C-121/77
ECLI:EU:C:1977:180
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- Súdny dvor Európskej únie
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- 61977CO0121
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ORDER OF THE PRESIDENT OF THE COURT 9 NOVEMBER 1977
Nachi Fujikoshi Corporation and Others v Council of the European Communities
Case 121/77 R
In Case 121/77 R
1. NACHI FUJIKOSHI CORPORATION , Tokyo, represented by its President, Toshio Takamatsu,
2. NACHI ( DEUTSCHLAND) GMBH , Düsseldorf, represented by its Managing Director, Masao Tomita,
3. NACHI (UK) LTD ., Birmingham, represented by its Managing Director, Minoru Yoshida,
assisted by Dr Lothar Nagel, Advocate in Dusseldorf, with an address for service inLuxembourg at the offices of Mrs Danielle d'Huart, 11 A, Boulevard Prince Henri,
applicants,
v
COUNCIL OF THE EUROPEAN COMMUNITIES , represented by its Legal Adviser, Peter Brückner, with an address for service in Luxembourg at the offices of Mr Van den Houten, European Investment Bank, Place de Metz,
defendant,
THE PRESIDENT OF THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES
makes the following
1 — Language of the Case: German.
ORDER OF 9. 11. 1977 - CASE 121/77 R
ORDER
Facts
1. Article 15 (1) (a) of Regulation (EEC) The period not exceeding three months. No 459/68 of the Council of 5 April regulation applied 'until the entry into 1968 on protection against dumping or force of a Council act definitive adopting the granting of bounties or subsidies by measures or, at the latest, until the expiry countries which are not members of the of a period of three months beginning European Economic Community (OJ, on 5 May 1977'. English Special Edition 1968 (I), p. 80) provides as follows: These definitive measures were adopted
by Council Regulation (EEC) No Where preliminary examination of the 1778/77 of 26 July 1977 (OJ L 196, p. 1), matter shows that there is dumping and which entered into force on 4 August there is sufficient of injury and evidence 1977. This regulation:
the interests of the Community call for — introduced a definitive anti-dumping immediate intervention, the Commis duty of 15 % on ball bearings and sion ... shall: tapered roller bearings originating in —
..., fix an amount to be secured by Japan (Article 1(1)); of provisional suspended, under given conditions, way anti-dumping —
duty, collection of which shall be the application of this duty (Article determined by the subsequent 1(2)); decision of the Council under Article —
ordered that the amounts secured by 17; way of provisional duty under the
provisions of Regulations Nos 261/77 — stipulate that entry ot such products and 944/77, in respect of products
for Community consumption shall be manufactured and exported by —
conditional upon the provision of among others Nachi Fujikoshi—
security for the aforementioned Corporation (hereinafter referred to as amount. 'Nachi'), 'shall be definitively col
lected to the extent that they do not Having regard in particular to the exceed the rate of duty fixed in this aforesaid article, the Commission of the regulation', that is, 15 % (Article 3). European by Regulation Communities, (EEC) No 261/77 of 4 February 1977 (OJ Nachi's German subsidiary, Nachi L 34, p. 60) introduced a provisional (Deutschland) GmbH, paid the German
anti-dumping duty of 20 % on ball customs authorities on 29 August 1977
bearings, tapered roller bearings and the whole amount owed by Nachi under parts of those two types of bearings, Article 3 of Regulation No 1778/77 in
originating in Japan, and made the entry respect of its imports into Germany. The of such products for Community con security which it had previously provided
sumption conditional upon the pro lapsed. vision of security for the amount of the
provisional duty. In September 1977 Nachi's British
subsidiary, Nachi (UK) Ltd., paid the
By Council Regulation (EEC) No 944/77 British customs authorities a small
of 3 May 1977 (OJ L 112, p. 1), the proportion of the amount which Nachi provisional duty was extended for a owed under the abovementioned pro-
NACHI FUJIKOSHI v COUNCIL
vision in respect of its imports into the the cost of a bank guarantee for monthly United Kingdom; it furnished a bank the same amounts.
guarantee in respect of the remainder of
the amount owed. The Council submitted its observations
in two documents which were received at 2. (a) In an application against the the Court Registry on 19 October and 4 Council received at the Court Registry November 1977. Its statements may be on 10 October 1977, Nachi and the summarized as follows: abovementioned subsidiaries requested
that Regulation No 1778/77, or in the In so far as the applications relate to the alternative Article 3 thereof, should be amounts which have not yet been paid declared void (Case 121/77). In their the Council leaves the decision to the application they state in detail why the discretion of the Court. In this abovementioned regulation is in their connexion it refers to the Orders of the view incompatible with Community law. President of the Court of Justice of 14 They claim in particular that the order October 1977 in Case 113/77 R and Case contained in Article 3 of the regulation 113/77 R — Application to Intervene that the amounts secured should be and of 20 October 1977 in Case 119/77 definitively collected is not justified R. These orders suspended the because Nachi gave the Commission an application of Article 3 of Regulation No undertaking to increase its prices and the 1778/77 to the Japanese companies Commission accepted the undertaking. NTN Toyo Bearing Co Ltd. (Case 113/77 R and Case 113/77 — Application to (b) On 12 October 1977 Nachi and its subsidiaries applied under Article 83(1) of Intervene) and Nippon Seiko KK. (Case 119/77 R) which are also affected —
by the Rules of Procedure of the Court of this provision —
and to their European Justice for the adoption of interim subsidiaries, as far as concerns the sums measures. The requests, which were owed but not yet paid under Article 3 of amended in subsequent documents Regulation No 1778/77 on condition received at the Court Registry on 24 and that and for so long as these companies 25 October 1977, are in their final continue to provide security in the said version to the effect that the Court amounts. should:
— Order that the amounts which have
already been paid, where applicable In so far as the applications are for the against the provision of a corre repayment of the amounts which have
sponding bank guarantee, should be already been paid, it is impossible to
repaid; grant them. If this were not so the
— Suspend the application of Article 3 principle laid down in Article 185 of the
of Regulation No 1778/77 in respect EEC Treaty, according to which acts of of the balance owed in so far as a the institutions of the Community are guarantee has already been provided. considered to be lawful unless the Court has declared them void, would be The applicants refer to the contents of infringed. In the established case-law of
their application in Case 121/77 in the Court applications for the adoption
support of their claims. In addition, they of interim measures which went beyond state that if the order which they have the suspension of the operation of the
requested is not issued they would incur measures in question have been serious damage since, as they show with dismissed. Quite apart from this, the
the aid of figures, the monthly interest applicants could have lodged applications
which they would have to pay in respect before payment and could have requested
of a bank loan taken up in the amounts the suspension of the operation of
owed would be considerably higher than Regulation No. 1778/77. In addition,
ORDER OF 9. 11. 1977 - CASE 121/77 R
they have not shown that they would turnover of the applicants any loss incur serious and irreparable damage if of interest must be regarded as
the amounts which have been paid were unimportant. Finally, the amounts
retained until judgment has been involved are not commensurate with the
delivered in the main action. In measures which would be necessary if an
comparison to the average monthly order for repayment were made.
Decision
1 The Council has not contested that the applicants would incur the additional
charges to which they have referred in the event of the dismissal of their
application. It has not been possible to establish conclusively within the
in applicants'
context of the present proceedings whether the event of the
being successful in the main action this expenditure could be recouped. Having regard to the probable duration of the procedure in the main action charges of the amount quoted by the applicants cannot be regarded as negligible.
2 It is however necessary to distinguish between the proportion of the amounts
owed which has not yet been paid and that which has already been paid.
3 With regard to the proportion which has not yet been paid by the applicant Nachi (UK) Ltd. the Council has 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 applicant were to
maintain the existing bank guarantee in that amount. It is in addition
necessary to take into consideration in the applicant's favour with regard to
that proportion the fact that the President of the Court ofJustice has already granted corresponding requests in the Orders of 14 and 20 October 1977 in
Cases 113/77 R and 113/77 R — Application to Intervene and 119/77 R.
4 On the other hand it is necessary to state with regard to the amounts already paid by Nachi (UK) Ltd. and Nachi (Deutschland) GmbH and collected by the national customs authorities that an order for the repayment of these
amounts would go beyond the suspension of the application of Article 3 of
Regulation No 1778/77. This is because that provision has already been applied in respect of those amounts. In addition, the charges incurred by the
public budget involved in an order for repayment are heavier than the
damages which the applicants would incur in the event of the dismissal of
NACHI FUJIKOSHI v COUNCIL
their applications. Finally, it is necessary to take into consideration the fact
that the applicants could have lodged an application for the suspension of the
application of Article 3 of Regulation No 1778/77 before payment of those
amounts.
5 The applicants have finally substantiated the circumstances giving rise to
urgency and the factual and legal grounds establishing a prima facie case for
the interim measures sought (Article 83(2) of the Rules of Procedure of the
Court of Justice) only in so far as their application concerns the amount owed
but not yet paid by Nachi (UK) Ltd. The application of Article 3 of
Regulation No. 1778/77 to Nachi (UK) Ltd. must therefore be suspended
until the final judgment in the case of Nachi and Others v Council (Case
121/77) with regard to this amount, on condition that and for so long as that company continues to provide security for the performance of its obligation
in the abovementioned amount. On the other hand it is necessary to dismiss
the applications in so far as they seek the repayment of those amounts which
Nachi (UK) Ltd. and Nachi (Deutschland) GmbH have already paid.
6 The decision with regard to costs should be reserved for the final judgment in Case 121/77.
On those grounds,
THE PRESIDENT,
as an interlocutory decision, hereby orders as follows:
1. The application of Article 3 of Council Regulation (EEC) No 1778/77 to the applicant Nachi (UK) Ltd. is suspended until
the final judgment in the case of Nachi and Others v Council (Case 121/77) as far as concerns the sum owed but not yet paid
by Nachi (UK) Ltd. under the abovementioned provision, on
condition that and for so long as Nachi (UK) Ltd. continues to provide security for the performance of its obligation in that
amount.
2. In all other respects, the applications are dismissed.
ORDER OF 9. 11. 1977 - CASE 121/77 R
3. The decision with regard to costs should be reserved for the
final judgment in the case of Nachi and Others v Council
(Case 121/77).
Luxembourg, 9 November 1977.
A. Van Houtte H. Kutscher
Registrar President
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