with Article 2 B 5 of Regulation (EEC) No 3017/79, the normal value of nickel by reference to the constructed value of the product in question in Canada. The Commission has estimated the weighted average dumping margin at 40%. In assessing. the causes of the injury established, it considered that the prices of Soviet exports had undercut the prices of other imports into the Community by an average margin of 7% in 1982 and thus concluded that the injury caused by dumped imports from the Soviet Union alone had to be regarded as material. On 29 June 1983 the applicant brought an action under Articles 173, 178 and 215 of the EEC Treaty for a declaration that'Regulation (EEC) No 1613783 is void and for damages in respect of the losses which it claims to suffer, the amount of such damages to be determined subsequently.
sec_1
sec_1 I —
Gutline of the facts
By application lodged at the Court Registry on 29 June 1983, the applicant seeks, on the basis of Articles 185 and 186 of the EEC Treaty, an order suspending the operation of Commission Regulation (EEC) No 1613/83 and, secondarily, the adoption of any other measures as may be necessary to preserve the applicant's position pending the determination of the main application and an order for the payment by the Commission of the costs of the interim proceedings. In support of its request, the applicant refers to the arguments which it developed in the main proceedings concerning the admissibility of its application and the illegality of the contested Regulation. In the first place, the applicant argues that it is inappropriate to apply the Community antidumping rules in circumstances such as those of this case in which the selling prices of nickel are necessarily determined by world market prices as fixed on the London Metal Exchange. Accordingly, the requirements of Article 2 of Regulation (EEC) No 3017/79, which must be fulfilled if a product is to be regarded as dumped, have not been satisfied. Secondly, the applicant maintains that there can be no injury within the meaning of Article 4 of the same Regulation since there is no Community industry to be protected. It also contends that the decision to impose a provisional duty on imports from the Soviet Union alone is discriminatory and was adopted on the basis of a file which was deliberately left incomplete. Moreover, the applicant maintains that suspension of the operation of the contested Regulation is a matter of urgency in order to prevent immediate, serious and irreparable harm. Such harm would result from the refusal by buyers of nickel to obtain supplies from the applicant if the quantities bought could be imported into the Community only on condition that payment of an antidumping duty was guaranteed by the provision of a security, in view of the fact that nickel is in plentiful supply on the world market and that no customs duty is charged on imports of nickel into the Community. In its written submissions, lodged at the Court Registry on 8 July 1983, the defendant contends that the application for the adoption of interim measures should be dismissed and that the applicant should be ordered to pay the costs. In support of its contentions, the defendant refers in the first place to its doubts concerning the admissibility of an application by an exporter for a declaration that a decision imposing a provisional antidumping duty is void. It considers that, in the present case, the contested decision is a measure of general application which could apply to other Soviet exporters and which is consistent with a view of dumping which, according to the defendant, is still prevalent within the General Agreement on Tariffs and Trade. The defendant considers that the fact that nickel marketed by the applicant is sold at prices determined on the basis of those of the London Metal Exchange does not preclude the existence of dumping and the application to this case of Community antidumping rules applicable in trade with countries which do not have a market economy, and that those rules have been applied by it in a manner which is neither artificial nor discriminatory in relation to Soviet exports. The defendant adds that the interests of Community industry are sufficiently important to justify the adoption of the contested Regulation. In the light of those reasons, the defendant submits that the main application is not sufficiently well founded in law or in fact to justify the adoption of interim measures within the meaning of Article 83 (2) of the Rules of Procedure. The defendant contends, moreover, that the applicant can only rely on harm which it claims to be suffering itself and that it has failed to provide any evidence of the need for the adoption of interim measures in order to prevent serious and irreparable harm. It adds that the injury which suspension of the operation of the contested decision would cause to Community industry and to the general interest of the Community would be out of proportion to the harm which the immediate application of the contested decision would occasion to the private interests in a nonmember country which are represented by the applicant.
sec_2 II —
Written procedure
The parties were duly summoned and presented oral argument at the sitting on 15 July 1983 in the interim proceedings. At the applicant's request the President made an order, pursuant to Article 56 of the Rules of Procedure, that the case was to be heard in camera.
sec_3 III —
Oral procedure
Decision
sec_2
1 According to Article 185 of the EEC Treaty actions brought before the Court of Justice do not have suspensory effect. The Court of Justice may, however, if it considers that the circumstances so require, order that application of the contested decision be suspended and prescribe any other interim measure pursuant to Article 185 and 186 of the EEC Treaty.
2 According to established case-law, the adoption of such measures cannot be considered unless the factual and legal circumstances relied upon to obtain them establish a prima facie case for granting them. In addition there must be urgency in the sense that it is necessary for the measures to be issued and to take effect before the decision of the Court on the substance of the case in order to avoid serious and irreparable damage to the party seeking them. Finally, they must be provisional in the sense that they do not prejudge the decision on the substance of the case.
3 The decision which is contested in the main proceedings is itself an interim measure which was adopted unter the procedure established by Council Regulation (EEC) No 3017/79 of 20 December 1979 on protection against dumped or subsidized imports from countries not members of the European Economic Community (Official Journal, L 339 of 31. 12. 1979, p. 1). According to that Regulation, the procedure for fixing an antidumping duty is to be implemented in several stages, one of which includes the fixing of a provisional antidumping duty on completion of an investigation involving the interested parties.
4 The imposition of that provisional duty is itself carried out in two stages, in the manner provided for by Articles 11 and 12 of the abovementioned Regulation. Article 11 (1) provides that where preliminary examination shows that dumping or a subsidy exists and that there is sufficient evidence of injury caused thereby, the Commission, acting at the request of a Member State or on its own initiative, is to impose, if the interests of the Community call for intervention to prevent injury being caused during the course of the proceeding, a provisional antidumping or countervailing duty.
5 In such cases, entry of the products concerned for Community consumption is to be conditional upon the provision of security for the amount of the provisional duty.
6 Article 11 (5) provides that provisional duties are to have a maximum period of validity of four months which may, in certain circumstances, be extended for a further period of two months.
7 According to Article 12 (2) (a) and (b), the Council must, at the time at which it decides to impose a definitive duty, also decide, on a proposal from the Commission and irrespective of the decision which it adopts regarding the imposition of a definitive duty, what proportion, if any, of the provisional duty is to be definitively collected. The definitive collection of the provisional duty may not be decided upon, however, unless the facts as finally established show that there has been dumping or subsidization, and material injury or threat of material injury which would, in the absence of interim measures, have developed into material injury. In the circumstances in this case, that decision will have to be adopted before 17 October 1983 or, if the period is extended, before 17 December 1983.
8 It is in the light of the specific features of the procedure thus established that it is necessary to determine whether the conditions for the suspension of the operation of the contested decision are satisfied.
9 In that respect, the serious nature of the complaints formulated by the applicant cannot be disregarded. Leaving aside the problem of the admissibility of actions brought against decisions of that kind, which has not yet been wholly resolved in the case-law of the Court, serious doubt surrounds the question whether, in adopting a constructed value as a basis of reference when prices are apparently determined by market mechanisms, and in calculating that constructed value on the basis of production costs in a nonmember country which may itself be in the situation referred to in paragraph (4) of Article 2 B, the Commission applied the criteria set out in paragraph (5) in an appropriate and reasonable manner. In the light of the explanations provided during the proceedings for the adoption of interim measures, there are also doubts concerning the circumstances which led the Commission to fix the rate of the provisional antidumping duty at 7%.
10 Since the first condition which must be fulfilled for the grant of interim measures has thus undoubtedly been satisfied, it remains to assess the urgency of, and the need for, the suspension applied for in order to prevent serious and irreparable damage, as indicated above, from being caused to the applicant.
11 According to the applicant that damage consists in the risk that the patterns of trade established by it may be disrupted as a result of the obligation to provide security at the time of entry of the nickel for consumption on the Community market during the period of validity of the provisional duty.
12 It must be emphasized that, under the procedure established by Regulation (EEC) No 3017/79, the Council will shortly have to decide both whether to impose a definitive duty and whether to collect definitively the provisional duty. Although that does not in itself exclude the possibility of suspending the operation of the contested measure, the Court must, however, in proceedings for the adoption of interim measures, take account of the specific features of the procedure in question and of the powers which the Council will have to exercise within the prescribed period, after it has been given full information, in particular in the light of what has emerged during these proceedings for the adoption of interim measures.
13 In the meantime, the Commission is under an obligation not only to continue its investigation, in order to enable the Council to decide whether or not dumping is being practised, but also, in view of the specific features of this case, to monitor from day to day any changes in prices on the market of the product which is subject to the provisional duty in order to determine whether it is necessary to maintain that duty or the rate thereof. The Commission must be ordered to act in accordance with that obligation.
14 For the rest, it appears from the information provided during the proceedings for the adoption of interim measures that, in view of the characteristic features of the market of the product in question, the risk of any lasting disruption of the patterns of trade as a result of the maintenance of the provisional duty is small. It has not been established that the applicant will be unable to avoid such damage by adopting measures consistent with the obligation to cooperate which is incumbent upon it in order to mitigate the alleged damage.
15 It follows from those considerations that the obstacle which prevents the applicant from fulfilling its sales potential is in substance limited to the burden constituted by the provision of security. The cost of that security may, according to the information provided by the parties, be estimated at 1% to 2% of the amount of the provisional duty, payment of which is to be guaranteed. Even if the applicant, which is the sole exporter of Soviet production, were to undertake provisionally to bear the costs of that security in order to be able to market its products during the period in which the provisional duty is in force, that disadvantage cannot constitute serious and irreparable damage such as would permit the suspension of a decision adopted in the context of a complex economic situation. Any damage which may occur can, if appropriate, be made good in the context of the action for compensation brought by the applicant.
16 Accordingly, for-the rest, the application must be dismissed, and, at the present stage of the proceedings, it is appropriate to reserve the costs.
On those grounds, The President, by way of interim decision, hereby orders as follows :
1. The Commission is under an obligation to monitor from day to day any changes in prices on the market of the product which is subject to the provisional duty in order to determine whether it is necessary to maintain that duty or the rate thereof;
2. For the rest, the application is dismissed;
3. The costs are reserved.
Luxembourg, 19 July 1983. J. A. Pompe Deputy Registrar J. Menens de Wilmars President