C-312/84

It is the first time that that procedure has It based its decision both on the conditions given rise to proceedings before the Court. in which the anti-dumping proceeding took place, the reasons for which it had opted for a constructed normal value and, equally, on the problems connected with individualizing 2. The limited company Continentale that value in the framework of the Produkten Gesellschaft (hereinafter referred procedure for reimbursement under Article to as 'Continentale Produkten'), which 16, and added that in any event the imports cotton yarns originating in Turkey, applicant had not adduced sufficient proof was obliged to pay, in respect of the in support of its claims. Continentale customs value of the goods which it had Produkten puts forward four claims, which imported between 15 April and 16 July 1982 are set out in the Report for the Hearing. the anti-dumping duty of 12% imposed by Primarily, it seeks a declaration that the Council Regulation No 789/82 of 2 April Commission's decision is void. The 1982 for products of that kind which were applicant claims first that the Commission released for consumption after 1 January had no power to adopt the decision at issue, 1982. and secondly that the decision is vitiated by illegality.

In accordance with Article 15 of Council Regulation No 3017/79 (hereinafter The powers of the Commission

* Translated from the French. 1 — Article 15 of Council Regulation No 3017/79 of 20 3. According to Article 15 of the 1979 December 1979 on protection against dumped or subsidized imports from countries not members of the regulation, the Member State in the European Community and Article 16 of Council Regu- territory of which the products were entered lation No 2176/84 of 23 July 1984 which has applied since 1 August 1984. for consumption,

Article 16 of the 1984 Regulation amends those provisions in particular by stating that: Indeed, Article 15 already required the State to which an application for reimbursement 'If the Member States agree with the was submitted to comply, when deciding on opinion given by the Commission or do not such application, with the opinion given by object to it within one month of being the Commission and approved by the informed, the Commission may decide in Member States. In such a case its power was accordance with the said opinion. In all therefore totally dependent upon the other cases, the Commission shall, after Commission's opinion. Consequently, consultation, decide whether and to what Article 16 merely transferred formally to the extent the application should be granted.' Commission a power of decision which in practice it already had. In the event of an objection by a Member State, including the State to which the application had been 4. The first question which therefore arises submitted, the procedure was formally is whether the Commission was empowered amended in the same way, so that the under Article 16 of the 1984 Regulation to Commission then had a direct power to decide on an application for a refund decide the application. submitted in accordance with Article 15 of the 1979 Regulation. I, unlike the applicant, consider that that question must be answered in the affirmative. Thus, without it being necessary to examine the other arguments put forward under this head, based on the alleged disagreement of The procedure had already commenced at the Federal Republic of Germany and the the time when the new regulation entered length of the procedure, it is sufficient to into force, and the Commission obtained its state that the fact that Article 16 applied to powers from the general provision in Article an application for reimbursement submitted 16 in conjunction with the transitional under Article 15 of the 1979 Regulation did provision laid down in Article 19, to the not affect the substantive or procedural effect that the 1984 regulation 'shall apply rights of the applicant. This submission to proceedings already initiated'. therefore cannot be accepted.

That regulation is intended to defend Community production 'against dumped 'The amount of such duties shall not exceed imports'. Article 2 (2) states as follows: the dumping margin provisionally estab­ lished or the amount of the subsidy provisionally estimated or finally estab- lished; it should be less if such lesser duty 'A product shall be considered to have been would be adequate to remove the injury. dumped if its export price to the Community is less than the normal value of the like product', There is therefore a twofold limit. The fact that the duty is limited to the level of the esublished margin requires that that margin should, even if it is based on standard data, that is to say, the market price of the be as close as possible to reality. product. It is then possible to calculate the 'dumping margin', which is defined in Article 2 (13) (a) as 'the amount by which In the first place, that presupposes at the the normal value exceeds the export price'. outset that the interested parties, in particular Community importers and exporters from non-member countries, should have been able to submit any obser­ The calculation may be based on actual dau vations concerning their own situation. That or on constructed data, which are in general is precisely the purpose of the rules averaged. Although the normal value and concerning the initiation and subsequent the export price are in principle determined investigation conducted by the Commission, by reference to the price actually paid or as laid down in Article 7 of the 1984 Regu­ payable (Article 2 (3) (a) and 8 (a)), they lation. The Commission must publish in the

First, in contentious proceedings. The exporters may bring an action for a declaration that the regulation instituting the anti-dumping duties is void, on the basis The Commission must also supply to 'the of the second paragraph of Article 173, in importers and exporters known to be the conditions laid down by the judgments concerned ... all information made available of the Court (Joined Cases 239 and 275/82 to the Commission by any party to an inves­ Allied Corporation v Commission [1984] tigation'. They 'may request to be informed ECR 1005). Community importers may, like of the essential facts and considerations on the applicant, bring an action before the the basis of which it is intended to national courts challenging the decisions recommend the imposition of definitive providing for the collection of duty, in duties or the definitive collection of which they can challenge the legality of the amounts secured by way of a provisional regulation itself and request the Court to duty' (Article 7 (4) (a) and (b)). The make a reference for a preliminary ruling on Commission must hear the interested parties its validity (Allied Corporation, cited above, if they have requested it to do so within the paragraph 15). period prescribed in the announcement of the initiation of an investigation (Article 7 (5)) and give them an opportunity to meet (Article 7 (6)). Lastly, although Article 8 provides for the confidentiality of certain Secondly, by two administrative adjustment information, such confidentiality must be procedures. First, any interested party is reconciled with the rights of the defence entitled, after the duties have been applied (judgment of 20 March 1985 in Case for one year, to request a 'review, in whole 265/82 Timex v Commission [1985] ECR or in part, where warranted' of the regu­ 849, 861, paragraphs 24 and 30). lation imposing anti-dumping duties, if it 'submits evidence of changed circumstances sufficient to justify the need for such review' (Article 14 of the 1984 Regulation). If a review is warranted, the investigation may The fact that the parties are heard under the be reopened with a view to amending or procedure for an anti-dumping investigation repealing the original regulation. Secondly, thus gives the Community importers and any Community importer may, like the exporters from non-member countries applicant in this case, apply for a refund concerned an opportunity of making known under Article 16. their point of view before any duty is fixed.

Because the measure in respect of which the 'in applying these rules it is essential, in applicant is requesting a declaration of order to maintain the balance of rights and nullity is a decision by which the obligations which these Agreements sought Commission refused to apply Article 16 of to establish, that the Community take the regulation, the application brought account of their interpretation by the before the Court cannot be based on the Community's major trading partners, as alleged illegality of Regulation No 789/82. reflected in legislation or established practice'.

In this area, apan from compliance with the In this case, the dumping margin was fixed procedural safeguards which are not at issue on the basis of a constructed normal value in this case, the control exercised by the and a real export price (twelfth recital to Court is limited to a manifest error of Regulation No 789/82). On that basis, assessment and misuse of powers (Case Article 16 enabled Continentale Produkten, 191/82 Fediol v Commission [1983] ECR if that had been the case, to rely upon: 2913, paragraph 30). No misuse of power has been alleged. As to manifest error, which it is up to the applicant to prove, no such error has been established. It can only be assessed by reference to the elements ( i ) as regards the constructed value, the supplied to the Commission in support of special features of the production by the application for a refund. Continentale its suppliers (cases of family-based Produkten has not succeeded in establishing undertakings, for example), that the Commission failed to take into account one or more of such elements, which were so decisive in nature as to have entitled it to a refund. In any case, statements by suppliers merely certifying (ii) as regards export prices, the decision that the prices applied did not entail any which might have been taken by its dumping could not be regarded as so suppliers, anticipating the arrangement decisive. So far as subsequent events are to be made, to raise those prices to the concerned, even if they were relevant they level of the constructed value. could not affect the legality of the contested decision. It is impossible to reopen before the Court of Justice consideration of an application which has to result in an admin­ istrative decision. 7. In this case, Continentale Produkten is disputing the adjustment of the constructed normal value to meet its individual case. That is determined by the economic and legal raison d'être for the system. A general decision for the protection of the Community, adopted with safeguards and If, in order to refuse its request for a subject to the means of appeal described refund, the Commission had on principle above, imposed an anti-dumping duty refused to take into account consideration applicable to all imports of a certain kind of factors peculiar to its suppliers, it would product. A provision applying ex post facto