C-307/81

JUDGMENT OF 6. 10. 1982 — CASE 307/81

Such measures do not cease to be only on the nature of the measure regulations because it is possible to itself and the legal effects which it determine the number or even the produces and not on the procedures identity of the persons to whom they for its adoption. Consequently, the apply at any given time as long as it is participation of the various interested established that such application takes parties in the successive stages of the effect by virtue of an objective legal procedure leading to the adoption of or factual situation defined by the regulations cannot lead to the measures in relation to their purpose. conclusion that they in fact constitute individual administrative measures which may be contested by individuals 3. The distinction between a regu­ under the second paragraph of Article lation and a decision may be based 173 of the Treaty.

In Case 307/81

ALUSUISSE ITALIA SPA , 31 Via Vittor Pisani, Milan, represented by Giuseppe Celona and Gian Carlo Gabardini, Advocates having a right of audience before the superior courts of the Italian Republic, with an address for service in Luxembourg at the Chambers of Georges Margue, 20 Rue Philippe-II,

applicant,

v

(Official Journal L 141, p. 29) and Council Regulation (EEC) No 2761/81 of 22 September 1981 imposing a definitive anti-dumping duty on o-Xylene (orthoxylene) originating in Puerto Rico and the United States of America (Official Journal L 270, p. 1) are void,

THE COURT (Third Chamber)

composed of: A. Touffait, President of Chamber, Lord Mackenzie Stuart and U. Everling, Judges,

Advocate General: S. Rozès Registrar: M. Dauses, Legal Secretary

gives the following

JUDGMENT

The two regulations mentioned above, which were adopted on the basis of Council Regulation (EEC) No 3017/79 II — Conclusions of the parties of 20 December 1979 on protection against dumped or subsidized imports from countries not members of the The Council contends that the Court European Economic Community should: (Official Journal L 339, p. 1), imposed anti-dumping duties, provisional in one Declare the application inadmissible; case and definitive in the other, on Order the applicant to pay the costs. orthoxylene falling under subheading 29.01 D I of the Common Customs The Commission contends that the Court Tariff and corresponding to Nimexe should: code 29.01-65 and which originated in Puerto Rico and the United State's of Declare the application inadmissible in America, with the exception, however, of its entirety; orthoxylene exported by certain under­ Order the applicant to pay the costs. takings expressly named. The rate of duty was fixed in the two regulations at The applicant on the other hand claims 14.47% of the customs value except for that the Court should: exports made by certain companies, which were also expressly named, for Primarily, dismiss the objections which which a lower rate of duty was fixed. have been raised; In addition, Council Regulation No In the alternative, reserve its decision on 2761/81 determined the extent to which those objections for the final judgment; the amounts secured by way of pro­ visional duty pursuant to Commission With regard to the costs, make an award Regulation No 1411/81 fell to be in favour of the applicant in the final definitively collected. judgment.

According to the settled case-law of the particular the judgments of 17 June 1980 Court, the following three conditions (Joined Cases 789 and 790/79 Calpak must be fulfilled for a natural or legal [1980] ECR 1949) and of 26 February person other than a Member State or a 1981 (Case 64/80 Giuffrida [1981] ECR Community institution to be able to 693). In the light of that case-law it contest a regulation pursuant to the considers that the contested measure has second paragraph of Article 173 of the not only the form but also the character Treaty: The person concerned must be of a regulation for the following three able to establish, first, that the measure, reasons: First, the measure applies to all although in the form of a regulation, in undertakings importing orthoxylene orig­ fact constitutes a decision, at least, in so inating in Puerto Rico and the United far as he is concerned, secondly, that the States, that is to say a generalized and measure is of direct concern to him and, abstract category of undertakings, which thirdly, that the measure is of individual is in fact indeterminate and indeter­ concern to him. The first and third minable. Secondly, the measure intro­ conditions are not fulfilled in the case of duced is not intended to apply to a an independent importer such as the specific person or to a determinable applicant. number of cases. Finally, the anti­ dumping duty was imposed on the basis of an objective situation defined in With regard to the first condition, Regu­ relation to the purpose pursued by the lation No 2761/81 displays all the regulation in question, which is to characteristics of an orthodox regulation. introduce measures of commercial policy It is of general application and is intended to protect the Community intended to be applied impersonally to industry against dumped products objective situations of law and of fact, imported from non-member countries. that is to say, to all imports into the territory of the Member States of products on which it imposes an anti­ With regard to the third condition, dumping duty. namely that the measure must be of individual concern to the applicant, the The imposition of an anti-dumping Council claims that according to the duty constitutes a legislative measure case-law of the Court of Justice, in inasmuch as it affects the application of particular the judgment of 16 March the Common Customs Tariff, which 1978 (Case 123/77 UNICME [1978] itself constitutes a legislative measure. ECR 845), that condition cannot be For that reason the Council laid down considered to be fulfilled unless the the requirement in Article 13 (1) of applicant proves that the contested the basic regulation, Regulation No measure concerns him by reason of 3017/79, that the imposition of that duty characteristics which are peculiar to should be by regulation. The fact that him or of a situation of fact which the contested measure specifies certain dinstinguishes him from all other details, such as the product in question persons. The only characteristic to which or the name of the supplier, does not the applicant can point is that it falls diminish the general application of the within the category of importers of measure, and thus its status as a regu­ orthoxylene. lation.

by specific measures applying to the With regard to Regulation No 2761/81, product which it imports, that is to say, in so far as the application is against the because of its status as an importer of Commission, the latter considers that orthoxylene. Any natural or legal person there are no grounds for an action may pursue that activity, so that it is not against it since the measure in question is of such a nature as to distinguish the a Council regulation, which means that applicant from all other persons. it is the latter which is ultimately responsible for the imposition of the definitive anti-dumping duties. It follows that it is only the measure adopted by 2. The Commission contends that the the Council which is capable of having application against it is inadmissible for legal effects for individuals and that any the following reasons: irregularities committed by the Commission in the course of the procedure leading to the adoption of the Council regulation, such as the proposal With regard to Regulation No 1411/81, submitted by the Commission or the application is inadmissible because it investigations carried out by it, do not is out of time. That regulation was constitute measures which may be published in the Official Journal of 27 challenged under Article 173. May 1981 and entered into force on the same day. In accordance with the third paragraph of Article 173 of the Treaty, in conjunction with Article 81 (1) of the In any case, in so far as the application Rules of Procedure, proceedings must be concerns Regulation No 2761/81 it is instituted within two months from the inadmissible because the conditions pres­ 15th day after publication, to which must cribed by the second paragraph of be added an extension on account of Article 173 of the Treaty are not distance of 10 days for Italy, so that in fulfilled. The applicant must be classified this case the proceedings should have as an independent importer and thus is been instituted at the latest on 21 August not affected individually by that regu­ 1981. lation. On this point the Commission supports the arguments set out by the Council.

the course of such proceedings the acteristics of an administrative measure. question of any irregularity in the It must be borne in mind in that Community regulation, on which point connection that a set of abstract and the Court may then be requested to give general rules for a specific sector or for a a ruling under Article 177 of the Treaty. certain category of persons may create, expressly or by implication, a particular disadvantage for a person. In that case, although the measure retains the nature of a regulation, it is equivalent, in certain elements or in certain respects, to a 3. Alusuisse advances the following decision with regard to the person whom arguments in favour of the admissibility it affects directly and individually. That of its application: is confirmed by the case-law of the Court, in particular by the judgment of 13 May 1971 (Joined Cases 41 to 44/70 International Fruit Company [1971] ECR 411). In that judgment the Court The contested regulations are of direct enunciated the concept of a "closed and individual concern to it. That category", stating that a provision of a follows from the very principles regulation applying to such a category governing anti-dumping measures and in was not "a provision of general particular from the procedure for their application within the meaning of the adoption. The anti-dumping regulations second paragraph of Article 189 of the in fact constitute decisions involving, in Treaty, but must be regarded as a economic terms, three parties: The conglomeration of individual decisions producer charged, the user who benefits taken. .. under the guise of a regu­ and the competing producer who is lation ..." injured. The anti-dumping procedure has regard for that circumstance in so far as, on the one hand, investigations are normally instituted at the request of the persons concerned and, on the other, in Alusuisse emphasizes in this context that addition to the complainants and the representatives of the exporting country, it is one of the principal importers of the exporters and importers known to orthoxylol in the Community and that it the Commission to be concerned parti­ obtains supplies in particular in the cipate in the procedure. That principle is United States. It is thus in the position of embodied in particular in Article 7 of an importer known to be concerned, the Regulation No 3017/79, which refers in more so since it is dependent for its this connection to "interested parties" principal production on such imports. and to "parties directly concerned".

2 Those regulations imposed, provisionally in one case and definitively in the other, an anti-dumping duty on orthoxylene falling under subheading 29.01 D I of the Common Customs Tariff and corresponding to Nimexe code 29.01-65, and which originated in the two abovementioned countries, with the exception, however, of orthoxylene exported by certain undertakings expressly named. The Commission regulation, which was applicable for four months or until the adoption by the Council of definitive measures, made the release for free circulation of that product subject to the provision of a security equivalent to the amount of the provisional duty. The Council regu­ lation, on the other hand, specified inter alia the extent to which the amounts secured by way of provisional duty were to be definitively collected.

ALUSUISSE i COUNCIL AND COMMISSION

3 The applicant produces phthalic anhydride intended for the manufacture of phthalic plasticizers and resins. The principal raw material necessary for such production is orthoxylol (orthoxylene), which the applicant imports as an independent importer, that is to say one which is not linked to a manufac­ turing or exporting undertaking, inter alia from the United States and from Puerto Rico.

4 Since the Council and the Commission raised an objection of inadmissibility under Article 91 (1) of the Rules of Procedure, the Court decided to adjudicate on the question of the admissibility of the application for a declaration that the measures were void, without examining the substantive issues of the case.

5 The objection raised by the Council is that Council Regulation No 2761/81 is a regulation of general application which is not of individual concern to the applicant and that, under the second paragraph of Article 173 of the Treaty, the latter is not entitled to seek a declaration that a regulation is void. The Commission for its part challenges the admissibility of the application in so far as it is directed against Commission Regulation No 1411/81 on the ground that the time-limit laid down by the third paragraph of Article 173 was not met and supports the arguments of the Council with regard to the admissibility of the action brought against the Council regu­ lation.

9 In that connection it should be borne in mind that the regulations at issue have as their object the imposition of an anti-dumping duty on all imports of orthoxylene originating in the United States of America and Puerto Rico, subject to certain exemptions laid down for products exported by under­ takings expressly named. Consequently, such measures constitute, as regards independent importers who, in contrast to exporters, are not expressly named in the regulations, measures having general application within the meaning of the second paragraph of Article 189 of the Treaty, because they apply to objectively determined situations and entail legal effects for categories of persons regarded generally and in the abstract.

10 The applicant claims in that connection that, although the contested measures were adopted in the form of regulations, they in fact constitute decisions concerning it since importers of orthoxylene who are also users of that substance form a closed category of traders of a limited number whose identity was known at the date when the regulations were adopted.

11 That argument must be rejected. As the Court has already stated, a measure does not cease to be a regulation because it is possible to determine the number or even the identity of the persons to whom it applies at any given time as long as it is established that such application takes effect by virtue of an objective legal or factual situation defined by the measure in relation to its

ALUSUISSE v COUNCIL AND COMMISSION

purpose. That applies to independent importers of orthoxylene. Under the regulations the anti-dumping duty is imposed on persons importing the product from the countries in question solely by reference to the objective criterion that they are importers of that product. Consequently, the regu­ lations at issue constitute, as regard such importers, measures having general application within the meaning of the second paragraph of Article 189 of the Treaty and not decisions of direct and individual concern to them.

On those grounds,

THE COURT (Third Chamber)

hereby:

inadmissible;; 1. Dismisses the application as inadmissible

costs.. 2. Orders the applicant to pay the costs

Touffait Mackenzie Stuart Everling