C-120/83
ECLI:EU:C:1983:224
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ORDER OF T H E PRESIDENT O F T H E C O U R T 19 JULY 1983 *
V / O Raznoimport v Commission of the European Communities
Case 120/83 R
Proceedings for the adoption of interim measures — Suspension of operation — Interim measures — Conditions for grant thereof (EEC Treaty, Arts. 185 and 186; Rules of Procedure, Art. 83 (2))
Suspension of operation and the other measures to be issued and to take effect interim measures which may be pre- before the decision of the Court on the scribed by the Court pursuant to Articles substance of the case in order to avoid 185 and 186 of the EEC Treaty cannot serious and irreparable damage to the be considered unless the factual and legal party seeking them. Finally, they must be circumstances relied upon to obtain them provisional in the sense that they do not establish a prima facie case for granting prejudge the decision on the substance of them. In addition there must be urgency the case. in the sense that it is necessary for the
In Case 120/83 R
V / O RAZNOIMPORT, a trading body having its registered office in Moscow (USSR), Smolenskaja-Sennaja, 32, represented by Francis Jacobs, barrister of the Middle Temple and D. F. Hall, solicitor with the firm of Linklaters and Paines in London, with an address for service in Luxembourg at the Chambers of Elvinger and Hoss, 84 Grand'Rue,
applicant,
v 1 — Language of the case: English.
ORDER OF 19. 7. 1982 — CASE 120/83 R
COMMISSION OF THE EUROPEAN COMMUNITIES, 200 Rue de la Loi, B-1049 Brussels, represented by P. J. Kuyper, a member of its Legal Department, with an address for service at the office of Oreste Montako, a member of its Legal Department, Jean Monnet Building, Kirchberg, defendant,
APPLICATION to suspend the operation of Commission Regulation (EEC) No 1613/83 of 15 June 1983 imposing a provisional anti-dumping duty on imports of unwrought nickel, not alloyed, in the form of cathodes produced by electrolysis, either uncut or cut into squares, originating in the Soviet Union (Official Journal, L 159, p. 43).
T H E PRESIDENT OF THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES
makes the following
ORDER
I — Gutline of the facts is being caused to the producers in question. Following receipt of that complaint, the In December 1982, the Commission Commission initiated, by a notice received a complaint lodged on behalf of published on 5 February 1983 (Official United Kingdom, French and Greek Journal, C 31, p. 3), an anti-dumping producers whose collective output con- proceeding pursuant to Article 7 of stitutes the total Community production Council Regulation (EEC) No 3017/79 of unwrought nickel, not alloyed, in the of 20 December 1979 on protection form of cathodes produced by against dumped or subsidized imports electrolysis, either uncut or cut into from countries not members of the squares (hereinafter referred to as European Economic Community (Of- "nickel")· That complaint contains ficial Journal, L 339, p. 1), as amended evidence that dumping is being practised by Council Regulation (EEC) No in the case of nickel from the Soviet 1580/82 of 14 June 1982 (Official Union as a result of which serious injury Journal, L 178, p. 9).
RAZNOIMPORT v COMMISSION
On . 7 February 1983, the French of the product in question in Canada. Government requested, pursuant to The Commission has estimated the Article 11 (3) of Regulation No weighted average dumping margin at 3017/79, immediate intervention by the 40%. In assessing. the . causes of the Commission in the form of the injury established, it considered that the imposition of provisional anti-dumping prices of Soviet exports had undercut the duties. prices of other imports into the Community by an average margin of 7% By Decision 83/64/EEC of 14 February in 1982 and thus concluded that the 1983 (Official Journal, L 43, p. 19), the injury caused by dumped imports from Commission refused that request but the Soviet Union alone had to be continued the investigation commenced regarded as material.
by its Notice of 5 February 1983. In the light of the results of that investigation the Commission considered that the On 29 June 1983 the applicant brought preliminary examination which it had an action under Articles 173, 178 and conducted showed that dumping was 215 of the EEC Treaty for a declaration being practised, that there was sufficient that'Regulation (EEC) No 1613783 is evidence that injury was being caused void and for damages in respect of the thereby and that the interests of the losses which it claims to suffer, the Community called for action to be taken amount of such damages to be to prevent injury, from, being caused determined subsequently.
during the proceeding. Accordingly, on the basis of Article 11 of Regulation (EEC) N o 3017/79, the Commission adopted Regulation (EEC) No 1613/83 of 15 June 1983 imposing a provisional II — W r i t t e n p r o c e d u r e anti-dumping duty on imports of unwrought nickel not alloyed, in the form of cathodes produced by By application lodged at the Court electrolysis, either uncut or cut into Registry on 29 June 1983, the applicant squares, classified under subheading ex seeks, on the basis of Articles 185 and 75.01 of the Common Customs Tariff, 186 of the EEC Treaty, an order corresponding to Nimexe Code ex suspending the operation of Commission 75.01-21, originating in the Soviet Regulation (EEC) No 1613/83 and, Union. secondarily, the adoption of any other
measures as may be necessary to preserve Regulation (EEC) No 1613/83 provides the applicant's position pending the that the amount of that provisional duty determination of the main application is to be equal to 7% of the net price, and an order for the payment by the free-at-Community-frontier, before duty Commission of the costs of the interim and that the release for free circulation proceedings. of the products concerned is to be subject to the provision of a security equivalent to the amount of the pro- In support of its request, the applicant visional duty. refers to the arguments which it developed in the main proceedings For the purpose of establishing the concerning the admissibility of its existence of dumping, Regulation (EEC) application and the illegality of the No 1613/83 determined, in accordance contested Regulation.
In the first place, with Article 2 B 5 of Regulation (EEC) the applicant argues that it is inappro- No 3017/79, the normal value of nickel priate to apply the Community anti- by reference to the "constructed" value dumping rules in circumstances such as
ORDER OF 19. 7. 1982 — CASE 120/83 R
those of this case in which the selling considers that, in the present case, the prices of nickel are necessarily contested decision is a measure of determined by world market prices as general application which could apply to fixed on the London Metal Exchange. other Soviet exporters and which is Accordingly, the requirements of Arti- consistent with a view of dumping cle 2 of Regulation (EEC) No 3017/79, which, according to the defendant, is still which must be fulfilled if a product is to prevalent within the General Agreement be regarded as dumped, have not been on Tariffs and Trade.
satisfied. Secondly, the applicant maintains that there can be no injury within the meaning of Article 4 of the The defendant considers that the fact same Regulation since there is no that nickel marketed by the applicant is Community industry to be protected. It sold at prices determined on the basis of also contends that the decision to impose those of the London Metal Exchange a provisional duty on imports from the does not preclude the existence of dumping and the application to this case Soviet Union alone is discriminatory and of Community anti-dumping rules
was adopted on the basis of a file which applicable in trade with countries which was deliberately left incomplete. do not have a market economy, and that those rules have been applied by it in a Moreover, the applicant maintains that manner which is neither artificial nor suspension of the operation of the discriminatory in relation to Soviet contested Regulation is a matter of exports. The defendant adds that the urgency in order to prevent immediate, interests of Community industry are serious and irreparable harm. Such harm sufficiently important to justify the would result from the refusal by buyers adoption of the contested Regulation. of nickel to obtain supplies from the applicant if the quantities bought could be imported into the Community only on In the light of those reasons, the condition that payment of an anti- defendant submits that the main dumping duty was guaranteed by the application is not sufficiently well provision of a security, in view of the founded in law or in fact to justify the fact that nickel is in plentiful supply on adoption of interim measures within the the world market and that no customs meaning of Article 83 (2) of the Rules of duty is charged on imports of nickel into Procedure.
the Community. The defendant contends, moreover, that In its written submissions, lodged at the the applicant can only rely on harm Court Registry on 8 July 1983, the which it claims to be suffering itself and defendant contends that the application that it has failed to provide any evidence for the adoption of interim measures of the need for the adoption of interim should be dismissed and that the measures in order to prevent serious and applicant should be ordered to pay the irreparable harm. It adds that the injury costs. which suspension of the operation of the contested decision would cause to
Community industry and to the general In support of its contentions, the interest of the Community would be out defendant refers in the first place to its of proportion to the harm which the doubts concerning the admissibility of an immediate application of the contested application by an exporter for a decision would occasion to the private declaration that a decision imposing a interests in a non-member country which provisional anti-dumping duty is void. It are represented by the applicant.
RAZNOIMPORT v COMMISSION
III — Oral procedure 15 July 1983 in the interim proceedings. At the applicant's request the President made an order, pursuant to Article 56 of The parties were duly summoned and the Rules of Procedure, that the case was presented oral argument at the sitting on to be heard in camera.
Decision
1 According to Article 185 of the EEC Treaty actions brought before the Court of Justice do not have suspensory effect. The Court of Justice may, however, if it considers that the circumstances so require, order that application of the contested decision be suspended and prescribe any other interim measure pursuant to Article 185 and 186 of the EEC Treaty.
2 According to established case-law, the adoption of such measures cannot be considered unless the factual and legal circumstances relied upon to obtain them establish a prima facie case for granting them. In addition there must be urgency in the sense that it is necessary for the measures to be issued and to take effect before the decision of the Court on the substance of the case in order to avoid serious and irreparable damage to the party seeking them. Finally, they must be provisional in the sense that they do not prejudge the decision on the substance of the case.
3 The decision which is contested in the main proceedings is itself an interim measure which was adopted unter the procedure established by Council Regulation (EEC) No 3017/79 of 20 December 1979 on protection against dumped or subsidized imports from countries not members of the European Economic Community (Official Journal, L 339 of 31. 12. 1979, p. 1). According to that Regulation, the procedure for fixing an anti-dumping duty is to be implemented in several stages, one of which includes the fixing of a provisional anti-dumping duty on completion of an investigation involving the interested parties.
4 The imposition of that provisional duty is itself carried out in two stages, in the manner provided for by Articles 11 and 12 of the abovementioned Regu- lation. Article 11 (1) provides that where preliminary examination shows that
ORDER OF 19. 7. 1983 — CASE 120/83 R
dumping or a subsidy exists and that there is sufficient evidence of injury caused thereby, the Commission, acting at the request of a Member State or on its own initiative, is to impose, if the interests of the Community call for intervention to prevent injury being caused during the course of the proceeding, a provisional anti-dumping or countervailing duty.
5 In such cases, entry of the products concerned for Community consumption is to be conditional upon the provision of security for the amount of the provisional duty.
6 Article 11 (5) provides that provisional duties are to have a maximum period of validity of four months which may, in certain circumstances, be extended for a further period of two months.
7 According to Article 12 (2) (a) and (b), the Council must, at the time at which it decides to impose a definitive duty, also decide, on a proposal from the Commission and irrespective of the decision which it adopts regarding the imposition of a definitive duty, what proportion, if any, of the pro- visional duty is to be definitively collected. The definitive collection of the provisional duty may not be decided upon, however, unless the facts as finally established show that there has been dumping or subsidization, and material injury or threat of material injury which would, in the absence of interim measures, have developed into material injury. In the circumstances in this case, that decision will have to be adopted before 17 October 1983 or, if the period is extended, before 17 December 1983.
s It is in the light of the specific features of the procedure thus established that it is necessary to determine whether the conditions for the suspension of the operation of the contested decision are satisfied.
9 In that respect, the serious nature of the complaints formulated by the applicant cannot be disregarded. Leaving aside the problem of the admissibility of actions brought against decisions of that kind, which has not yet been wholly resolved in the case-law of the Court, serious doubt surrounds the question whether, in adopting a constructed value as a basis of reference when prices are apparently determined by market mechanisms, and
RAZNOIMPORT v COMMISSION
in calculating that constructed value on the basis of production costs in a non-member country which may itself be in the situation referred to in paragraph (4) of Article 2 B, the Commission applied the criteria set out in paragraph (5) in an appropriate and reasonable manner. In the light of the explanations provided during the proceedings for the adoption of interim measures, there are also doubts concerning the circumstances which led the Commission to fix the rate of the provisional anti-dumping duty at 7%.
io Since the first condition which must be fulfilled for the grant of interim measures has thus undoubtedly been satisfied, it remains to assess the urgency of, and the need for, the suspension applied for in order to prevent serious and irreparable damage, as indicated above, from being caused to the applicant.
1 1 According to the applicant that damage consists in the risk that the patterns of trade established by it may be disrupted as a result of the obligation to provide security at the time of entry of the nickel for consumption on the Community market during the period of validity of the provisional duty.
i2 It must be emphasized that, under the procedure established by Regulation (EEC) N o 3017/79, the Council will shortly have to decide both whether to impose a definitive duty and whether to collect definitively the provisional duty. Although that does not in itself exclude the possibility of suspending the operation of the contested measure, the Court must, however, in proceedings for the adoption of interim measures, take account of the specific features of the procedure in question and of the powers which the Council will have to exercise within the prescribed period, after it has been given full information, in particular in the light of what has emerged during these proceedings for the adoption of interim measures.
1 3 In the meantime, the Commission is under an obligation not only to continue its investigation, in order to enable the Council to decide whether or not dumping is being practised, but also, in view of the specific features of "this case, to monitor from day to day any changes in prices on the market of the product which is subject to the provisional duty in order to determine whether it is necessary to maintain that duty or the rate thereof. The Commission must be ordered to act in accordance with that obligation.
ORDER OF 19. 7. 1983 — CASE 120/83 R
i4 For the rest, it appears from the information provided during the proceedings for the adoption of interim measures that, in view of the characteristic features of the market of the product in question, the risk of any lasting disruption of the patterns of trade as a result of the maintenance of the provisional duty is small. It has not been established that the applicant will be unable to avoid such damage by adopting measures consistent with the obligation to cooperate which is incumbent upon it in order to mitigate the alleged damage.
is It follows from those considerations that the obstacle which prevents the applicant from fulfilling its sales potential is in substance limited to the burden constituted by the provision of security. The cost of that security may, according to the information provided by the parties, be estimated at 1% to 2 % of the amount of the provisional duty, payment of which is to be guaranteed. Even if the applicant, which is the sole exporter of Soviet production, were to undertake provisionally to bear the costs of that security in order to be able to market its products during the period in which the provisional duty is in force, that disadvantage cannot constitute serious and irreparable damage such as would permit the suspension of a decision adopted in the context of a complex economic situation. Any damage which may occur can, if appropriate, be made good in the context of the action for compensation brought by the applicant.
i6 Accordingly, for-the rest, the application must be dismissed, and, at the present stage of the proceedings, it is appropriate to reserve the costs.
On those grounds,
T H E PRESIDENT,
by way of interim decision,
hereby orders as follows :
RAZNOIMPORT v COMMISSION
1. The Commission is under an obligation to monitor from day to day any changes in prices on the market of the product which is subject to the provisional duty in order to determine whether it is necessary to maintain that duty or the rate thereof;
2. For the rest, the application is dismissed;
3. The costs are reserved.
Luxembourg, 19 July 1983.
J. A. Pompe J. Menens de Wilmars Deputy Registrar President