C-239/82

KAISER ALUMINIUM AND CHEMICAL CORPORATION, a corporation governed by the law of the State of Delaware (United States of America), having its office in Wilmington (Delaware), represented by Amand d'Hondt, François van der Mensbrugghe and Edmond Lebrun, and by Anthony Hooper, Barrister, of the Inner Temple, and Anthony Philip Bentley, Barrister, of Lincoln's Inn, with an address for service in Luxembourg at the Chambers of Tony Biever, applicants, ν

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

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APPLICATIONS for a declaration that Commission Regulation (EEC) N o 1976/82 of 19 July 1982 imposing a provisional anti-dumping duty on certain imports of certain chemical fertilizer originating in the United States of America and Commission Regulation (EEC) N o 2302/82 of 15 August 1982 amending that regulation are void, and applications for damages,

THE COURT

composed of: J. Mertens de Wilmars, President, T. Koopmans, K. Bahlmann and Y. Galmot (Presidents of Chambers), P. Pescatore, Lord Mackenzie Stuart, A. O'Keeffe, G. Bosco and U. Everling, Judges,

Economic Community (Official Journal Corporation (hereinafter referred to 1979, L 339, p. 1), concerning imports as "Allied"), Transcontinental Fertilizer of certain chemical fertilizer originating Company (hereinafter referred to as in the United States of America. The "Transcontinental"), and Kaiser Alu- fertilizer in question is defined under minium and Chemical Corporation Community law as urea ammonium (hereinafter referred to as "Kaiser"), all nitrate solution fertilizer, falling within having their offices in the United States subheading ex 31.02 C of the Common of America, to increase their prices to a Customs Tariff. level eliminating but not exceeding the dumping margins established.

Journal 1980, L 212, p. 43). The validity Française (Official Gazette on Com- of that provisional duty was extended for petition and Consumption — Official a period not exceeding two months Gazette of the Prices Department of the by Regulation (EEC) No 3144/80 of French Republic) No 23 of 12 December 4 December 1980 (Official Journal 1980, 1981. Decision No 81-18/DC is con- L 330, p. 1). cerned with the state of competition with

United States of America. The injury agreement which had been found to exist caused to the Community by the dumped in the fertilizer distribution sector in the imports is, according to that regulation, département of Indre. particularly serious in the case of the French fertilizer industry. In reliance on those decisions and on the information contained therein, Demufert The products exported by a United SA (hereinafter referred to as States manufacturer were exempted from "Demufert"), whose registered office is that duty on the ground that such in Brussels, and the European Fertilizer

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24 March 1982. The requests submitted imposed on Allied and Transcontinental by Demufert and the EFIA were rejected remained fixed at 6.5% whilst, in the by the Commission by letters dated 22 case of Kaiser, it was fixed at 5%. March 1982.

By application lodged at the Court II — W r i t t e n p r o c e d u r e and con­ Registry on 5 May 1982 (Case 141/82), c l u s i o n s of the p a r t i e s Demufert brought an action against the Commission primarily for a declaration that its decision not to review the regu­ lation in question was void. That case Allied, Demufert and Transcontinental was removed from the register by order lodged an application at the Court of the Court of 9 November 1983, Registry on 22 September 1982 for a following the applicant's decision to declaration that Regulations No 1976/82 discontinue the proceedings. and No 2302/82 were void and for damages. The application was registered under No 239/82.

On 16 July 1982 the Commission published a notice of a review of the Kaiser lodged a like application at the definitive anti-dumping duty on imports Court Registry on 15 October 1982 of certain chemical fertilizer originating which was registered under No 275/82. in the United States of America (Official Journal 1982, C 179, p. 4). The applicants claim in identical terms that the Court should:

Allied, Transcontinental and Kaiser sub­ sequently withdrew their undertakings, 1. Declare the applications admissible Allied and Transcontinental by letters and well-founded; of 7 June and 2 July respectively, and Kaiser by telex message of 23 July 1982. 2. Accordingly:

10 000 000 (10 million Belgian The Court invited the parties to francs), together with interest concentrate on questions of substance in thereon at the rate of 12.5% from their oral argument at the hearing. The the day on which the action was Commission was invited to reply more brought until the day on which particularly, in its oral observations, payment is made, to three questions which were com- municated to it in writing. (c) Order the Commission to pay the costs. III — Submissions and argu- m e n t s of t h e p a r t i e s d u r i n g By order of 15 December 1982 the the written procedure Commission joined Cases 239/82 and 275/82 for the purposes of the procedure and the judgment. A — Consideration of certain factual circumstances The Commission contends that the Court should : Before dealing with the questions of admissibility and of substance raised in the applications for a declaration of Dismiss the applications as inadmissible nullity and for damages, the parties set and, in any event, as unfounded; out and comment on a number of factual circumstances underlying the dispute. Order the applicant to pay the costs. According to the applicants, Regulation No 349/81, which imposes a definitive The written procedure followed the anti-dumping duty, is based essentially normal course. on the situation on the French market, which is by far the most important By letter of 17 January 1983 the Community market for nitrogen solution Commission requested the Court to fertilizer. Admittedly, the Commission decide the case in plenary session on maintains that, in assessing the injury the grounds that it raised important pleaded by the Community producers, it questions of principle concerning ad- also took account of the German market. missibility. However, it must be borne in mind that the German market accounts for only 7 to 8% of the entire Community market, By judgment of 15 June 1983 the by comparison with the French market Tribunal de Commerce [Commercial which accounts for 68 to 7 0 % of the Court] Brussels declared Demufert Community market. Moreover, in the insolvent and appointed Michel Levy Federal Republic of Germany there is Morelle, Avocat, as liquidator. By a also a restrictive agreement on the prices document lodged at the Court Registry of such fertilizer, as is clear in particular on 29 September 1983 the liquidator from the price list attached to the expressed the intention of resuming the complaint submitted by the CMC- proceedings originally instituted by the Engrais, and from the price list applied insolvent undertaking. on the market which shows that identical prices are charged and identical On hearing the views of the Advocate conditions are applied by the only three General, the Court decided to open the German producers of nitrogen fertilizer. oral procedure without any preparatory It is also appropriate to point out that inquiry. Regulation No 349/81 expressly states,

The applicants contend that, during the procedure which led to the adoption of The Commission charges the applicants Regulation N o 349/81, the Community with failing to provide evidence that the authorities were misled as regards the practices complained of were capable of true state of the French market. It is distorting the investigations conducted clear from the decisions adopted by the prior to the imposition of anti-dumping French Minister for Economic Affairs duties. The practices carried on between and Finance in the field of competition 1976 and 1978 cannot have had any and, more particularly, from Decision impact on the investigations conducted No 81-18/DC, that France's five in 1979 and 1980. As regards the period principal producers, who were the source from 1979 to 1980, it is noteworthy that of the complaint, are together re­ the French Decision No 81-19/DC is sponsible for approximately 7 0 % of concerned with phosphate fertilizer, French fertilizer production and almost whilst the Community regulations in the whole of France's production of question relate to nitrogen fertilizer. ordinary nitrogen fertilizer. Between Decision No 81-20/DC is limited as December 1976 and August 1978 the regards its geographical and temporal producers in question took concerted scope. Since it concerns a single French action regarding conditions of sale and département and applies to practices discount rates for customers. Between which ceased at the beginning of 1979 it August 1978 and May 1980, they also cannot have had any effect on the pursued a systematic policy of applying investigations conducted by the Com- the same price lists and conditions of mission. Decision No 81-18/DC is sale. In the 1978/79 and 1979/80 concerned with the fertilizer market as marketing years, the purpose and the a whole, whereas an anti-dumping effect of such concerted action was to measure was adopted only in respect of distort competition and to favour the nitrogen solution fertilizer. It is not artificial increase in the prices of certain sufficient to point to an artificial increase fertilizer. Those unlawful practices were in the prices of certain fertilizer. The proved and were penalized by the French applicants must establish that such an

According to the applicants, there is no In reply, the Commission states that, even doubt that the Commission was unaware though it was unaware of the French of the situation revealed by Decision No decisions in question when it adopted 81-18/DC. It cannot therefore as a Regulation No 349/81, it was aware matter of principle claim that the of their existence when it adopted decision has no effect. In order to assess the contested regulations since Allied, the injury allegedly caused, no reliance Demufert and Transcontinental had may be placed on the prices charged in referred to those decisions in their the middle of the marketing year without request for a review of Regulation No taking into account the discounts and 349/81. Furthermore, prior to the rebates granted at the end of the year, to adoption of that regulation, investi- which reference is made in the French gations were carried out by the decision. The Commission has not Commission at the premises of the submitted to the Court the French file French producers which enabled it to concerning Decision No 81-18/DC. It obtain specific information concerning has not even adduced any evidence to the prices charged, regard being had to show that it has examined that file. the system of discounts and rebates. Decision No 81-18/DC is concerned mainly with nitrogen fertilizer. It contains a number of findings relating to restrictive agreements on the price of ordinary nitrogen fertilizer. Those findings also apply to nitrogen solution Decision No 81-18/DC is concerned fertilizer. The Common Customs Tariff, with the fertilizer industry in general. just like the French statistics, subdivides Furthermore, it is quite possible to draw chemical fertilizers into only four cate- a distinction between nitrogen fertilizer gories: phosphatic, potassic, compound in solid form and in liquid form.

The Commission contends that Demufert Demttfert relies upon the judgment of the is an independent importer. It is not Court as regards the admissibility of its designated by name in the contested application. regulations which, as far as it is concerned, are in the nature of measures having general application within the However, the following factors must be meaning of the second paragraph of borne in mind: Article 189 of the EEC Treaty. Since their purpose is to impose an anti­ dumping duty on liquid nitrogen The contested regulations are expressly fertilizer originating in the United States, applicable to Allied. Demufert imports the regulations in question apply to ob­ products exclusively and directly from jectively determined situations and entail Allied. Although it may not be legally legal effects for categories of persons dependent on Allied, in fact it is regarded generally and in the abstract. unquestionably economically dependent That analysis is not invalidated by the on that company.

JUDGMENT OF 21. 2. 1984 — JOINED CASES 239 AND 275/82

member countries. It is not directed against certain specific undertakings, If the other applications are declared even though the pricing policy pursued admissible, what purpose would there by the exporting undertakings in ques- be in drawing a distinction between tion constituted a fundamental reason those applications and that lodged by for the introduction of that legislation. In Demufert which, as the debtor in respect the cases concerned with dumping which of the contested duties, is the main party it has so far had occasion to deal with,

The fact that certain admissibility of the application lodged by exporters are identified during the pre- the exporting undertakings in question. liminary investigation does not justify Regulations No 2182/80 and No 349/81 the conclusion that the legislation in imposed a provisional anti-dumping question is of direct and individual duty, which later became definitive, on concern to them. According to the all imports of nitrogen solution fertilizer Court, the distinction between a regu- from the United States.

In accordance exporters of the product in question. with that view, the exporter is identified, on the basis of the preliminary investigation, in the preamble to the regulation and this entitles him to contest The result of adopting a different line of the measure adopted. In one of the reasoning would be to accord pref- dumping cases, the Advocate General

referred to the hybrid nature of the regu­ of a provisional duty. The adoption of a lation in question. That view entails the measure of that kind does not produce risk of allowing parallel means of redress legal effects since only the adoption of before the national courts and the Court the final measure can give rise to such of Justice, thereby giving rise to pro­ effects. In a recent case concerned with cedural complications and to the risk of competition, the Court held that acts are divergent judicial decisions. open to review only if they arc measures definitively laying down the position of the Commission or the Council on the Admittedly, exporters cannot themselves conclusion of the relevant procedure, bring an action in the national courts. and not provisional measures. Provisional Yet a direct action seems more satis­ duties are not collected definitively. factory from the point of view of What is concerned is a provisional securing legal protection. However, to measure, of a protective nature, and it declare admissible a direct action is followed by an investigation on brought before the Court by the completion of which the Council decides exporting undertakings would be whether it is necessary to confirm the tantamount to ascribing a dual character provisional measure by retaining de- to anti-dumping measures, namely the finitively the sums paid by way of character decisions vis-à-vis under- security, takings which have been the subject of investigations and which are referred to in the regulations in question and the character of regulations in relation to all The applicants consider that the ad- other legal subjects who may be affected missibility of their applications is not by them. In a case concerned with agri- open to doubt. culture, the Court refused to coun- tenance the possibility that a measure may display a "dual character" of that The Commission wrongly centred the kind. debate on the question of the ad- missibility of applications directed against the imposition of anti-dumping As regards the difference between the duties in general, without distinguishing general rate and the specific rate of duty, between the case of a general rate of a question which is more particularly of duty and that of a specific rate of duty. concern to Kaiser since the anti-dumping duty imposed on it is lower than the general rate of duty, it is appropriate to The Commission wrongly regards the observe that it does not follow from that contested measures as basic regulations factor that the measure is of individual imposing an anti-dumping duty in concern to the undertaking in question, respect of a specific product. All the within the meaning of the second judgments upon which it relies are paragraph of Article 173 of the EEC concerned with measures of that kind. In Treaty, since the measure in question is the present case, the contested measures not deprived of its character as a regu- are specific regulations which apply lation by the possibility of establishing expressly and exclusively to the the number or the identity of the natural applicants. or legal persons to whom it applies.

Exporters are named in regulations of that kind not only because of their involvement in the preliminary in- The Commission endeavours in vain to vestigation but also because of a situation link the contested regulations to the which is peculiar to them and which basic regulation, No 349/81. The leads to the adoption of the regulation in imposition of a provisional anti-dumping question. Their position differs from that duty on parties who have withdrawn of importers who, according to the their undertakings cannot be the auto- Court, are liable to duty solely by matic consequence of, or the automatic reference to the objective criterion that legal penalty for, such withdrawal. It is they are importers of the product in clear from Article 10 (6) of Regulation question. They are concerned by No 317/79 that the imposition of a pro- reference to a subjective criterion, in the visional anti-dumping duty following the light of a specific practice, namely the withdrawal of an undertaking is subject charging of a price so low as to to the condition that the interests of the constitute dumping. Furthermore, in the Community call for the imposition of a present case, Regulation N o 349/81 duty of that kind, which entails the need exempts by name an exporter from anti- to carry out checks to determine, on the dumping duty on the ground that the basis of the information available, undertaking in question is not charged whether the requirements concerning the with practising dumping. Consequently, existence of dumping and injury within the regulation is necessarily of direct or the meaning of Article 4 of that regu- indirect concern to those who are lation are complied with. Since they are deemed to carry on practices of that distinct from the basic regulation and are kind. autonomous in relation to it, the contested measures may be vitiated by the legal defects inherent in them. The contested regulations may, at the very It is also appropriate to take account of most, be linked to Article 2 of Regu- the fact that it is impossible for the lation No 349/81 which exempts the exporters themselves to contest the applicants, who are designated by name, imposition of anti-dumping duties in the from anti-dumping duty. Since the national courts, that they may at the very contested measures are addressed to the most intervene in the proceedings applicants and were adopted by alongside importers and that, from their reference to considerations peculiar to point of view, a direct action is a better them, the applications are admissible. guarantee of legal protection.

Substance According to Article 2 (1), which is First submission concerned with the principle of the imposition of an anti-dumping duty, and The applicants claim that the Com Article 11, which is concerned more mission has infringed the EEC Treaty, particularly with the imposition of pro and in particular Article 190 thereof, visional duties, the adoption of such Regulation No 3017/79, and in measures is permitted only if the particular Articles 4, 10 (6) and 11 requirements relating to the interests of thereof, and essential procedural re the Community, to the existence of quirements, inasmuch as the contested dumping and to the existence of injury measures do not state the reasons on resulting therefrom are fulfilled. which they are based or, at the very least, do not contain an adequate The purpose of the duty to state the statement of reasons. reasons on which a measure is based is to enable the Court to exercise its power of (a) So far as the law is concerned, it review and to indicate clearly and un should be borne in mind that, in order to equivocally to those concerned the enable the Court to exercise its power of reasons on which the measure in review, it is not enough to provide the question was based.

It is necessary to verification not only of the existence of state the reasons on which the condition dumping but also of the existence of of urgency itself is based. Once the need injury — consisting either of serious for urgent action has been recognized, injury to Community production, or of the Commission must indicate the an appreciable delay in the establishment reasons which make it necessary to adopt of such production — and of the need the particularly strict measures which the for Community intervention to protect imposition of provisional duties involve. the interests of the Community.

JUDGMENT OF 21. 2. 1984 — JOINED CASES 239 AND 275/82

imports alleged to have been dumped. A provided grounds for imposing anti- mere reference to Regulation N o 349/81 dumping duties at a rate higher than that is insufficient. Moreover, the recitals in applied in 1980. In fact the Commission the preamble to that regulation are based availed itself only of the information on an investigation which was closed in provided by the complainants. It 1980, whilst the contested measures were therefore prejudged the matter, although adopted in 1982. it had no reason to treat either party more favourably than the other before undertaking any review.

ALLIED CORPORATION ν COMMISSION

at the time when the undertakings were measures were adopted did not disclose withdrawn. Since that information any new factors. largely corresponds to the information available at the time when Regulation Since the sole purpose of Regulation N o N o 349/81 was adopted, the reasons on 2302/82 was to supplement and amend which the contested regulations are Regulation N o 1976/82, there was no based could be stated by reference to need for it to contain a reference to the those on which the basic regulation is injury caused. based.

JUDGMENT OF 21. 2. 1984 — JOINED CASES 239 AND 275/82

to justify the imposition of anti-dumping No 3017/79 that the imposition of a duties at rates higher than those provisional anti-dumping duty cannot be ultimately adopted. There is no con- the automatic consequence of, or the tradiction between the adoption of prov- automatic penalty for, the withdrawal of isional measures which are necessary undertakings previously given. The following the withdrawal of under- imposition of a duty of that kind takings and the publication of a notice of presupposes that checks have been review concerning definitive duties, since carried out to ensure that the three Article 10 (6) permits such measures to requirements referred to in connection be applied immediately, irrespective of with the first submission are fulfilled. In any procedure for review. determining whether such is the case, recourse must be had to the information available. There is a contradiction in Second submission claiming from a legal point of view that only one requirement, namely that relating to the protection of the interests The applicants claim that the Com- of the Community, must be fulfilled and mission has infringed Regulation No in justifying from a factual point of view 3017/79, in particular Article 10 (6) the measures adopted by the con- thereof, and has contravened the general sideration that the fresh information principles and rules of law, especially the available supported the view that in July principles of equality, objectivity, distri- 1982 the dumping margin may have been butive justice and proper administration, higher than the average margin and the principle that every ad- established in 1980. An administrative ministrative measure must be based on measure tainted by an error of law or by grounds which are both permissible in an error of fact, or both, or based on law and relevant. irrelevant information is unlawful.

quirement relating to the existence of First fact: The decisions adopted by the dumping did not exist. French Minister for Economic Affairs and Finance which are referred to in the notice of review and more particularly Regulation No 2302/82 merely refers to Decision No 81-18/DC relating to the the possibility of dumping, inasmuch as state of competition with regard to the the applicant Kaiser in all likelihood production and marketing of fertilizer. imported fertilizer at prices so low as to That decision reveals that France's five constitute dumping after withdrawing its principal producers enjoyed and still undertaking. That argument is both enjoy a large measure of control over the unacceptable and incorrect. entire distribution system for nitrogen fertilizer on the French market. That stands in contradiction with the apparent finding in 1980 that those producers had The Commission has evidently confused lost part of their share of the market. the possibility of injury with the The French decision refers to concerted possibility of dumping without, more­ action by French producers the purpose over, carrying out an investigation into and effect of which was to distort dumping practices. competition and to bring about an arti­ ficial increase in prices. How can the Commission take as a basis the French market price recorded in the middle of A plea of urgency cannot relieve the the marketing year, when the decision Commisson of the duty to carry out the makes it clear that it was virtually most elementary preliminary checks. impossible to determine the selling price of a specific fertilizer in view of the system of discounts, rebates and Before adopting the contested measures guaranteed reductions? That state of the Commission failed to make use of affairs casts doubts on the adverse effect the information available, in particular on prices alleged to have been the information referred to in its notice established in 1980, as a result of the of review. Since the economic situation imports alleged to constitute dumping. had changed in the meantime, the adoption of the regulation in those circumstances raises the presumption that they are based on incorrect facts. In any event, the action taken by the Second fact: The substantial rise in the Commission constitutes a breach of the value of the dollar in relation to the principle of proper administration. The French franc and the German mark since Commission should have made sure that 1980 has raised the cost of imports from the information already at its disposal the United States. This is an important was updated, in the light of the fresh new fact which demonstrates that the information which it had gathered. situation had changed since the investigation conducted in 1980.

(a) Checks to ensure compliance with The Commission wrongly bases itself on the requirements for the imposition of an alleged substantial increase in imports provisional anti-dumping duties are in the first quarter of 1982. Account carried out in the light of the infor- must be taken of the results of the mation available, in view of the need for 1981/82 agricultural marketing year as a the application of provisional measures whole and, throughout that year, the forthwith and not after the com- imports in question decreased by almost mencement of a fresh investigation. 50% by comparison with the level of such imports in the 1979/80 agricultural year. (b) So far as the facts are concerned, the duties in question were imposed in the light of the results of the There is a fourth fact: the adoption on investigations conducted in 1980, the 14 June 1982 of price-freezing measures relevance of which was checked in 1982 by the French Minister for Economic by reference to the information available Affairs and Finance. The Commission at the time. failed to consider the impact of those measures which — it has been established — have the effect of distorting competition and of influencing Regulation No 1976/82 states that the the formation of prices on the French information at the Commission's disposal market. Since the prices stipulated in the does not point to a significant change in undertakings given by the applicants the dumping margin. were at the time higher than the French selling prices which were frozen, how is the Commission's finding of injury to be The Commission had at its disposal accounted for? information which it had received both from the applicants and from the C M C - Engrais. It did not by any means' give The contested regulations also con- preference to the information provided travene the principles of equality, by the latter. There were certain factors objectivity and distributive justice. which indicated that the dumping margin

Furthermore, it is unacceptable that by withdrawing its undertakings Kaiser should be in a more favourable position The price-freezing measures cannot have than that of the undertakings subject to had any effect on the dumping margin the general system established by Regu­ since that margin is determined by a lation N o 349/81. comparison between the normal value of the product and its export price, without reference to the selling price of the Community product. Since the measures As regards the new facts relied upon by in question did not enter into force until the applicants, it must be borne in mind a few weeks before the adoption of the that the Commission enjoys a broad contested regulations, they cannot have power of discretion in this area. The had any influence on the injury. applicants have failed to discharge the burden of proving that the Commission has committed a manifest error of fact. As regards the arguments concerning the alleged breach of certain general legal With regard to the French decisions, the principles, it must be borne in mind that checks carried out on the premises of the the differences between the dumping French producers in no way support the margins applied in relation to the conclusions arrived at by the applicants. applicant and those imposed on other importers are justified by the con­ sideration that the present case is concerned with producers who imported The rate of the dollar cannot have had in exceptional circumstances fertilizer any effect on the dumping margin since purchased from producers with whom the prices stipulated in the undertakings they have ties. In those circumstances were expressed in the same currency. account must be taken not of the export Moreover, this is a general problem price actually paid but of the price which has no immediate impact on the charged when the imported product was validity of an anti-dumping duty or a resold for the first time to independent fortiori on the validity of a provisional resellers, after deduction of the costs and duty. profits.

The applicants have also failed to The applicants consider that the illegality establish the existence of a causal of the contested regulations amounts to connection between the alleged fault and fault in so far as it reveals that the the damage which they claim to have Commission was guilty of negligence. suffered. The contested measures were not adopted as part of the Commission's legislative activity. They amount to IV — Oral p r o c e d u r e decisions of direct and individual concern to the applicants or, at the very least, to Allied, Transcontinental and Kaiser. At the sitting on 8 November 1983 the applicants Allied, Michel Levy Morelle and Transcontinental, represented by Mr In any event, in the present case, there is Lebrun and Mr D'Hondt, the applicant a serious breach of a superior rule of Kaiser, represented by Mr Hooper, the law. Commission of the European Com- munities, represented by Mr Gilsdorf The damage resulting from the fault and Mr Jacob, presented oral argument consists in the substantial loss of profit and answered questions put to them by sustained by the applicants as a result of the Court. the very considerable obstacles to exports in the first six months of 1982 and the harmful effect on the positions es- The applicants contended that the tablished on the Community fertilizer judgment of the Court of 4 October market. 1983 in Case 191/82 (FEDIOL [1983] ECR 2913) established that their applications were admissible. The Commission questions the ad- missibility of the application for damages in the light of the requirements of Article Enlarging on their submission that the 38 of the Rules of Procedure. The statement of reasons on which the applicants have given no particulars of contested measures were based is the alleged fault and have confined defective, the applicants maintained as themselves to contending that the regards the formal duty to state reasons, contested regulations are unlawful. that the contested decisions did not

contain any grounds relating to dumping The three companies which had given an and to an adverse effect on the interests undertaking and had not withdrawn it of the Community and, as regards the had in fact abandoned the European validity of the reasons stated, that market. imports from the United States had plummeted during the period in question The Commission, whilst maintaining its and had at present ceased altogether. objection of inadmissibility as regards the application originally submitted by Demufert, took the view that the The Commission has incorrectly applied arguments put foward in favour of and in the present case the principle that the against the admissibility of the imposition of provisional anti-dumping applications submitted by the other duties follows automatically from the undertakings were nicely balanced. In withdrawal of undertakings. any event, review of the substance of the case by the Court should be particularly limited in scope since the anti-dumping measures at issue were provisional. The notice of review published on 16 July 1982 resulted in the adoption of As regards the action taken in the light Council Regulation (EEC) N o 101/83 of of the notice of review published on 17 January 1983 imposing a definitive 16 July 1982, it was appropriate to anti-dumping duty on certain chemical distinguish between two types of fertilizer originating in the United States proceedings, one concerning the com­ of America (Official Journal 1983, L 15, panies which had withdrawn their under­ p. 1), Commission Regulation (EEC) No takings and the other concerning 290/83 of 2 February 1983 imposing a companies which had got given any provisional anti-dumping duty on undertakings. imports of urea ammonium nitrate solution fertilizer originating in the United States of America (Official The volume of United States fertilizer exports did not fluctuate between 1980 Journal 1983, L 33, p. 9) and Council and 1982 in the manner indicated by the Regulation (EEC) N o 2192/83 of 29 applicants. July 1983 accepting an undertaking given in connection with the anti-dumping review proceeding on imports of urea As regards the statement of reasons on ammonium nitrate solution fertilizer which the contested regulations were (UAN) originating in the United States based, it was appropriate to take of America and terminating the pro­ account, on the one hand, of the fact ceeding (Official Journal 1983, L 211, that the regulations were adopted as a p. 1). At present, liquid fertilizer matter of urgency and that the applicants imported from the United States was refused to cooperate in providing the covered by four different systems and Commission with information and, on that applied to the applicant under­ the other hand, of the fact that the takings was truly penal in nature. Community authorities enjoyed a very broad power of discretion of an economic and political nature as regards the concept of the interests of the As a result of successive increases in the Community and that that concept did value of the American dollar, as reflected not call for a specific statement of in the price and in the volume of imports reasons, particularly where the im­ from the United States, American prices position of a provisional duty was con­ were no longer competitive. cerned.

1 By application l o d g e d at the C o u r t Registry o n 20 September 1982, Allied C o r p o r a t i o n , a c o r p o r a t i o n governed by the law of the State of N e w Jersey (United States of America), having its office in M o r r i s t o w n (hereinafter referred to as " A l l i e d " ) , D e m u f e r t SA, a c o m p a n y governed by Belgian law, having its registered office in Brussels and n o w in liquidation (hereinafter referred to as " D e m u f e r t " ) , and T r a n s c o n t i n e n t a l Fertilizer C o m p a n y , a corporation g o v e r n e d by the law of the State of Pennsylvania (United States of America), having its office in Philadelphia (hereinafter referred to as " T r a n s c o n t i n e n t a l " ) , b r o u g h t an action u n d e r the second p a r a g r a p h of Article 173 of the E E C T r e a t y in which they request the C o u r t to declare void Commission Regulation ( E E C ) N o 1 9 7 6 / 8 2 of 19 July 1982 imposing a provisional a n t i - d u m p i n g d u t y o n certain imports of certain chemical fertilizer originating in the U n i t e d States of America (Official J o u r n a l 1982, L 214, p . 7) and Commission Regulation ( E E C ) N o 2 3 0 2 / 8 2 of 15 August 1982 (Official J o u r n a l 1982, L 246, p. 5) amending Regulation N o 1 9 7 6 / 8 2 a n d adopted p u r s u a n t to Council Regulation (EEC) N o 3 0 1 7 / 7 9 of 20 D e c e m b e r 1979 o n protection against d u m p e d or subsidized imports from countries n o t members of the E u r o p e a n E c o n o m i c C o m m u n i t y (Official J o u r n a l 1979, L 339, p . 1), and seek an o r d e r for damages against the Commission.

4 By Decision N o 81/35/EEC of 9 February 1981 (Official Journal 1981, L 39, p. 35), the Commission accepted the undertakings given in connection with the anti-dumping proceeding by the applicants Allied, Transcontinental and Kaiser, to increase their prices to a level eliminating the dumping margins which had been established at 6.5% in respect of the firt two applicants and at 5 % in respect of Kaiser. By Regulation (EEC) N o 349/81 of the same date (Official Journal 1981, L 39, p. 4), the Council imposed a definitive anti-dumping duty on urea ammonium nitrate solution fertilizer falling within subheading ex 31.02 C of the Common Customs Tariff and corresponding to Nimexe code ex 31.02-90, originating in the United States of America and fixed the rate of duty at 6.5% on the basis of the customs value. The 23rd recital in the preamble to that regulation states that Allied, Kaiser and Transcontinental have voluntarily undertaken to increase their prices to a level eliminating the dumping margins found and that the Commission has accepted those undertakings. Accordingly, Article 2 of that regulation exempts from anti-dumping duty fertilizer exported by certain United States undertakings, including Allied, Kaiser und Transcontinental.

5 It is clear from the documents before the Court that the Commission, in the light of the applications for review submitted to it, in the first place by a

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"major United States exporter" and by Demufert and subsequently by the organization representing the European fertilizer industry, published on 16 July 1982 a notice of a review of the definitive anti-dumping duty on imports of certain chemical fertilizer originating in the United States of America (Official Journal 1982, C 179, p. 4).

7 The Commission raises an objection of inadmissibility against the application lodged by Demufert. The Commission contends that Demufert, in its capacity as an independent importer, has no locus standi, under the provisions of the second paragraph of Article 173 of the EEC Treaty, to apply for a declaration that two regulations whose validity is contested are void. According to the Commission, the anti-dumping duty imposed by the regu- lations at issue — which merely supplement Regulation N o 349/81 imposing a definitive anti-dumping duty — is of concern to Demufert only in its objective capacity as an importer. As such, Demufert does not therefore according to the consistent case-law of the Court (see, most recently, the judgment of 6 October 1982 in Case 307/81, Alusuisse Italia, [1982] ECR 3463, paragraph 9 of the decision), meet the requirement, stipulated by the second paragraph of Article 173, that the measures in question should be of direct and individual concern to it.

8 As far as the other applicants are concerned, the Commission merely expresses doubts as regards the admissibility of their applications. In the first place, it concedes that there is a very specific reference to the applicants in question both in Regulation N o 349/81 and in the contested regulations,

ALLIED CORPORATION ν COMMISSION

9 During the oral procedure, the Commission, after indicating once again its opposition to the admissibility of Demufert's application, informed the Court that, on balance, it was in favour of the admissibility of direct actions brought by undertakings from non-member countries and, in any event, of those brought by the applicant undertakings on the ground that they were expressly mentioned in the statement of the reasons for, and in the provisions of, the contested measures. The Commission considers that such an approach would have a beneficial effect on the interests of Community undertakings in non-member countries in the event of the initiation of anti-dumping proceedings against them, particularly in the United States of America where the means of redress are to a large extent available to undertakings from other countries. The Commission takes the view that, in the interests of reciprocity, it is appropriate to provide similar guarantees under the judicial system of the Community.

10 The questions of admissibility raised by the Commission must be resolved in the light of the system established by Regulation N o 3017/79 and, more particularly, of the nature of the anti-dumping measures provided for by that regulation, regard being had to the provisions of the second paragraph of Article 173 of the EEC Treaty.

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1 1 Article 13 (1) of Regulation N o 3017/79 provides that "anti-dumping or countervailing duties, whether provisional or definitive, shall be imposed by regulation". Although it is true that, in the light of the criteria set out in the second paragraph of Article 173, such measures are, in fact, as regards their nature and their scope, of a legislative character, inasmuch as they apply to all the traders concerned, taken as a whole, the provisions may none the less be of direct and individual concern to those producers and exporters who are charged with practising dumping. It is clear from Article 2 of Regulation N o 3017/79 that anti-dumping duties may be imposed only on the basis of the findings resulting from investigations concerning the production prices and export prices of undertakings which have been individually identified.

15 However, the position is different in the case of Demufert, since that applicant is an importer established in one of the Member States and is not referred to in any of the measures which are contested in the applications before the Court. As such, therefore, Demufert is concerned by the effects of the contested regulations only in so far as it comes objectively within the scope of the provisions of those regulations. The uncontested fact that Demufert acted as importing agent for Allied does not alter that conclusion. In contrast to the situation considered by the Court in its judgment of 29 March 1979 in Case 113/77 (NTN Toyo Bearing Company Ltd and Others, [1979] ECR 1185, paragraph 9 of the decision), in the present case the existence of dumping has been established, as is stated in the 10th recital in the preamble to Regulation N o 349/81, by reference to the export prices of American producers and not by reference to the retail price charged by European importers, with the result that the findings relating to the existence of dumping are not of direct concern to Demufert, whereas they are of direct concern to the producers and exporters. It must be pointed out that, in so far as it was compelled to pay anti-dumping duties, it is open to the applicant to bring an action in the competent national court in the context of which it can put forward its argument against the validity of the regulations at issue.

16 It follows that the application submitted by Demufert must be declared inadmissible.

Substance

17 The applicants put forward two groups of submissions in order to contest the validity of the regulations which subjected the importation of their products to anti-dumping duties. In the first place, they consider that the statements of the reasons on which the contested regulations were based are deficient in various respects. Secondly, they consider that the Commission has failed to take account of the fact that after anti-dumping duties were imposed by Regulation N o 349/81 the situation changed in various respects and the Commission was therefore wrong in accepting that dumping was still being practised.

20 That provision must be interpreted in the light of the 15th recital in the preamble to that regulation, according to which "it is necessary that the Community's decision-making process permit rapid and efficient action, in particular through measures taken by the Commission, as for instance the imposition of provisional duties".

21 It follows from the aforementioned provision that where an undertaking has been withdrawn the Commission must promptly apply provisional measures if it considers that the interests of the Community call for such action. By specifying that such measures are to be introduced by the Commission "using the information available", the regulation makes it clear that the Commission is not required to conduct a further investigation but must normally take a decision on the basis of the information which was at its disposal when the undertakings which have been withdrawn in the meantime were given. Since the very fact that an undertaking is given warrants the assumption that dumping actually exists, the Commission cannot be required to conduct a further investigation when such an undertaking is withdrawn. In

ALLIED CORPORATION ν COMMISSION

such circumstances, it is quite normal that the Commission should extend to the undertakings in question the provisions which would have been applicable to them if no undertaking had been given.

22 If a trader, when withdrawing his undertaking considers that there are grounds justifying a review of his position and a grant of exemption from any anti-dumping duty in spite of the withdrawal of such undertaking, it is incumbent on him to submit to the Commission appropriate evidence in support of his view.

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regard to the production and marketing of fertilizer (Bulletin Officiel de la Concurrence et de la Consommation [Officiai Gazette on Competition and Consumption], No 23, 12 December 1981) which revealed the existence at the material time of a restrictive agreement on prices on the French market in fertilizer. Furthermore, the applicant Kaiser refers to the price-freezing measures adopted on 14 June 1982 by the French Government. The applicants consider that in those circumstances the selling prices of fertilizer on the French market were distorted with the result that it is no longer possible to establish the existence of dumping;

(b) the consistent increase in the value of the dollar on the foreign exchange market resulting in a continuing increase in the cost of imports from the United States of America on the European market;

(c) the decline at the material time of imports of liquid fertilizer on the European market. Kaiser, in particular, states that its exports to the Community have ceased altogether.

29 As regards the increase in the value of the dollar and the decline in imports, the Commission draws attention to the fact that, although it is true the volume of imports of nitrogen solution fertilizer originating in the United States into the Community fell in 1981/82, imports of that product increased substantially in the first quarter of 1982, in spite of the increase in the value of the dollar. It follows that this factor has not had the effect of compensating for the injury caused to European producers.

30 The arguments put forward by the applicants are not of such a nature as to constitute proof that the Commission committed a number of manifest errors in its assessment of the question whether injury was caused to the European fertilizer industry as a result of the practice of dumping, established by reference to the criteria laid down by Article 2 of Regulation N o 3017/79. Consideration of the facts put forward by the applicants therefore warrants the conclusion that the Commission could properly take the view that, after the applicants had withdrawn their undertakings, the interests of the Community called for the adoption of provisional measures forthwith, in order to prevent injury to Community producers.

31 Consequently those submissions must also be rejected.

32 It is clear from all the foregoing considerations that the applications of Allied, Transcontinental and Kaiser must be dismissed as unfounded. Consequently, the applications for damages, which are linked to the applications for a declaration of nullity, are devoid of purpose and must also be dismissed.

1. Dismisses the application of Michel Levy Morelle, Avocat, acting as liquidator of Demufert SA, as inadmissible and the applications of Allied Corporation, Transcontinental Fertilizer Company and Kaiser Aluminium and Chemical Corporation as unfounded.

2. Orders the applicants to bear the costs.

Mertens de Wilmars Koopmans Bahlmann Galmot

Pescatore Mackenzie Stuart O'Keeffe Bosco Everling

Delivered in open court in Luxembourg on 21 February 1984.

For the Registrar H. A. Rühi J. Mertens de "Wilmars Principal Administrator President