C-119/77
ECLI:EU:C:1977:166
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ORDER OF THE PRESIDENT OF THE COURT 20 OCTOBER 1977 1
Nippon Seiko K.K. and Others v Council and Commission of the European Communities
Case 119/77 R
In Case 119/77 R
(1) Nippon Seiko K.K, Tokyo,
(2) NSK BEARINGS Europe LTD , London,
(3) NSK KUGELLAGER GmbH , Ratingen,
(4) NSK France S.A., Clichy,
represented by Jeremy Lever, Queen's Counsel, of Gray's Inn, David Vaughan, Barrister, of the Inner Temple, London, and Messrs Coward Chance, Solicitors, London, with an address for service in Luxembourg at the Chambers of J. C. Wolter, 2, Rue Goethe,
applicants
v
Council of the European Communities , represented by its Legal Adviser, Peter
Brückner, with an address for service in Luxembourg at the office of Mr Van den Houten, European Investment Bank, Place de Metz,
and
Commission of the European Communities , represented by its Legal Adviser, Robert Casper Fischer, with an address for service in Luxembourg at the office of Mario Cervino, Commission of the European Communities, Jean Monnet Building,
defendants,
The President of the Court of Justice op the European Communities
makes the following
1 — Language of the Case: English.
order of 20. 10. 1977 — case 119/77 R
ORDER
Facts
1. Article 15 (1) (a) of Regulation (EEC) provisional duty was extended for a
No 459/68 of the Council of 5 April period not exceeding three months. The 1968 on protection against dumping or regulation was to apply 'until the entry the granting of bounties or subsidies by into force of a Council act adopting countries which are not members of the definitive measures or, at the latest, until European Economic Community (OJ, the expiry of a period of three months
English Special Edition 1968 (I), p. 80) beginning on 5 May 1977'. provides as follows: The definitive measures in question were
Where preliminary examination of the adopted by Council Regulation (EEC) No matter shows dumping and that there is 1778/77, of 26 July 1977 (OJ L 196, there is of injury and sufficient evidence 1977, p. 1), which entered into force on 4 the interests of the Community call for August 1977. This regulation:
immediate intervention, the Commission — Imposed a definitive anti-dumping ... shall: duty of 15 % on ball bearings and —
.., fix an amount to be secured by tapered roller bearings originating in way of provisional anti-dumping Japan (Article 1 (1)); duty, collection of which shall be — Suspended, under given conditions, determined by the subsequent the application of this duty (Article 1 decision of the Council under Article (2)); 17; — Ordered that the amounts secured by way of provisional duty under the — that stipulate entry of such products provisions of Regulations Nos 261/77 for Community consumption shall be and 944/77, in respect of products
conditional upon the provision of manufactured and exported by —
security for the aforementioned among others — Nippon Seiko K.K. 1
amount. (hereinafter referred to as 'NSK ), 'shall be definitively collected to the Having regard in particular to the extent that they do not exceed the aforesaid article, the Commission of the rate of duty fixed in this regulation', European Communities, by Regulation that is, 15 % (Article 3). (EEC) No 261/77 of 4 February 1977 (OJ L 34. 1977. p . 60): 2. On 10 October 1977 NSK as well as — imposed a provisional anti-dumping its European subsidiaries NSK Bearings duty of 20 % on ball bearings, Europe Ltd, NSK Kugellager GmbH tapered roller bearings and parts of and NSK France S.A. (hereinafter those two types of bearings, collectively referred to as 'the sub
originating in Japan; sidiaries') lodged an application against — Ordered that the entry of those the Council and the Commission in products into free circulation should which:
be conditional upon the deposit of
for the amount of the They stated, inter alia, that up to 2 security October 1977, each of the subsidiaries provisional duty. had paid provisional duty totalling given By Council Regulation (EEC) No 944/77 sums and secured further payments up to 'bond'
of 3 May 1977 (OJ L 112, 1977, p. 1), the given amounts by a (NSK
NIPPON SEIKO v COUNCIL AND COMMISSION
Bearings Europe Ltd.), by 'bank the Council and/or the Commission (NSK Kugellager GmbH) or instruct guarantees'
to the relevant competent 'guarantee'
a the nature of which was not authorities in the United Kingdom, specified (NSK France SA); that by the Federal Republic of Germany and
having to finance such payments or to France not to claim or demand give such guarantees they had suffered payment from the subsidiaries of: losses of which details were provided by — The still outstanding parts of the
the applicants; sums which are to be paid under
Article 3 of Regulation No They requested the Court, inter alia: 1778/77, the details of these parts — To declare Regulation No 1778/77 being given by the applicants; void; —
Any further sum or sums which
—
Alternatively to declare it void in so the said authorities may demand far as it affects the applicants or any by way of provisional duty from of them; the subsidiaries, pending the — In the further alternative to declare it judgment in the main appli
void in so far as it purports to order cation;
that the amounts secured by way of — To order such other relief by way of
provisional duty by the subsidiaries suspensory order or interim measures should be definitively collected; as may be lawful or equitable in all
— To order the Council and/or the the circumstances; Commission to instruct the relevant — To order the Council and/or the
in United Commission applicants'
competent authorities the to pay the
Kingdom, the Federal Republic of costs. 'repay'
Germany and France to to the subsidiaries the sums already paid to In support of this application the
those authorities with interest thereon applicants state essentially as follows: at such rate as may seem to the Court just and equitable, from the dates of Unless the present application is granted, actual payment of such sums by the the subsidiaries would suffer irrevocable subsidiaries to the dates of actual damage. They then would have to pay in repayment to the subsidiaries; the near future the provisional duty still — To order the Council and/or the outstanding, or the security given for this Commission to make good the duty would be enforced, or this duty
damage caused to the subsidiaries would otherwise be collected by process together with interest thereon at such of law in the three Member States rates and for such period as may concerned.
seem just and equitable to the Court As appears from documents in the file, Also on 10 October 1977 NSK and the demands for payment have already been subsidiaries in addition applied to the made on NSK Bearings Europe Ltd. and Court in pursuance of Article 185 and NSK Kugellager GmbH, and payment of 186 of the EEC Treaty, requesting it, the sums required cannot be deferred
pending the judgment in the main much longer. As for NSK France S.A., application: the French customs authorities informed — To suspend the application of Counsel for this company on 4 or 5 Regulation No 1778/77 in so far as it October 1977 that instructions to local purports to provide, by Article 3, customs offices to collect the provisional
for the definitive collection of duty were going out very soon; it
anti-dumping duties from the therefore is to be expected that the said
subsidiaries; authorities will press for payment during — To order the necessary interim the course of the week commencing 10 measures, and in particular to order October 1977.
ORDER OF 20. 10. 1977 — CASE 119/77 R
If in the main application the Court EEC Treaty is that actions brought before should uphold the applicants' claim, the Court shall not have suspensory while the subsidiaries are now required effect Pursuant to Article 83 of the Rules to pay the provisional duty still of Procedure of the Court of Justice, an outstanding, they 'will have lost the use exception is only justified if the applicant of their money, or will have had to demonstrates the existence of factual and borrow the money for the substantial legal establishing a prima facie grounds
period of time that will elapse between case for the interim measures applied for.
the payment ... and the final determination of the main application'. The applicants have failed to meet these
requirements. The collection of the
As shown by figures quoted in the provisional duty would cause them no
application, the provisional duty payable injury, let alone a serious and irreparable to the national customs authorities is in injury. As appears from figures given by each case secured, and the guarantee fee the Council and the Commission, the
payable is in each case considerably additional monthly expenditure indicated lower than the interest rate payable by by the applicants represents only an
the subsidiaries if they are forced to pay extremely small proportion of the the outstanding amounts. The applicants average monthly turnover of the
provide details of the additional monthly subsidiaries.
expenditure which the subsidiaries would
incur in this case. Financial injury is always reparable, as is shown by the very requests of the If, on the other hand, the Court grants applicants in the main case. The the present application but were to reject applicants have failed to demonstrate the main application, the subsidiaries that, if they obtain favourable judgment would simply have to pay the provisional in the main action, interest of the sums duty now outstanding, all of which is in collected would not be granted or that
any event secured. the payment of such interest could not
be secured by judicial remedies under the There thus is 'a clear balance of national law of the Member States in favour convenience'
of making the concerned.
interlocutory order asked for, 'so as to preserve the present status quo'. If a balance were to be made, it should
weigh the financial burden imposed on
The Council and the Commission the applicants against the necessity of
contend that the application should be ensuring the effective functioning of
dismissed with costs for the following Community regulations, in particular in reasons: the field of commerce.
As to the first and second requests, the As to the third request, the applicants
rule established by Article 185 of the have not indicated any legal basis for it.
Decision
1 The Council and the Commission have not contested that the competent
British, French and German customs authorities are insisting that the
outstanding payments required under Article 3 of Regulation No 1778/77
NIPPON SEIKO v COUNCIL AND COMMISSION
shall be made forthwith. Nor have that the subsidiaries they contested will
incur the additional charges referred to by the applicants in the event of the dismissal of the latter's application for the adoption of interim measures.
2 It has not been possible to establish conclusively within the context of the
present proceedings, whether, in the event of the applicants'
being successful
in the main action, this expenditure would be wholly recouped.
3 Having regard to the probable duration of the procedure in the main action, chargesat the rate quoted by the applicants cannot be regarded as negligible.
4 On the other hand the Council and the Commission have not been able to
demonstrate that the adoption of the interim measures applied for would
cause appreciable detriment to the European Economic Community if the subsidiaries were to maintain the existing security in the outstanding sums to be paid in accordance with Article 3 of Regulation No 1778/77 and if the applicants were to be unsuccessful in the main action.
5 The applicants have thus substantiated the circumstances giving rise to
urgency and the factual and legal grounds establishing a prima facie case for the suspension of the application to the applicants of the abovementioned
Article 3 (Article 83(2) of the Rules of Procedure of the Court of Justice) as far as concerns the sums owed by the subsidiaries under Article 3 but not yet paid by them.
6 To that extent therefore the application to the applicants of the said article NSK
must be suspended until the final judgment in the case of and Others v Council and Commission (Case 119/77) on condition that and for so long as the subsidiaries continue to provide security for the performance of their
obligation in the outstanding they amounts which are required to pay in
pursuance of Article 3 of Regulation No 1778/77.
7 The decision with regard to costs should be reserved for the final judgment in Case 119/77.
ORDER OF 20. 10. 1977 — CASE 119/77 R
On those grounds,
The President,
as an interlocutory decision, hereby orders as follows:
1. The application to Nippon Seiko K.K., NSK Bearings Europe
Ltd., NSK Kugellager GmbH and NSK France S.A. of
Article 3 of Council Regulation (EEC) No 1778/77 is suspended until the final judgment in the case of NSK and Others v
Council and Commission (Case 119/77) as far as concerns the
sums owed by the subsidiaries under the said article but not yet paid by them, on condition that and for so long as the subsidiaries continue to provide security for the performance
of their obligation in the said amounts;
2. Costs are reserved for the final judgment in the case of NSK and Others v Council and Commission (Case 119/77).
Luxembourg, 20 October 1977.
A. Van Houtte H. Kutscher
Registrar President