C-53/83

applicants, v

Council of the European Communities, represented by its Legal Adviser, Gijs Peeters, acting as Agent, assisted by P. Didier, of the Brussels Bar, with an address for service in Luxembourg at the office of H. J. Pabbruwe, Director of the Legal Department of the European Investment Bank, 100 Boulevard Konrad-Adenauer, Kirchberg,

defendant, supported by the

Commission of the European Communities, represented by its Legal Adviser, J. Temple-Lang, and D. Jacob, a member of its Legal Department, acting as Agents, with an address for service in Luxembourg at the office of Manfred Beschel, a member of its Legal Department, Jean Monnet Building, Kirchberg,

intervener, * Language of the Case: French.

ALLIED CORPORATION v COUNCIL

Facts and Issues

The facts of the case, the course of the may be reviewed and how the review is to procedure and the conclusions, submissions be conducted. and arguments of the parties may be summarized as follows: Having received a complaint from the Comité Marché Commun de l'Industrie des I — Summary of the facts Engrais Azotés et Phosphatés (CMC- Engrais) on behalf of the Community By Regulation No 3017/79 of 20 December fertilizer industry referring to dumping 1979 (Official Journal L 339, p. 1) the practices concerning imports of certain Council established common rules for chemical fertilizer originating in the United protection against dumped or subsidized States of America, the Commission imports from countries not members of announced, in a notice of 26 February 1980 the European Economic Community. In (Official Journal C 47, p. 2), the initiation particular the regulation lays down rules for of a proceeding in accordance with Article 7 ascertaining whether dumping has taken of Council Regulation No 3017/79 to place (Article 2), rules on the initiation of a investigate imports of urea ammonium proceeding and subsequent investigation nitrate solution fertilizer, classified under (Article 7), rules regarding undertakings subheading ex 31.02 C of the Common (Article 10), in particular (in paragraph (6)) Customs Tariff, originating in the United the measures to be taken where an under­ States of America. taking is withdrawn and (in Article 14) the By Regulation No 2182/80 of 14 August circumstances in which the measures taken 1980 (Official Journal L 212, p. 43) the

Commission imposed a provisional anti­ On 16 July 1982 the Commission dumping duty, and its validity was extended announced the re-opening of the proceeding by Regulation No 3144/80 of 4 December in accordance with Articles 7, 10 (6) and 14 1980 (Official Journal L 330, p. 1). By of Regulation No 3017/79. The notice Regulation No 349/81 of 9 February 1981 refers to the requests for review submitted (Official Journal L 39, p. 4) the Council by the Community industry, which alleged then imposed a definitive anti-dumping duty that dumping was again being practised, and of 6.5% on the products in question. By by Demufert and Allied. Decision No 81/35/EEC of 19 February 1981 (Official Journal L 39, p. 35) the Commission accepted the undertakings given by the American exporters Allied and By Regulation No 1976/82 of 19 July 1982 Kaiser, producers, and Transcontinental, a (Official Journal L 214, p. 7) the broker, to increase their prices to a level Commission imposed a provisional anti­ sufficient to eliminate the dumping margins dumping duty of 6.5% on products without exceeding them. Article 2 of Regu­ exported by Allied and Transcontinental. lation No 349/81 therefore exempts the exports of those three companies from the ariti-dumping duty. The undertakings provide for the regular adjustment of the prices according to an index of the general After Kaiser revoked its undertakings on rate of inflation in the United States. 23 July 1982, the Commission adopted Regulation No 2302/82 (Official Journal L 246, p. 5) amending Regulation No 1976/82 and imposing a provisional duty of 5% on Kaiser's products. In reliance on certain decisions of the French Minister for Economic Affairs and Finance imposing penalties on a number of French producers for practices restricting competition (Bulletin Officiel de la Regulation No 1976/82, as amended by Concurrence et de la Consommation — Regulation No 2302/82, was extended for Bulletin Officiel des Services des Prix de la two months by Council Regulation No République Française [Official Gazette on 3044/82 of 15 November 1982 (Official Competition and Consumption — Official Journal L 322, p. 4). Gazette of the Prices Department of the French Republic] No 23 of 12 December 1981), Demufert, an importer, whose registered office is in Brussels, the European Actions for the annulment of Regulations Fertilizer Import Association (EFIA) and Nos 1976/82 and 2302/82 were brought on subsequently Allied requested the Com­ 22 September 1982 by Allied, Demufert and mission in February and March 1982 to Transcontinental VCase 239/82) and on review Regulation No 349/81 and its 15 October 1982 by Kaiser (Case 275/82). decision to accept the undertakings.

duty of 12.01% on those of Trans­ By order of 21 September 1983 the Court continental. The amounts deposited as granted the Commission of the European security for the provisional duty in Communities leave to intervene in support accordance with Regulation No 1976/82 of the submissions of the Council, the were definitively collected at a rate of 6.5% defendant. for Allied and Transcontinental and at a rate of 5% for Kaiser. The applicants, Allied, Transcontinental and Kaiser, claim that the Court should: By judgment of 21 February 1984 (in Joined Cases 239 and 275/82, [1984] ECR 1005) (1) Declare the application admissible and the Court dismissed as inadmissible in well-founded; Demufert's case and as unfounded in the case of Allied, Transcontinental and Kaiser the actions brought for the annulment of (2) Consequently, declare void Council the provisional duties. Regulation No 101/83 of 17 January 1983 imposing a definitive anti-dumping duty on chemical fertilizer originating in The investigation was continued with regard the United States of America; to the other exporters and in particular with regard to Agrico, on whose products a pro­ visional duty of 4.14% was imposed by (3) Order the defendant to pay the costs. Commission Regulation No 290/83 of 2 February 1983 (Official Journal L 33, p. 9); The Council, the defendant, contends that however, upon that company's undertaking the Court should: to increase the prices of its exports to the Community, the proceeding was terminated by Council Regulation No 2193/83 of 29 (1) Dismiss the application as unfounded; July 1983 (Official Journal L 211, p. 1). (2) Order the applicants to pay the costs. II — Written procedure and conclusions of the parties The Commission, the intervener, submits that the Court should: On 31 March 1983 Allied, Demufert, Transcontinental and Kaiser lodged a joint (1) Dismiss the application as unfounded; application for the annulment of Regulation No 101/83. (2) Order the applicants to pay the costs of its intervention. By judgment of 15 June 1983, the Tribunal de commerce [Commercial Court], Brussels, The written procedure followed the normal declared Demufert insolvent and appointed course. Michel Leyy-Morelle, Avocat at the Brussels Bar, as liquidator. After declaring in a document lodged at the Court Registry on After hearing the report of the Judge- 29 September 1983 that he was resuming Rapporteur and the views of the Advocate the proceedings originally instituted by the General, the Court decided to open the oral insolvent undertaking, the liquidator procedure without any preparatory inquiry. informed the Court by a document lodged at the Court Registry on 17 September 1984 However, the Court invited the parties to that he was withdrawing from the reply in writing to a number of questions, proceedings. which they did within the time allowed.

III — Submissions and arguments of the as regards the operative event, namely the parties alleged dumping practices and the withdrawal of the undertakings, and the measure enacted, namely, the imposition of A. Admissibility a specific duty higher than the general rate. The imposition of a duty which was at first provisional and then definitive cannot be regarded as the automatic consequence of Without raising a formal objection the revoking the undertakings given. Further­ Council expresses doubts as to the more, the provision to which the measure admissibility of the action. The sole effect of may possibly be linked is not Article 1 of the contested regulation is to re-impose the parent regulation but Article 2, on the applicants the general scheme exempting certain named companies and established by Regulation No.349/81. The therefore having the character of a decision. preliminary investigation is simply a An exporter identified in that manner procedure in the adoption of the regulation cannot be denied a right of action on the and does not identify the exporters ground that an importer subject to the individually to a sufficient extent, unless the general duty has no such means of redress. finding that dumping has taken place is viewed as the basis for the imposition of a penalty on the undertakings concerned. Neither the fact that they are referred to in the regulation nor the fact that a specific B. Substance rate is applied to them entitles the applicants to assert that they are directly and individually concerned. Bringing an action directly before the Court of Justice has In support of their application the applicants certain advantages from the point of view of make six submissions alleging breach of the legal protection but it would have the EEC Treaty, in particular Articles 113 and unusual result of making available a second 190, breach of Regulation No 3017/79, in means of redress parallel to the proceedings particular Articles 2, 7, 10 and 14, failure to which may be instituted before the national observe essential procedural requirements court. The Court has never accepted that a and breach of general principles and rules of measure may have the dual character of a law. The Council and the Commission decision with regard to the undertakings consider all those submissions to be expressly referred to and of a regulation unfounded. with regard to the other persons concerned. In that respect the Council repeats the arguments put forward by the Commission and drawn up jointly by the two institutions (judgment of 21 February 1984 in Joined First submission Cases 239 and 275/82 [1984] ECR 1005, Facts and Issues at p. 1014, 'Admissibility of the other applications'). The applicants complain that they were not informed, in accordance with Article 7 (4) According to the applicants, their action is (b) of Regulation No 3017/79, of the main directed against a specific measure, facts and considerations on the basis of separable from and independent of the which it was intended to recommend to the parent regulation, which, although adopted Council the imposition of definitive duties in the form of a regulation, concerns them or the definitive collection of amounts directly, individually and exclusively, both secured by means of a provisional duty.

The Commission merely indicated that the intended to recommend definitive measures normal value was equal to the indexed and is meant to inform the persons undertaking price, without giving any concerned of the Commission's preliminary reasons to justify the choice of that criterion conclusions in order to enable them to make rather than those laid down in Article 2 B of additional observations. Allied did not Regulation No 3017/79. It gave no details provide further information to the of the exports allegedly carried out by Commission, and Kaiser did not dispute the Kaiser in breach of its undertakings. No exports in question. data was given on the existence of injury or the jeopardizing of Community interests. The latter question is not entirely beyond judicial review. Since Community authorities have no power when conducting an investigation to require the production of information, the principles of the rights of the defence applicable in competition matters cannot be The requirement of a request for infor­ transposed as such to the field of anti­ mation, laid down in Article 7 (4) (b) and dumping law. (c), does not apply where the Commission knows the persons concerned and does not free the Commission from its obligation to observe the rights of the defence, recognized by the Court. Even if the infor­ The Commission refers to the background mation comes mainly from the exporter, of Article 7 (4), which was inserted in order he must be allowed to question the to safeguard the rights of the defence in Commission's interpretation of it. anti-dumping proceedings. Having regard to the particular requirements of those protective measures, information can only be provided in reply to a request, the submission of which is subject to precise According to the Council, two of the three rules and time-limits. applicants failed to request information from the Commission as required by Article 7. Allied was informed of the essential factors taken into account and in particular A special statement of reasons on the of the method of determining the normal question of the interests of the Community value, as indeed were the other applicants; is essentially required where it is decided the Commission is not required to state its not to apply an appropriate duty in spite of reasons for the choice of that method rather the existence of dumping and of injury and than another. It explained that it had not is intended to safeguard the complainant's altered its views with regard to the existence rights of defence. of injury. The information requested cannot relate to the question of the interests of the Community; that question involves a very wide discretion on the part of the competent institutions and is hardly capable of being Second submission subject to judicial review. The provision of information is nothing more than a stage in the administrative proceeding and must not be confused with the stating of grounds on The applicants complain that the Council which a regulation is based; the information adopted the contested regulation while the supplied concerns the basis on which it is re-investigation into the other exports orig-

The imposition of definitive duties, fixed in an entirely arbitrary fashion, before the review of the general scheme was over amounted to discriminatory treatment of the The Commission points out that there were applicants. During the investigation in 1982 two re-investigations, one based on Articles the normal value of only the applicants' 14 and 7 and the other on Article 10 (6), products was established on the basis of connected only by the fact that the information obtained in 1980. Since they revocation of the undertakings coincided had previously been exempted, the ap­ with the request for a review. plicants should have been subjected, upon ' the expiry of the validity of the provisional duties and pending a general review, to the general rules of Regulation No 349/81 and not to special rules applying only to them. Since the Commission had completed its investigation on the question of injury and, in view of the lack of cooperation from Allied and Kaiser, had determined the The Council states that in view of the period dumping margin by using a method which of validity of the provisional duties and the was adapted but correct, there was no fact that dumping was still going on it was reason to prolong the investigation. The advisable to adopt the contested regulation information obtained from the re­ without waiting until the general re­ investigation based on Article 14 regarding investigation had been completed. other producers, in particular Agrico, could

ALLIED CORPORATION v COUNCIL

JUDGMENT OF 23. 5. 1985 — CASE 53/83

the applicants had not indicated that the American market were not available, indexation was a major problem for them, since the applicants had refused to causing them to revoke their undertakings, cooperate in any way, and inasmuch as sales nor asked for them to be renegotiated, of similar products did not permit any valid which the undertakings expressly allowed comparison because they did not take them to do. sufficient account of production costs, the Commission was entitled to calculate the normal value on the basis of the indexed prices agreed to in the undertakings, which Having regard to the diversity of the factors were freely entered into. to be taken into account in assessing the interests of the Community, the Commis­ sion cannot be required to undertake an investigation ex officio. The regulation indicates the facts and considerations on which the measures adopted were based and even without express references it is possible to determine Fourth submission which provisions were applied. The extent to which reasons are given depends on the nature of the measure and the context in which it is adopted. Since the choice of the The applicants contend that the Council method of calculation was determined by gave insufficient reasons for adopting the the applicants' refusal to cooperate they method used to determine the normal value, cannot claim that they do not know the which was based on the indexed prices reasons. which the applicants undertook to observe.

ALLIED CORPORATION v COUNCIL

there are reasonable grounds to suspect that bearing no relation to the economics of the those prices do not cover production costs product's production. (which the Commission failed to explain), Article 2 B (4) allows reference to be made to other sales on the domestic market of the country of origin or to export sales to third countries, to a constructed value or to adjusted prices. Kaiser's undertaking price was abnormally higher than that of Transcontinental, a broker. There was also no justification for indexing the undertakings of certain exporters without modifying the rate of duty under the general rules and for calcu­ lating the prices in the middle of the season. Because the indexation was applied to a The facts available referred to in Article 7 larger volume of exports Allied's normal (7) (b) must relate to the criteria laid down value became artificially higher in relation in Article 2. The giving of an undertaking to that of Transcontinental and Kaiser. does not amount to an admission of Although Regulation No 1976/82 shows dumping and the price agreed to in an that there was no significant change in the undertaking is not an 'available fact'. dumping margin, the duties finally imposed on the applicants were substantially increased. Kaiser did not act in breach of its undertaking since the indirect exports were covered by Transcontinental's undertaking.

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regarding sales to third countries was not to undertake the difficult calculation of the available. In the absence of cooperation normal value on the basis of a constructed from the applicants it was impossible to value. The undertaking price has been establish a constructed value or to determine found to be a reliable and the most suitable prices adjusted to production costs. datum for determining the normal value. The complaint that the price undertakings were automatically regarded as reflecting the normal value and that the right to withdraw an undertaking was questioned was entirely unfounded. The undertaking price, which was an available fact within the meaning of Article 7 (7) (b), was based on the normal value and was linked to the criteria laid down in Article 2; in their undertakings the applicants had agreed to charge prices It is not impossible that Transcontinental, a which eliminated, but did not exceed, the broker, sells at prices lower than those of dumping margins. The applicants freely Kaiser, a producer, so that Kaiser's normal accepted the indexation formula, for which value and undertaking price are higher, they themselves chose the basis, and have in spite of a lower dumping margin. not shown that it has no relation to actual Transcontinental informed the Commission changes in prices. To regard the list of that Kaiser had forbidden it to divulge sale criteria in Article 2 as exhaustive· when it prices. The acceptance of an undertaking by proves impossible to apply those» criteria a broker does not relieve the producer of would amount to granting immunity to his obligation not to export indirectly at exporters practising dumping since the dumping prices. Community authorities have no coercive powers.

The difference between the duties applied It is merely asserted that injury was caused. to Allied on the one hand and to The reference to the total volume of imports Transcontinental and Kaiser on the other from the United States in 1982 is not and the discrimination between different significant. During the 1981/82 season importers who buy products fob from the those imports decreased by 50 % in relation United States bear no relation to economic to 1979/80, while imports from the reality. Netherlands increased by 800%. That increase is accounted for by the com­ petitiveness of the Netherlands industry, rather than any alleged sales at a loss. The difference between the Netherlands and American export prices is made up by On the question of the dumping customs duties and various charges borne by requirement, the Council points out that the American exporters. Even if sales at a Kaiser indirectly exported fertilizer in loss took place, it is not to be ruled out that breach of its undertakings at a price lower this was part of a strategy for conquering than the normal value, that is to say, the the market. The Council failed to take into indexed price agreed to in its undertaking. consideration the effects of the price freeze In the absence of other information Kaiser's in France, the restrictive practices of the real export price was determined by French industry and the anti-dumping duties subtracting a profit margin of 5 % from imposed in 1980. the price charged by Transcontinental. In Transcontinental's case, dumping may be inferred from the comparison of the export price and the normal value. Since it exported only Kaiser products, that value was determined on the basis of the value The interests of the Community should be fixed for Kaiser, taking into account a profit interpreted as those of the Community as a margin of 5%. whole and not as the particular interest of certain producers. The Community legislature did not examine the interests of consumers; it failed to take into account the interests of importers and of ports, the cost In the Council's view, the injury caused to of export refunds and the revenue from Community production is established. After import duties. The long-term interests of falling in 1981/82 following the imposition consumers in the maintenance of the of anti-dumping duties, exports from the Community industry are a valid con­ United States increased substantially in sideration in any dumping situation and 1982. Kaiser and Transcontinental started render the criterion of the interests of the dumping substantial quantities before

revoking their undertaking and Allied normal value for Kaiser's and Trans- started dumping afterwards. Exports from continental's products is justified by their the Netherlands, which did not increase as failure to cooperate. much as was asserted, were carried out at a considerable loss. An average difference of 9% was found between Netherlands export prices and American prices, taking into account customs duty at 8%. The restrictive The exercise of the discretion to assess practices found in France related to the interests of the Community covers different products and a different period. important external aspects and is even less The imposition of an anti-dumping duty is susceptible to judicial review than a justified even if the injury is not entirely due discretion exercised where only internal to the imports in question. elements are involved. The phrase 'long- term interests of consumers' makes it plain that all the interests and risks in question must be considered. The regulation takes An analysis of the interests of the into acount the interests of all producers, Community involves a wide discretion in not only the French producers, whose assessing political and economic circum­ market share in fact constitutes a major stances and the weighing-up of various proportion of Community production. factors internal and external to the Community. The interests of consumers and, in particular, their long-term interests were taken into consideration; the interests of the other categories of persons concerned IV — Replies to questions put by the Court did not conflict with the imposition of the duties. Given such a discretion, the Court must limit its review to determining whether a manifest error or a misuse of power has been committed. The Council was asked to state whether in view of the Court's judgment of 21 February 1984 in Joined Cases 239 and 275/82 it still maintained its objection of inadmissibility. It replied that it had doubts The difference between the situation of about the admissibility of the action but had Demufert, whose prices were examined only refrained from formally raising an objection with regard to the requirement of injury, of inadmissibility. and that of Transcontinental, whose prices were considered in order to determine the dumping margin, explains the difference in the rates applied. The Council and the Commission were asked to explain the scope, variations in and the precise significance of the index referred The Commission shares the Council's views to in the undertakings given by the on the existence of dumping and injury. The applicants as the criterion for determining prohibition of indirect exports is intended to the updated normal value. They informed prevent an exporter who has entered into an the Court that the normal value was undertaking to observe a high price from brought up to date on the basis of the exporting his products through another implicit price deflator of gross national person at the lower price agreed to by that product, which is a general index of person. The method of calculating the inflation used in the United States and

Asked what significance is attributed, in calculating the updated normal value, to the For all those reasons the Commission based price of natural gas and price-freezing the normal values on the indices in the measures, the applicants stated that the price undertakings. of natural gas and the effect on it of possible price-freezing measures were to be considered very important, if not decisive, as the Council had in fact admitted. The Community institutions could not have failed to be aware of it and should have Since the applicants disputed that the under­ examined that aspect, which was not takings they had given were relevant to the reflected in the variations in the index used. establishment of the normal value, they were asked to indicate the criteria which could and should have been used in determining that value. They pointed out that the 'available facts' mentioned in Article 7 (7) (b) of Regulation No 3017/79 must concern one of the points of reference listed in Article 2 (3) and (4) of the regu­ The applicant Allied had clearly shown that, lation. Next, a distinction must be drawn as far as it was concerned, variations in the between the base price of each undertaking purchase price of natural gas unaffected and the indexation formula. The base prices by any price-freezing measures were in the undertakings are indisputably

JUDGMENT OF 23. 5. 1985 — CASE 53/83

Since they did not attempt to find out the real prices, the Commission and the Council should simply have referred to the base V — Oral procedure prices contained in the undertakings as representing the normal value, without applying the indexation formula. That course would have come closer to economic reality, since the prices generally charged on the American market fluctuated between the At the sitting on 2 October 1984 the second quarter of 1980 and the third applicants Allied and Transcontinental, quarter of 1982 without showing any steady represented by Edmond Lebrun, the upward trend. applicant Kaiser, represented by Anthony Hooper, the Council, represented by Mr Didier, and the Commission, represented by Daniel Jacob, presented oral argument. With the Court's leave Mr Hooper submitted a table showing the calculations made by the Commission in determining the At the Court's request, the Council and the dumping margin. Commission provided it with :

The Advocate General delivered his (i) a note of the hearing held on 14 Opinion at the sitting on 21 November October 1982; 1984.

ALLIED CORPORATION v COUNCIL

Decision

1 By application lodged at the Court Registry on 31 March 1983 the applicants brought an action under the second paragraph of Article 173 of the EEC Treaty for a declaration that Council Regulation No 101/83 of 17 January 1983 imposing a definitive anti-dumping duty on certain chemical fertilizer originating in the United States of America (Official Journal 1983, L 15, p. 1, and L 82, p. 27) is void.

A — Admissibility

3 According to the applicants, their action is directed against a specific measure, separate from and independent of the basic regulation, which, although adopted in the form of a regulation, concerns them directly, individually and exclusively both as regards the operative event, namely the alleged dumping practices and the revocation of the undertakings, and the measure enacted, namely the imposition of a specific duty higher than the general rate. The imposition of a duty, at first provisional and then definitive, cannot be regarded as the automatic consequence of the revocation of the undertakings given. Furthermore, the provision to which the measure may possibly be linked is not Article 1 of the basic regulation but Article 2 exempting certain named companies and therefore having the character of a decision. An exporter identified in that manner cannot be denied a right of action on the ground that an importer subject to the general duty has no such means of redress.

JUDGMENT OF 23. 5. 1985 — CASE 53/83

4 In its judgment of 21 February 1984 in Joined Cases 239 and 275/82, Allied Cor- poration and Others v Commission [1984] ECR 1005) the Court has already held that measures imposing anti-dumping duties are liable to be of direct and individual concern to those producers and exporters who are able to establish that they were identified in the measures adopted by the Commission or the Council or were concerned by the preliminary investigations.

5 Since the three applicants are expressly referred to in the contested regulation, it follows that their application is admissible.

ALLIED CORPORATION v COUNCIL

10 The applicants also challenge the Commission's and Council's use of the prices contained in the revoked undertakings as a criterion for establishing the normal value. They claim that the adjustment formula contained in the undertakings, which referred to a price index published by the federal government of the United States, bears no relation to real increases in production costs, which was in fact one of the reasons for their revocation of the undertakings. The reaction of the Community authorities in taking the undertaking price as the basis for calculating the normal value renders the possibility of revoking the undertaking meaningless in practice, particularly when the reason for the revocation was the fact that the undertaking price was no longer realistic.

11 The Council points out that since the applicants did not cooperate it was impossible to establish the normal value otherwise than on the basis of the revoked undertakings. The undertaking price, which is an available fact within the meaning of Article 7 (7) (b), is based on the normal value and is related to the criteria laid down in Article 2: the undertaking given was to charge a price eliminating the dumping margins without exceeding them. The applicants freely accepted the indexation formula for which they themselves chose the parameter.

13 This submission of the applicants must be rejected. If a firm does not cooperate in an anti-dumping investigation carried out by the Commission and the information available does not enable it to establish the normal value on one of the bases mentioned in Article 2 of Regulation No 3017/79, the Commission is entitled to take as a basis the prices which the firm undertakes to observe, which may be considered to be closest to economic reality, unless the Commission possesses information indicating that those prices no longer correspond to economic reality. In recalculating the normal value it may also use the general price index referred to for adjusting the prices agreed to in the undertaking if there is a reasonable relation between the index and the firm's costs. Even if the applicants are correct in stating that the application of the index in question to the reference period used by the Commission gives results which do not reflect the increases in their costs, the Commission has shown that the alternatives which they proposed produced results even more unfavourable to them. The applicants have not therefore been able to substantiate their complaint.

Injury

1 4 The applicants also contest the Commission's finding that the Community fertilizer industry suffered injury as a result of dumping by the applicants.

15 They argue in particular that the retail prices of their products on the most important market in the Community, the French market, were higher than those of Netherlands producers and that there could therefore be no question of injury. Imports from the United States during the 1981/1982 season decreased by 50% in relation to 1979/1980 while imports from the Netherlands increased by 800%. The Council failed to take into account the effects of the price freeze in France, the anti-competitive practices of the French industry and the anti-dumping duties imposed in 1980. In any case, even if there was injury, a lower rate of duty would have been sufficient to eliminate it.

19 In the preamble to Regulation No 101/83, the Council deals in detail with the question whether the injury was caused by imports from the United States or by sales on the French market by producers established in other Member States. It does not however discuss the question of the amount of duties necessary in order to remove the injury; its only reference in that connection is to the Commission's view that 'lower levels would constitute a bonus for Allied Corporation's withdrawal from its undertaking and subsequent non-cooperation and the withdrawal from their undertakings by Kaiser and Transcontinental'. That consideration is not relevant to the application of Article 13 (3) of the regulation. Examination of the case has not disclosed any other factors indicating that the Council took into account that article in fixing the amount of the anti-dumping duties. It must therefore be concluded that the regulation was adopted in disregard of Article 13 and that it must therefore be declared void.

Costs

20 Under Article 69 (2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. Since the Council has failed in all its submissions, it must be ordered to pay the costs. The Commission must also be ordered to pay the costs of its invervention.

JUDGMENT OF 23. 5. 1985 — CASE 53/83

On those grounds,

THE COURT

P. Heim A. J. Mackenzie Stuart Registrar President