C-191/82

JUDGMENT OF 4. 10. 1983 — CASE 191/82

lation No 3017/79 and whether or to give rise to a belief that sub­ not it has committed manifest errors sidization is taking place or has in its assessment of the facts, has included in the reasons on which its omitted to take into consideration any decision is based considerations essential matters of such a nature as amounting to a misuse of powers.

In Case 191/82

EEC SEED CRUSHERS' AND OIL PROCESSORS' FEDERATION (FEDIOL), having its registered office in Brussels, represented by Dietrich Ehle, Rechtsanwalt, Cologne, with an address for service in Luxembourg at the Chambers of Ernest Arendt, 34 B Rue Philippe-II, applicant,

v

COMMISSION OF THE EUROPEAN COMMUNITIES, represented by its Legal Adviser, Peter Gilsdorf, acting as Agent, with an address for service in Luxembourg at the office of Oreste Montalto, a member of its Legal Department, Jean Monnet Building, Kirchberg, defendant,

JUDGMENT

Facts and Issues

The facts of the case, the course of countries not members of the EEC the procedure and the conclusions, (Official Journal 1979, L 339, p. 1). submissions and arguments of the parties may be summarized as follows: The Council considered that, in order to implement the protective measures, it was necessary to lay down procedures I — Facts "for anyone acting on behalf of a Community industry which considers itself injured or threatened by dumped or subsidized imports to lodge a For the purpose of implementing the complaint". As a result Article 5 of common commercial policy and of the Regulation No 3017/79 provides: harmonious development of the external trade of the Community the Council, in Regulation No 459/68 of 5 April 1968 "(1) Any natural or legal person, or any on protection against dumping or the association not having legal per­ granting of bounties or subsidies by sonality, acting on behalf of a countries which are not members of the Community industry which con­ EEC (Official Journal, English Special siders itself injured or threatened by Edition 1968 (I), p. 80), created, with dumped or subsidized imports may due regard to the rules laid down in lodge a written complaint. Article VI of the General Agreement on Tariffs and Trade (GATT) and in the Agreement on Implementation of that article, a common system of protection (2) The complaint shall contain against imports from non-member sufficient evidence of the existence countries which are the subject of of dumping or subsidization and dumping or the grant of bounties or the injury resulting therefrom. subsidies.

(5) "Where it becomes apparant after and export subsidies for soya-bean oil­ consultation that the complaint cake. It related, more specifically, to four does not provide sufficient evidence types of subsidy: to justify initiating an investigation, then the complainant shall be so The levying of higher export duties in informed. respect of soya beans than in respect of soya-bean oil-cake which is a product derived from them; (6) Where, in the absence of any complaint, a Member State is in possession of sufficient evidence The setting of export quotas for soya both of dumping or subsidization beans with the result that domestic prices and of injury resulting therefrom of soya beans for the Brazilian oil for a Community industry, it shall industry are lower; immediately communicate such evidence to the Commission." The levying of a higher tax on the movement of goods in respect of the export of soya beans than in respect of Pursuant to Article 5 (1) of Regulation soya-bean oil-cake; No 3017/79 the EEC Seed Crushers' and Oil Processors' Federation (Fediol) The granting of a preferential rate of (hereinafter referred to as "the Feder­ interest for credit in respect of exports of ation"), having its registered office at soya-bean oil-cake. Brussels, lodged a complaint with the Commission on 2 April 1980 by which it The Federation's complaint contained requested the initiation of an anti-sub­ numerous data intended to prove the sidy proceeding against the Federative existence of such subsidies and to show Republic of Brazil in respect of imports the damage suffered as a result by the of soya-bean oil-cake. Community oil-processing industry.

interested parties may make known altered its view of the case; consequently their views in writing and may and in pursuance of Article 5 (5) of apply to be heard orally by the Regulation No 3017/79 the Federation Commission in accordance with was informed that an anti-subsidy paragraph (5); procedure in respect of imports of soya­ bean oil-cake from Brazil would not be (b) so advise the exporters and importers initiated. known to the Commission to be concerned as well as representatives The Commission added that it would of the exporting country and the continue to watch the development of complainants; the situation in that sector, all the more so since the course of Brazilian policy in (c) commence the investigation at Com­ credit matters gave rise to concern as munity level, acting in cooperation regards both time-limits and rates. with the Member States; such investigation shall cover both dumping or subsidization and injury resulting therefrom and shall be II — Written procedure carried out in accordance with paragraphs (2) to (8)." On 29 July 1982 the Federation brought an action claiming that the Court should: Brazil abolished one of the contested export duties in April 1980 and the 1. Declare void the decision contained in Federation's complaint was amended the notification of the Commission accordingly by letter of 23 June 1980. dated 25 May 1982 refusing to initiate an anti-subsidy proceeding in respect The statement of facts and law contained of the importation of soya-bean oil­ in the complaint was concluded by a cake from Brazil; number of observations made by the Federation; consultations took place be­ 2. Order the Commission to pay the tween the Commission and the Member costs. States and between the Commission and Brazil. Pursuant to Article 91 of the Rules of Procedure the Commission lodged at the By letter of 5 February 1982 the Court on 11 October 1982 a document Commission informed the Federation requesting it to give a preliminary that after detailed examination of its decision on the admissibility of the complaint and as a result of consultations action, to dismiss the application as with the Brazilian Government, it did inadmissible and to order the applicant not intend to initiate an anti-subsidy to pay the costs. procedure. It based its intention on the fact that the contested subsidies were to all intents and purposes no longer being The applicant in the main action, being applied and that their total effect was the defendant in relation to the objection insufficient to justify initiation of a of inadmissibility, submitted its obser­ procedure. vations on 11 November 1982 in which it requested the Court not to grant the Commission's request that it should give By letter of 25 May 1982 the Com­ a preliminary decision as to admissibility, mission informed the Federation that the to dismiss the objection of inadmissibility supplementary information and obser­ and to order the Commission to pay the vations which it had submitted had not costs.

The Commission emphasizes that this Nevertheless, takings account of the case is the first one brought before the powers of a procedural nature given by Court concerning the legal position, in Regulation No 3017/79 to associations the context of an anti-dumping or anti- lacking legal personality but acting in the subsidy proceeding, of a complainant or name of a Community industry, it would of an industry in a Member State be illogical to refuse such an association affected by dumping or subsidization. By the right to bring an action; it is way of preliminary proceedings and at therefore appropriate to give a broad the level of general principles, it raises interpretation of the concept of "legal the question whether a complainant such person" within the meaning of the as the applicant is entitled to require the second paragraph of Article 173 of the Commission to commence a formal EEC Treaty. proceeding; that question is closely related to the question whether a The applicant, being the defendant in complainant or any person affected by relation to the objection of inadmis­ subsidies granted by a non-member sibility, for its part considers that in country has a right to require the accordance with the generally accepted adoption of measures or in particular the principle of examining the reality of the imposition of a countervailing duty. The situation all combinations which are question is of fundamental importance recognized by law and vested with not only for its side-effects in the sphere certain powers, particularly combinations of economic and commercial policy and able to express a collective intent in the its purely political implications but also defence of interests which are legally for its bearing on legal protection in the recognized and protected have in Community. principle legal personality and the capacity to institute legal proceedings. The applicant, being the defendant in relation to the objection of inadmissi­ bility, does not contest the importance of In any case Article 5 (1) of Regulation the problem of the admissibility of. its No 3017/79 gives "any association not action which must be seen in the more having legal personality" acting on general context of legal protection behalf of a Community industry the right against subsidies and dumping effected to lodge a complaint; it necessarily by non-member countries and the follows that such an association has the resolution of which must take into capacity to institute proceedings under account the legal position in other States the second paragraph of Article 173 of which are parties to GATT. the Treaty.

The applicant considers that the letter of 25 May 1982 does indeed amount to a decision of the Commission with regard The communication did not go beyond to the request to initiate a proceeding. the information provided for in Article 5 (5) : it did not contain any decision since no such act was provided for or covered by that provision. It cannot be conceded C — The question whether the contested that the reference to that provision communication is a decision within simply concealed the real nature of the the meaning of the second paragraph communication and that the legal basis of Article 173 of the Treaty for it must be found in Articles 5 (2), 7 (1) and 9 of Regulation No 3017/79 or in the principles of legal certainty and legal clarity. The Commission is of the opinion that, in order to constitute a decision within the meaning of the second paragraph of Article 173 of the Treaty, it is not sufficient for a communication to have It is true that the regulation is silent on some legal effect; it must have binding the matter of the rejection of a request legal effect so that it brings about a for the initiation of a proceeding. distinct change in the applicant's legal However, the Community legislature position: it is not sufficient if his interests deliberately abstained from including are simply infringed. such formal rules governing the termin­ ation of the preliminary procedure; it is not possible to deduce from the right to Thus it is necessary to decide whether lodge a complaint within the meaning of the communication sent to the applicant Article 5 (1) and (2) a right to a formal on 25 May 1982 was such as to have decision capable of being subject to such a specific legal effect. The answer is review by the Court. The fact that it is not to be found in the external form of possible to initiate an official inves­ the measure or in its apparent content tigation does not, in any case, mean that but in the purpose of the compensatory the preliminary procedure which it procedure, regard being had to the follows must be terminated by a decision. applicant's position in relation to the The general principles of law by no whole proceeding. means require such a decision; they may,

The Court's case-law with regard to competition provides hardly any assist­ The complainant's interests are, without ance in this context; only the statements doubt, affected by the expression of the contained in its judgment of 18 October Commission's intention not to initiate an 1979 (Case 125/78 GEMA [1979] ECR official proceeding at that time; however 3173) could be considered to any degree. the only decisive question is whether the The fact that a complaint does not result fact that the interests have been affected in the action desired does not seem to be in such a manner may be regarded as a of a more definitive nature in an anti­ distinct change in the complainant's legal dumping proceeding than in connection position and whether it is necessary, with an infringement of competition consequently, to recognize that he has rules; furthermore there are no reasons a legally enforceable right to have to regard the legal position of a an official investigation initiated if complainant as stronger under Regu­ "sufficient evidence" within the meaning lation No 3017/79 than under the law of Article 5 (2) has been provided.

FEDIOL v COMMISSION

(c) With regard to the complainant's phrase "Where . .. the interests of the legal position in the context of the Community call for ... intervention" is compensatory rules the question is too vague for it to be possible to deduce essentially whether Community law gives therefrom legal criteria capable of being him a right to the adoption of protective the subject of judicial review. measures. In fact it does not.

All definitive measures adopted under Article 7 (9) of the regulation provides Regulation No 3017/79 are, by their that a proceeding is concluded either by nature, protective measures falling with its termination or by definitive action. the field of commercial policy, even if The complete absence of any rules they serve to protect national production governing the question whether, when and therefore also coincide with the and under what conditions definitive interests of an individual. It is for the measures must be adopted indicates that legislature to decide whether, in the light the Community legislature intended to of such personal interests, it intends the leave the relevant institution a free hand persons affected to be empowered to in that field. bring an action, in whatever form, against the decisions of the political authorities in that sector; in the area to which Regulation No 3017/79 applies it There is nothing automatic about the has not done so. adoption of definitive measures in the case of injury caused by dumping or subsidization. Definitive measures are to be adopted only if "the interests of In granting a right of complaint the the Community call for Community legislature certainly did not intend to intervention" (Article 12 (1) of the regu­ give the relevant business circles a right lation); the relevant institutions therefore to bring an action but intended, as in the have a very wide discretion with regard case of classic protective measures in the to policy in defending the interests of the area of commercial policy, simply to give Community and in balancing opposing them the formal opportunity to make interests. In this case it is not just a their opinion known to the Community question of balancing the interests of authorities. consumers and producers but of resolving much more complex conflicts of interest and, above all, of taking into It is not possible to base any argument account the compelling requirements of on the fact that such a right of action trade relations with the non-member exists in other legal systems. GATT and country in question. When considering in particular its code on subsidies leaves whether definitive measures must be completely open the question of how to adopted the Community institutions ensure observance at national level of the ought to have an unlimited discretion rules of conduct applicable in inter­ free from review by the Court. The national law.

If a complainant has no right to require The idea that the Commission, which the Community to adopt protective is the political institution having measures against a non-member country responsibility at the preliminary stage, is then he cannot have a right to the able to refuse to initiate and conduct an initiation of an official investigation official investigation if such is not in the either. Community interest and that in that respect it possesses a discretion which is not subject to review by the court, is consistent with Articles 5 and 7 of Regu­ lation No 3017/79 even in the absence of an express reference in Article 5 (5) to The recognition of such a purely pro­ the interests of the Community being cedural right does not give the taken into account. Apart from require­ complainant any benefit in the legal ments as to admissibility, Articles 5 (5) sphere except the opportunity to produce and 7 (1) require the complaint to to the Commission additional evidence provide sufficient evidence "to justify which might, in an appropriate case, initiating a proceeding"; the Commission alter its attitude; the existence of that must therefore check that all the opportunity is, however, insufficient to circumstances of the case, not only the change the complainant's legal position. aspects of dumping, subsidy and injury but also all other relevant circumstances and in particular the general interests of the Community, justify the initiation of an investigation. Above all it must be entitled to refuse to initiate a proceeding Moreover, the probable effect of the where it is convinced that, at the stage of recognition of such a right would be to a preliminary investigation, it would not subject the subsequent conduct of the be in the interests of the Community to competent authority to judicial review as adopt definitive measures. well, at least in part: the right to the initiation of a proceeding would hardly be consistent with the grant to the Commission or the Council of an absolute discretion to arrive at a The intervention of the Member States decision; at the very least it would imply in that preliminary examination in the review of any misuse of power and context of the consultations prescribed in involve a significant restriction of the any event is justified by the fact that discretion of the Community institutions. the question of what is appropriate in the circumstances must be taken into account, as is shown in particular by Article 6 (4) (d) of the regulation.

are all measures provided for in Article context of the consultations provided for 113 of the EEC Treaty, primarily in the in Article 6; general economic interest and prevail over the interests of individuals. The fact After such examination the Commission that the protective measures are intended has the opportunity either to initiate the to safeguard Community industiy is not official proceeding provided for in sufficient to give them a substantially Article 7 or not to initiate such a different nature. proceeding "in the circumstances" and to inform the complainant thereof in

GATT. In that respect there is a sub right to force the Commission to initiate stantial difference as against competition an official proceeding; accordingly a law, in the context of which measures decision not to proceed pursuant to which have the effect of distorting Article 5 (5) may not be challenged competition must, in fact be categorized under the second paragraph of Article as illegal; it is therefore not surprising 173 of the Treaty. that, in contrast to competition law, anti dumping and anti-subsidy legislation The applicant considers the communi does not, in the last resort, grant any cation of 25 May 1982 to be a definitive protection to the persons affected by the decision which brings to an end the conduct of third parties. complaints procedure within the meaning of the third paragraph of Article 189 of the EEC Treaty, which expresses the The references to GATT and its code Commission's refusal to initiate an anti- concerning subsidies do not apply in this subsidy proceeding and which affects his case: the introduction of countervailing rights; such a decision is capable of being duties is not a necessary and automatic the subject of proceedings under the reaction to subsidies which do not second paragraph of Article 173 for a conform to GATT and the provisions in declaration that it is void. question amount for the contracting parties to obligations under international law which, according to the Court's (a) The communication constitutes the case-law, do not have direct effect in Commission's definitive decision on the Community law. complaint of 2 April 1980: it was in that communication that the Commission,

JUDGMENT OF 4. 10. 1983 — CASE 191/82

The require ment that a complaint be lodged arises The declaratory nature of the contested from the urgent need to protect the communication is quite clear: the Community in question, which is in the Commission refused, formally and best position to decide whether it is definitively, to initiate an anti-subsidy suffering damage, to determine its cause proceeding despite the request contained and to assess its effects. in the complaint; the preliminary pro cedure was in fact brought to an end by a decision; without such a decision the The position is completely different from applicant would have brought an action that found in the field of competition: under Article 175 of the Treaty for a there the Commission is under a duty, in failure to act. its capacity as guarantor of competition, to establish infringements of Articles 85 The contested decision is not merely or 86 of the Treaty and to require the informative: its alleged informative undertakings to bring to an end the nature is restricted to the fact that the infringements so established; moreover, Commission referred, formally and with regard to the anti-dumping pro erroneously, to Article 5 (5) of Regu cedure it is necessary, in order to be able lation No 3017/79; in substance it does to request the initiation of a proceeding, not amount according either to its to prove damage on the basis of very contents or to its function, to the specific criteria and not only to prove the provision of information within the mere existence of a legitimate interest. meaning of that provision. The preliminary procedure must necessarily be terminated by a formal (b) It follows from the whole of the decision providing for either the scheme laid down by Articles 5 to 7 of commencement or the renunciation of a Regulation No 3017/79 that the pre

procedure: Regulation No 3017/79 The independent nature of the procedure refers expressly to two possibilities, for lodging a complaint is not weakened namely the initiation of a proceeding by the fact that, according to the anti- (Article 7 (1)) and its termination subsidy code, the Commission may act (Article 5 (4)). The view that the

Commission may at any time re-examine the unjustified refusal to initiate an the evidence submitted in the complaint investigation the complainant is deprived is incorrect and somewhat theoretical: of all the procedural guarantees provided anti-dumping and compensatory pro for by Article 7 of the regulation before ceedings presuppose up-to-date evidence the Commission adopts the decision to of dumping or subsidization as well as of terminate the proceeding if it appears the injury suffered during a specific that protective measures are unnecessary. period; since the Commission is unable to act on its own initiative it may at the most request the complainant to bring the complaint up-to-date or to lodge a The refusal to initiate a proceeding in fresh one. the given circumstances amounts a priori to a refusal to adopt protective measures unless the Commission has acquainted

and the undertakings belonging to it ought to have the benefit against (c) The rejection of a request to initiate subsidies which cause them injury. an anti-subsidy proceeding jeopardizes the legal position of the whole European oil-processing industry, on behalf of which the complaint was lodged. State subsidies must be regarded as illegal at least in those cases where they cause injury. By analogy with Article 92 of the EEC Treaty and with regard to That damage consists first of its being the anti-subsidy code of GATT the deprived of the right to have established, contested subsidies are illegal measures by an investigation conducted by the from the point of view of public inter Commission, whether the conditions national law and this accordingly justifies explained in a convincing manner and the imposition of a countervailing duty. proved at least prima facie do in fact exist The subsidies are, at the same time, the and must lead to protective measures cause of injury suffered by the oil- within the meaning of Articles 10, 11 processing industry as Community

JUDGMENT OF 4. 10. 1983 — CASE 191/82

in a commercial activity organized by the investigation the decision is also capable undertakings in question. The refusal to of being the subject of an action under initiate an anti-subsidy proceeding the second paragraph of Article 173 of deprives formal and substantive rights of the EEC Treaty. any protection.

FEDIOL ν COMMISSION

measures. According to the Court's importance only after the proceeding has case-law the undertaking carrying out been initiated and the investigation live dumping or the State granting a carried out. subsidy has a right to take legal action against protective measures adopted in The concept of "Community interest" is the form of an anti-dumping or counter of little actual importance in anti vailing duty; the Community industiy dumping and compensatory proceedings. which is injured by the dumping or sub The decisions of the Community sidization must, all the more, have institutions in such proceedings to the the right to require the competent present time have, in a manner of Community institutions, after the facts speaking, involved practically no specific have been established, to adopt the consideration of the Community interest; necessary protective mesures.

Its purpose is, in fact, investigation cannot be deduced from the to obtain judicial recognition of a concept of "Community interest". discretionary power free from control by the Court in relation to the initiation of a compensatory proceeding. This case In contrast to Article 12, Article 7 of the shows how dangerous such recognition regulation, which lays down the would be for the protection of the conditions for the initiation and conduct applicant: the Commission has already of an anti-subsidy proceeding, makes no established in 1977 that Brazil had paid . reference to the concept of Community illegal subsidies and it has twice failed

JUDGMENT OF 4. 10. 1983 — CASE 191/82

applicant the legal protection it is practice of the other contracting parties entitled to by invoking the Community to GATT and especially of the United interest would make a mockery of the States of America; in fact such States principle of a fair procedure which is allow the industry affected wide powers derived from the principle of legality. to bring an action.

Considerations of commercial policy may certainly be taken into account in (d) To regard the Commission's letter the decision-making process in the of 25 May 1982 as a decision which is context of the concept of "Community capable of being the subject of legal interest"; however, they ought not be proceedings corresponds to the re­ pleaded in order to give preference to quirements of legal protection properly the maintenance of good relations with a understood and to a precise application trading partner over the interests of the of the rules governing anti-dumping and Community industry which is suffering anti-subsidy proceedings. If that should injury. Brazil, which is a party to the not be the case it would be simple for Agreement on Interpretation and the Commission to decide, internally, Application of Articles VI, XVI and without being bound by law and without XXIII of GATT, knows the rights and the protection of the Court, which duties arising therefrom and cannot proceedings to accept and which to object to a compensatory proceeding reject. However, no such discretion is conducted by its commercial partners in given to it by Articles 5 to 7 of Regu­ accordance with the rules of that lation No 3017/79. Agreement. Regard being had to Brazil's conduct, the Commission and the Council need be in no way constrained; the Commission has, furthermore, adopted a very different attitude to the same country in other sectors. IV — Oral procedure

2 By a document lodged on 11 October 1982 the Commission, pursuant to Article 91 of the Rules of Procedure, requested the Court to give a pre­ liminary decision on the admissibility of the action.

3 It appears from the file that on 2 April 1980 the Federation lodged a complaint with the Commission in which it referred to the subsidization of exports of soya-bean oil-cake by the Federative Republic of Brazil and invited the Commission to initiate an anti-subsidy proceeding under Regu­ lation No 3017/79, to ask the Brazilian Government for explanations and to impose a provisional countervailing duty.

4 In that complaint, later supplemented by further information, the Federation states that Brazil subsidizes its exports of soya-bean oil-cake by a combination of various measures: on the one hand it exerts pressure by means of export restrictions on the domestic price of soya beans so that they are preferentially reserved at a reasonable price for national industry; on the other hand it gives preferential treatment to exports of soya-bean oil-cake by domestic fiscal measures, by levying different duties on exports of soya beans and of soya-bean oil-cake and by the grant of credit facilities for exports of soya-bean oil-cake. As a whole the measures are intended, it is alleged, to encourage the development of the Brazilian soya seed-crushing industry and they create serious difficulties for the European industry thereby jeop­ ardizing its profitability.

JUDGMENT OF 4. 10. 1983 — CASE 191/82

5 It is not disputed that the Commission investigated the practices of which the Federation complained, that it entered into negotiations with the Brazilian Government and achieved some results and that, finally, it kept the applicant informed of those discussions.

9 On 5 March 1982 a meeting took place between officers of the Commission and the Federation's representatives. As a result of that meeting the Commission on 25 May 1982 sent the applicant a letter signed by the responsible director in the Directorate General for External Relations, in

FEDIOL v COMMISSION

which it referred to the aforementioned correspondence and stated as follows :

"For that reason, and in accordance with Article 5 (5) of Council Regulation (EEC) No 3017/79, I am writing to let you know that an anti-subsidy proceeding in respect of imports of soya-bean oil-cake from Brazil is not being initiated by the Commission.

I should like to add, however, that the Commission will keep a close watch on developments in the situation in that sector, particularly as the trend of Brazilian policy relating to credit is such as to give rise to a certain concern, with regard both to time-limits and to rates."

10 The Federation brought an action under the second paragraph of Article 173 of the Treaty for a declaration that that communication was void.

1 4 Consequently the applicant considers that where there is a subsidy and resultant injury Community producers have the right to require the competent Community institutions to adopt the necessary protective measures once they have established the facts. The applicant considers that it is entitled at the present stage, regard being had to the evidence it has adduced, to require the Commission to commence the formal investigation stage provided for by Article 7 of the regulation.

15 That claim must be assessed in the light of the whole scheme of investigation and protection created by Regulation No 301/79. The applicant's rights must be defined in the context of that scheme.

16 According to the wording of Article 5 (1) and (3) any undertaking or association of undertakings in the Community which considers itself injured or threatened by subsidized imports has the right to lodge a complaint with the Commission, or a Member State, which is under a duty to forward it to the Commission. After the complaint has been submitted the governments of the Member States must be consulted in the manner provided for in Article 6 of the regulation.

17 The scope of the consultations to be carried out by the Commission at that stage is defined in Article 6 (4) which sets out the matters to be included in the preliminary consultations in respect of every decision, namely: the existence of a subsidy and the amount thereof, the existence and extent of injury, the causal link between the subsidized imports and injury and, finally, the type of measures which are appropriate to prevent or remedy the injury caused by the subsidy.

22 h< T T Commission, acting at the request of a Member State or on its own initiative may, according to Article 11, impose a provisional countervailing duty where a preliminary investigation shows that a subsidy exists and where there is sufficient evidence of injury caused thereby and the interests of the Community call for intervention to prevent injury being caused during the proceeding. The imposition of such duties is subject to the requirement of

JUDGMENT OF 4. 10. 1983 — CASE 191/82

consultation provided for in Article 6 except in cases of extreme urgency. Article 11 (4) provides that the Commission shall be required to inform the Council and the Member States forthwith of any decision concerning pro­ visional duties.

23 According to Article 12, where the facts as finally established by the Commission show that there is subsidization and injury caused thereby and the interests of the Community call for Community intervetion, a definitive countervailing duty is to be imposed by the Council, acting by a qualified majority on a proposal submitted by the Commission after consultation.

24 It must be noted that, according to Article 13 (1), countervailing duties, whether provisional or definitive, are to be imposed by regulation.

28 It seems clear, first, in that respect — and the point is not disputed by the Commission — that complainants must be acknowledged to have a right to bring an action where it is alleged that the Community authorities have disregarded rights which have been recognized specifically in the regulation, namely the right to lodge a complaint, the right, which is inherent in the aforementioned right, to have that complaint considered by the Commission with proper care and according to the procedure provided for, the right to receive information within the limits set by the regulation and finally, if the Commission decides not to proceed with the complaint, the right to receive information comprising at the least the explanations guaranteed by Article 9 (2) of the regulation.

29 Furthermore it must be acknowledged that, in the spirit of the principles which lie behind Articles 164 and 173 of the Treaty, complainants have the right to avail themselves, with regard both to the assessment of the facts and to the adoption of the protective measures provided for by the regulation, of a review by the Court appropriate to the nature of the powers reserved to the Community institutions on the subject.

30 If follows that complainants may not be refused the right to put before the Court any matters which would facilitate a review as to whether the Commission has observed the procedural guarantees granted to complainants by Regulation No 3017/79 and whether or not it has committed manifest errors in its assessment of the facts, has omitted to take into consideration any essential matters of such a nature as to give rise to a belief in the existence of subsidization or has based the reasons for its decision on considerations amounting to a misuse of powers. In that respect, the Court is required to exercise its normal powers of review over a discretion granted to

34 The costs should be reserved.

On those grounds ,

THE COURT ,

be way of interlocutory decision, hereby:

1. Declares the action to be admissible;

FEDIOL v COMMISSION

OPINION OF MRS ADVOCATE GENERAL ROZES DELIVERED ON 31 MAY 1983 1

Mr President, Processors' Federation (Fediol) (herein­ Members of the Court, after referred to as "the Federation"), which has its registered office in Brussels, for a declaration that a decision This action is brought under the second alleged to have been contained in a letter paragraph of Article 173 of the Treaty of the Commission of 25 May 1982 by the EEC Seed Crushers' and Oil refusing to initiate an anti-subsidy 1 — Translated from the French.