C-118/77

1. A natural or legal person is The argument as to the effectiveness individually concerned by a provision of this combination for the purpose of of a regulation where that provision, monitoring the observance of the although drafted in general terms, in undertaking and being able to fact constitutes a collective decision. penalize any infringement of it cannot 2. The fact that the implementation of a be accepted since the provisions of the provision contained in a regulation regulation and in particular those of necessitates implementing measures Article 14 (2) (d) provide that in such adopted by the national authorities a case the Commission must does not prevent such provision from recommence the examination of the being of direct concern to the natural facts in accordance with Article 10. or legal persons to whom it applies where such implementation is purely 4. The Council, having adopted a automatic. This is even more the case general regulation with a view to where implementation is effected in implementing one of the objectives of pursuance not of intermediate Article 113 of the Treaty, cannot national rules but of Community rules derogate from the rules thus laid alone. down in applying those rules to 3. It follows from Article 14 of Regu­ specific cases without interfering with lation No 459/68 of the Council that the legislative system of the the acceptance by the Commission of Community and destroying the an undertaking from the exporter or equality before the law of those to exporters to revise their prices entails whom that law applies. the termination of the anti-dumping procedure. It is accordingly unlawful 5. It follows from the wording of Article for an anti-dumping procedure to be 17 of Regulation No 459/68 that a terminated on the one hand by such decision to collect the amounts an acceptance and on the other hand secured by way of provisional duty by a decision adopted by the Council may be adopted only at the same time under Article 17 of the same regu­ as the imposition of a definitive anti­ lation involving the definitive dumping duty. collection of the amount which, in pursuance of Article 15 of the regu­ It follows in particular that the lation, has been determined by the Commission may propose a decision Commission by way of provisional to collect the amounts secured only if anti-dumping duty and security for it proposes "Community action", in which has been provided by the other words, the introduction of a exponer or exporters concerned. definitive anti-dumping duty.

APPLICATION for the annulment of Council Regulation (EEC) No 1778/77 of 26 July 1977 concerning the. application of the anti-dumping duty on ball bearings and tapered roller bearings, originating in Japan (Official Journal 1977, L 196, p. 1),

THE COURT

composed of: H. Kutscher, President, J. Menens de Wilmars and Lord Mackenzie Stuart (Presidents of Chambers), A. M. Donner, P. Pescatore, M. Sørensen, A. O'Keeffe, G. Bosco and A. Touffait, Judges,

Advocate General: J.-P. Warner Registrar: A. Van Houtte

gives the following

JUDGMENT OF 29. 3. 1979 — CASE 118/77

I — Facts and procedure The normal procedure begins with the lodging of a complaint by a natural or (a) The framework of the legislation legal person or an association submitted either to a Member State or to the Regulation (EEC) No 459/68 of the Commission (Articles 6 A and 7). Council of 5 April 1968 on protection Member State may also alert the against dumping or the granting of Commission (Article 8). If the complaint bounties or subsidies by countries which seems to be serious the Commission, in are not members of the European co-operation with the Member States, Economic Community (Official Journal, commences an examination of the matter English Special Edition 1968 (I), p. 80), which covers both dumping and injury amended by Regulation (EEC) No (Article 10 (1)). The other provisions of 2011/73 of the Council of 24 July 1973 Article 10 and those of Article 11 (Official Journal 1973, L 206, p. 3) lays down the detailed rules and the regulate that examination. Article 10 (4) provides that: "The Commission shall procedure for the arrangement of anti­ provide opportunities for the dumping measures. These measures come complainant and the importers and entirely within the jurisdiction of the exporters known to be concerned … to EEC by virtue of the transfer of powers see all information that is relevant to the carried out by the Member States under defence of their interests and not Article 113 of the Treaty. The EEC confidential within the meaning of system is in conformity with the General Article 11 and that is used by the Agreement on and Trade Anti­ Commission in the anti-dumping dumping Code (Nations Treaty investigation". Series, Volume 65 840 p. 321 et seq. and Official 1968, L 305, Articles 12 and 13 provide for a p. 12). advisory committee to be set consisting representatives In accordance with provisions of the Member with a represe of General Agreement on Tariffs and the Commisas Chairma nsul­ Trade, Article 2 of the regulation tations cover particular th ence specifies that an anti-dumpting duty may and margin dumping, the ence be applied to a dumped product whose and extent of injury and the sures introduction into Community commerce appropriate to remedy the of causes, or threatens to cause, material dumping. injury to an established Community If it becomes apparent from consultation, industry or materially retards the unanimously, that protective measures setting-up of such an industry. Article 3 defines the concept of dumping, providing that the "price of the product when exported to the Community is less than the comparable price … in the exporting country of origin" and explains this definition. Article 4 limits the concept of injury.

are unnecessary the proceedings stand but importers must provide security to terminated. Otherwise the Commission that amount, "collection of which shall submits to the Council forthwith a report be determined by the subsequent decision "on the results of the consultation" of the Council under Article 17". together with a proposal that the Article 17 concerns the lot of the prov­ proceeding be terminated. If the Council isional duty and provides as follows: "acting by a qualified majority, approves the proposal ... the proceeding shall "1. Where the facts as finally established stand terminated. It shall likewise stand show that there is dumping and terminated if within one month the injury, and the interests of the Council has taken no decision or made Community call for Community intervention, the Commission shall, no request by a qualified majority to the Commission asking it to resume its exami­ after hearing the opinions expressed within the Committee-, submit a nation of the matter" (Article 14 (1)). proposal to the Council. Such Article 14 (2) (a) provides as follows: proposal shall also cover the matters "The provisions of the foregoing set out in paragraph 2. paragraph shall also apply where, during 2. (a) The Council shall act by a examination of the matter, the exporters qualified majority. Where Article give a voluntary undertaking to revise 15 (1) has been applied, the their prices so that the margin of Council shall decide, subject to dumping is eliminated or to cease to the provisions of Article 15 (2), export the product in question to the what proportion of the amounts Community, provided that the secured by way of provisional Commission, after hearing the opinions duty is to be definitively expressed within the committee, collected. considers this acceptable". (b) The definitive collection of such Regulation No 2011/73 of the Council amount shall not be decided (Official Journal 1973, L 206, p. 3) adds upon unless the facts as finally to this the following provisions: established show that there is material injury (and not merely "(d) Where the Commission finds that threat of material injury or of the undertaking of exporters is being material retardation of the evaded or no longer observed or has establishment of a Community been withdrawn and that, as a result, industry) or that such injury protective measures might be necessary, would have been caused if prov­ it shall forthwith so inform the Member isional action had not been States and shall recommence the exami­ taken". nation of the facts in accordance with Article 10". Anti-dumping duties are imposed by The representatives of the exporting regulation (Article 19 (1)). Article 20 (1) country and the directly interested parties are informed of the termination of the proceeding which must, with certain exceptions, be published in the Official Journal. Under Article 15 of Regulation (EEC) No 459/68, the Commission may take "provisional action" consisting in fixing a (percentage of) anti-dumping duty in respect of which payment is not claimed

of Regulation No 459/68 provides, in 10 % for the products manufactured and accordance with Article 8 (b) of the exported by Nachi Fujikoshi Cor­ General Agreement on Tariffs and Trade poration and Koyo Seiko Company Anti-dumping Code, that the products Limited. referred to are described indicating the In the meantime the Commission carried name of the supplier. Article 20 (2) out an investigation at the European provides that the only exception to this (French, British and German) sub­ rule is where it is impracticable to name sidiaries of the Japanese companies all the suppliers. during the months from February to Importers who wish to show that April 1977. Because those subsidiaries products, although subject to anti­ were associated with the producer dumping duties, were not dumped, have companies, it based its calculations of the the means of administrative appeal export prices on the "price at which the (Article 19 (4)). imported product is first resold to an independent buyer" (Article 3 (3)). (b) Facts Because of the great variety of categories By document of 15 October 1976, the of products on the market it adopted for each undertaking a sample of rep­ Committee of the European Bearing Manufacturers' Associations, an resentative products and determined the average price. Finally, the prices association at that time without legal determined were reduced by fixed percen­ personality whose members were the three German, British and French trade tages so as to reconstruct the export price to be adopted for the purposes of organizations submitted a complaint to comparison with domestic prices. the Commission concerning dumping by Japanese roller bearing manufacturers. From 18 to 28 April 1977 an After consultation with the Member investigation was held in Japan at the States, the Commission decided on four major producers by a group of experts from the Commission with the 9 November 1976 to carry out an official collaboration of a chartered accountant, anti-dumping investigation. It informed an expert from the United Kingdom and the Japanese mission of this and sent an expert from the Federal Republic of questionnaires to all the known Germany. importers and exporters and published the required notice in the Official From the end of May until the end of Journal of 13 November 1976, C 268, June 1977 meetings were held between p. 2. the Commission and the Japanese roller bearing producers on the possibility of When the replies to the questionnaires an undertaking as to prices. After four had been received, the European and weeks of discussion the four major Japanese manufacturers met on 18 and Japanese producers signed on 20 June 19 January 1977 so that each side could 1977 undertakings that they would put its views and arguments to the other. increase prices. The Commission imposed a provisional anti-dumping duty of 20 % on ball bearings and tapered roller bearings and parts thereof originating in Japan by Regulation (EEC) No 261/77 of 4 February 1977 (Official Journal 1977, L 34, p. 60), which was extended by Council Regulation (EEC) No 944/77 (Official Journal 1977, L 112, p. 1). However the percentage was fixed at

"The amounts secured by way of prov­ Having heard the report of the Judge- isional duty under the provisions of Regu­ Rapporteur and the views of the lation (EEC) No 261/77 extended by Advocate General, the Court decided by order of 12 April 1978 to reserve its Regulation (EEC) No 944/77, in respect decision on the objection of of products manufactured and exported inadmissibility for the final judgment. by the following producers, shall be definitively collected to the extent that Having heard the report of the Judge- Rapporteur and the views of the they do not exceed the rate of duty fixed Advocate General, the Court decided to in this regulation: Koyo Seiko Company open the oral procedure without any Limited; Nachi Fujikoshi Corporation; preparatory inquiry. NTN Toyo Bearing Company Limited; However, the Court requested the Nippon Seiko K.K". applicant and the Commission of the Regulation (EEC) No 1778/77 was European Communities to answer published in the Official Journal on certain questions under Article 21 of the Protocol on the Statute of the Court of 3 August 1977 (L 196, p. 1). Justice of the EEC. On the same date the Commission accepted the undertakings given by the Japanese producers on 20 June 1977.

JUDGMENT OF 29. 3. 1979 — CASE 118/77

II — Conclusions of the parties subject-matter of the collection of the anti-dumping duties imposed. The applicant claims that the Court Moreover, the applicant was implicated should: in the anti-dumping procedure by the — Annul "Regulation" No 1778/77 of Commission. Besides, the contested regu­ 26 July 1977 with all the legal lation was notified to the applicant by consequences. the Commission.

I.S.O. v COUNCIL

It is applied not to 267 importers but only to a few, that is, the subsidiaries of the four producers, on the one hand, and the only independent importer, in other words the applicant, on the other. It is individually concerned because it was involved in the investigation. In fact, the contested regulation belongs to a special category of measures which may only be adopted on the basis of the results of such an investigation. Moreover Article 3 of Regulation No 1778/77 in particular is of direct concern to the applicant.

JUDGMENT OF 29. 3. 1979 — CASE 118/77

The decision to implementing measures before the adopt or not such a measure involves a Community Court. large measure of discretion. The intro The intervener contests the "indivisibility duction of a suspensory duty is merely a rule for the application of the anti theory" referred to by the applicant. Article 3 of the contested regulation is dumping duty which is not prohibited for the Council. not of direct concern to the applicant as long as it has not established that it itself In its reply the applicant specifies that paid the provisional duty the collection the attitude of the Community auth of which was ordered. Nor is it of direct orities constitutes in the present case a and individual concern to the applicant violation of the principle of legal since the regulation applies to all certainty. It follows from the basic regu importers of the products in question. It lation and in particular from Article 17 is impossible to maintain that the thereof that there is a necessary link, as individual nature of the measure or its regards anti-dumping duties, between the nature as a regulation depends upon the introduction of definitive duty and the number of persons to whom that definitive collection of the provisional measure may be of concern. duty. The definitive collection of the provisional duty is justified only where The substance of the case there is a persistent breach, since the fact that agreements have been concluded As regards the substance of the case the should logically result in the applicant puts forward against the abandonment of such collection. contested measure the submissions of infringement of the Treaty or of all rules The Community authorities are faced of law relating to its application and with the following dilemma: in view of misuse of powers. the undertaking they could not in all fairness introduce a definitive duty; nor (1) Infringement of the Treaty in addition could they order, without the introduction of definitive duty, the Both general legal principles and the definitive collection of the provisional basic regulation, Regulation No 459/68,

I.S.O. v COUNCIL

cording to which the greater includes the the Commission by the basic regulation lesser cannot be relied upon in these and is directly contrary to the provision circumstances. laid down in Article 14 (2) (d) of Regu­ In the rejoinder, the Council observes lation No 459/68. According to the that the principle of legal certainty has procedure laid down in the basic regu­ not been violated in the present case and lation, any infringement of the under­ states that this principle refers to taking can be found and penalized only diffferent situations. The complaint that after the Commission has recommenced its examination of the facts. Articles 1 and 2 a stratagem has been used so as to enable the provisional duty to be definitively of the contested regulation do not collected amounts to maintaining that comply with the provision quoted above. the importation of products by means of In reply the Council alleges first that that dumping should have no results if, complaint is evidently based on an towards the end of the investigation and immoral and unlawful cause. Its objective just before the introduction of a is in fact to obstruct the re-introduction definitive duty, the exporter gave an of the anti-dumping duty if the Japanese undertaking to eliminate the margin of producers violate the undertaking. dumping. According to the Council and the Article 14 (2) (a) of the basic regulation, intervener the provision of Article 14 whilst enabling the Commission to relied upon is inapplicable since that terminate the procedure, also enables it provision refers only to the case of a to submit a proposal to the Council if it procedure which has been terminated. In results from its findings that the interests the present case, the Commission has not of the Community necessitate Com­ however terminated the procedure munity action. precisely because the undertakings given The intervener states once more that the did not have retroactive effect and, moreover, did not immediately abolish anti-dumping duty is not in the nature of dumping. a penalty. It is true that the Council could have

deviate from the "procedure provided Besides, according to the Council and for by the general law". The fact that intervener, the argument is unjustified that procedure is cumbersome is not a since cases such as those referred to by valid reason for disregarding it. the applicant can always arise in the As the delegation of power granted to application of definitive duty. In those the Commission involves the transfor­ cases those concerned have the legal mation of a conditional right into an remedy created by Article 19 (4) of Regu­ absolute right, it exceeds the limits of the lation No 459/68. concept of implementation and, The applicant's reply states that there is a therefore, of Article 155 of the Treaty. right which exists at present. Moreover, It contests that the rule of nemo auditur the applicant is entitled to show the mam turpitudinem allegans, which illegality of the system adopted by moreover is not accepted by the case-law establishing its strange results. of the Court, is applicable to its In the light of the other arguments put complaint. forward by the Council, which are In its rejoinder, the Council maintains contradictory, the question arises that the complaint is inadmissible by whether it would not have been more virtue of the rule of nemo auditur suam logical to await a possible violation of turpitudinem allegans. It also maintains the undertakings to introduce the that the provision laid down in Article 14 definitive duty on the basis of the margin (2) (d) of the basic regulation, Regu­ of dumping found at that date and with lation No 459/68, was not applicable in knowledge of that margin. the present case, adding that it was The rejoinder of the Council is based on difficult for the Council, in the state of French case-law, considering the the undertakings, not to suspend the complaint as an invalid argument; it application of the anti-dumping duty (at maintains that the Council's arguments least for the period after the increases do not contain any contradiction. had been made). According to the intervener, experience confirms that the hypotheses put forward (c) Infringement ofArticle 19 (3) of the by the applicant are of a purely basic regulation theoretical nature. This provision, which provides that the amount of an anti-dumping duty shall (d) Infringement ofArticle 19 (2) (a) of not exceed the margin of dumping the basic regulation established, is infringed by the system Contrary to that provision if the introduced by Articles 1 and 2 of the suspension were lifted as provided for in contested regulation. In fact this system Article 2 of the contested regulation this might lead to the application of an anti­ would have retroactive effect because, dumping duty of 15 % to penalize according to the general principles of failures to observe undertakings resulting civil law, a completed condition is retro­ in margins of dumping lower than that active. percentage.

The Council and intervener reply that the The Council does not understand in complaint wrongly assimilates the effects what the misuse of powers alleged has in private law of the suspensory consisted. The Commission's practice in condition affecting a duty and the previous cases cannot bind the Council. suspension by a public authority of the Moreover, the line of conduct adopted effects of one of its decisions. Since by the Commission can in no way bind it Article 1 of the contested regulation and prevent it from changing its policy. ordered the suspension of the duty the fact that the suspension is terminated The applicant maintains that the basic implies only that the duty is collected on regulation links the definitive collection the goods imponed subsequent to the of the provisional duty to the intro­ date on which the suspension of the duty duction of the definitive duty; this intro­ was terminated. duction is justified only if the infringement continues. As this was not (2) Misuse of powers so in the present case there has been a The contested regulation, Regulation No misuse of powers. 1778/77, constitutes a misuse of powers The Council observes that, in the reply, because it lays down a genuine the argument as put forward is quite suspended penalty, an offence which is different from that which appeared in aggravated by the existence of the under­ the initial application. The new argument takings. thus raised is a mere allegation. On the All the procedures initiated previously by date on which the Council's decision was the Commission under the basic regu­ adopted the Japanese undertakings had, lation were closed (except one) and did it is true, undertaken to raise their prices not give rise to a decision by the but only with regard to the future and Council, no doubt because as a result of dumping therefore still existed at the the undertaking given by those date on which Regulation No 1778/77 concerned to revise their prices the was adopted. The duty was suspended Community authorities did not retain the therefore by a measure of goodwill. securities (provisional duty). The only exception (Council Regulation No 316/77 of 14 February 1977, Official IV — Oral procedure Journal, L 45, p. 4) led to the intro­ duction of a definitive anti-dumping duty in the absence of an undertaking to The parties presented oral argument at revise prices. the hearing on 10 and 11 January 1979. This exception confirms, a contrarío, that The Advocate General delivered his in the present case the misuse of powers opinion at the hearing on 14 February is evident. 1979.

5 During the procedure initiated by the Commission the four major Japanese producers gave voluntary undertakings signed on 20 June 1977 under Article 14 (2) of Regulation No 459/68 to revise their prices so that the margin of dumping might be eliminated; those undertakings resulted in an increase of 20 % in their export prices.

I.S.O. v COUNCIL

6 Council Regulation (EEC) No 1778/77 of 26 July 1977 then introduced, under Article 17 of Regulation No 459/68, a definitive anti-dumping duty of 15 % on the products in question, suspended the application of that duty and provided, as regards the products exported by the four major Japanese producers, for the definitive collection of the amounts secured by way of provisional anti-dumping duty laid down in Regulations Nos 261/77 and 944/77.

7 It is not in dispute that I.S.O. is the exclusive importer in France of the bearings in question of the brand name of Nachi Fujikoshi (hereinafter referred to as "Nachi"), one of the four major Japanese producers".

The admissibility of the application

8 The Council has raised an objection of inadmissibility claiming that the contested measure is a regulation and that the applicants are therefore not entitled to request annulment of it under the second paragraph of Article 173 of the Treaty.

14 The contested measure therefore constitutes a decision which affects only the major producers and their subsidiaries and exclusive importers and must therefore be considered to be a decision concerning them adopted in the form of a regulation.

15 It should be stated that Nachi and I.S.O. are sufficiently closely associated for the Commission to have considered, during its examination of the matter, that it was necessary to apply to them the special provisions concerning export prices laid down in Article 3 (3) of the basic regulation, Regulation No 459/68.

16 In these circumstances it is necessary to consider that the measures which refer particularly to Nachi's products and are of direct and individual concern to Nachi are of direct and individual concern to I.S.O.

17 Regulation No 1778/77 contains essentially three provisions:

— Article 1 imposes a definitive anti-dumping duty of 15 °/o on the products in question originating in Japan and suspends the application of that duty without prejudice to Article 2;

— Article 2 regulates the monitoring of the undertakings given by the major Japanese producers and empowers the Commission to terminate the suspension of the application of the duty if it finds that these under­ takings are being evaded, not being observed or have been withdrawn;

22 Thus, although drafted in general terms, Article 1 in fact concerns only the situation of the major Japanese producers, including Nachi, by reason of the undertakings which they have given to revise their prices.

23 Hence the applicants' application against Articles 1 and 2 is also admissible.

24 As regards the admissibility of the application in so far as it is directed against Article 3, that article constitutes a collective decision.

JUDGMENT OF 29. 3. 1979 — CASE 118/77

25 Although the collection of the amounts secured by way of provisional anti­ dumping duty is per se of direct concern to any importer who has imported the products in question subject to such duty, the special feature of Article 3 which sets it apart is that it does not concern all importers but only those who have imported the products manufactured by the four major Japanese producers named in that article.

26 The allegation of the Council and the intervener that only implementing measures adopted by the national authorities are of direct concern to the importers and that these importers should therefore, where appropriate, bring the matter before the national courts having jurisdiction disregards the fact that such implementation is purely automatic and, moreover, in pursuance not of intermediate national rules but of Community rules alone.

I.S.O. v COUNCIL

acknowledged by implication by its undertaking that there was a margin of dumping of 20%, it is unsatisfactory to have to recommence the investigation for failure to observe the undertaking and more appropriate in such a case to terminate the suspension of the definitive duty imposed on the basis of well-established facts.

32 Article 14 (1) of the basic regulation, Regulation (EEC) No 459/68, as amended by Regulation (EEC) No 2011/73 of the Council of 24 July 1973 (Official Journal 1973, L 206, p. 3) having provided that "If it becomes apparent ... that protective measures are unnecessary ... the proceedings shall stand terminated", Article 14 (2) provides as follows:

"(a) The provisions of the foregoing paragraph shall also apply where, during examination of the matter, the exporters give a voluntary under­ taking to revise their prices so that the margin of dumping is eliminated or to cease to export the product in question to the Community, provided that the Commission, after hearing the opinions expressed within the Committee, considers this acceptable.

(b) Where the Commission, acting in accordance with the provisions of the foregoing subparagraph, accepts the undertaking referred to therein, the investigation of injury shall nevertheless be completed if the exporters so desire or if, after hearing the opinions expressed within the Committee, the Commission so decides. If the Commission, after hearing the opinions expressed within the Committee, makes a determi­ nation of no injury, the undertaking given by the exporters shall auto­ matically lapse unless the exporters state that it is not so to lapse.

2. (a) The Council shall act by a qualified majority. Where Article 15 (1) has been applied, the Council shall decide, subject to the provisions of Article 15 (2), what proportion of the amounts secured by way of provisional duty is to be definitively collected.

(b) The definitive collection of such amount shall not be decided upon unless the facts as finally established show that there is material injury (and not merely threat of material injury or of material retar­ dation of the establishment of a Community industry) or that such injury would have been caused if provisional action had not been taken."

34 In the light of these provisions it is unlawful for one and the same anti­ dumping procedure to be terminated on the one hand by the Commission's accepting an undertaking from the exporter or exporters to revise their prices at the same time as, on the other, by the imposition on the part of the Council, at the proposal of the Commission, of a definitive anti-dumping duty.

35 It is impossible to accept the argument that in the present case the under­ taking was given only after examination of the matter since the examination of the matter ends only when the Commission submits its proposals to the Council, whilst it is not disputed in the present case that the undertakings were signed on 20 June 1977 before the meeting of the advisor)' committee provided for in Article 12 (2) of Regulation No 459/68 held on 21 June 1977.

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36 Those undertakings were referred to by the Commission in its proposal to the Council of 4 July 1977 and considered to be "acceptable".

43 This provision implies that the Commission may, if it considers that an appro­ priate situation has arisen, immediately introduce a provisional anti-dumping duty or take other necessary measures but requires nevertheless that those

JUDGMENT OF 29. 3. 1979 — CASE 118/77

measures should be adopted having regard to the situation caused by the failure to observe the undertaking.

44 In any case Regulation No 459/68 aims to ensure that the measures to be taken are adopted in compliance with the formalities and guarantees laid down in Article 10.

45 The argument that Regulation No 1778/77 constitutes a measure sui generis based directly on Article 113 of the Treaty and not subject to the provisions of Regulation No 459/68 disregards the fact that the whole proceeding in question was carried out within the context of the provisions laid down by that regulation.

46 The Council, having adopted a general regulation with a view to implementing one of the objectives laid down in Article 113 of the Treaty, cannot derogate from the rules thus laid down in applying those rules to specific cases without interfering with the legislative system of the Community and destroying the equality before the law of those to whom that law applies.

52 This interpretation is confirmed by Article 16 (2) which provides that the Commission must submit a proposal to the Council for Community action at least one month before expiry of the provisional anti-dumping duty.

53 It is also confirmed by the wording of Article 17 (2) (b).

54 In fact, under Article 19 (3) of the basic regulation a provisional anti­ dumping duty can be imposed only in so far as a margin of dumping and material injury have been found.

55 This would seem to have been the intention of the Council when it provided in Article 3 of the contested regulation that the amounts secured were to be "definitively collected to the extent that they do not exceed the rate of duty fixed in this regulation", in other words the rate of the definitive anti­ dumping duty whose application had been suspended.

56 The application is therefore also well founded in this respect.

57 Since Article 4 of Regulation No 1778/77 regulates only the entry into force of the preceding provisions there is nothing to prevent this regulation's being annulled in its entirety.

62 The intervener must be ordered to pay the costs incurred by the applicant on account of its intervention.

On those grounds,

THE COURT

hereby:

1. Annuls Council Regulation (EEC) No 1778/77 of 26 July 1977 concerning the application of the anti-dumping duty on ball bearings and tapered roller bearings, originating in Japan;

2. Orders the Council to pay the costs, except for the costs caused by the intervention;

Registrar President

OPINION OF MR ADVOCATE GENERAL WARNER (see Case 113/77, p. 1212)