C-229/86

Brother International Europe Limited, having its registered office in Audenshaw, Manchester, United Kingdom,

represented by Clare Tritton, Barrister, and Taylor Garrett, Solicitor, London, with an address for service in Luxembourg at the Chambers of Ernest Arendt of Arendt & Harles, 4 avenue Marie-Thérèse,

applicants,

v

* Language of the Case: English.

BROTHER INDUSTRIES v COMMISSION

THE COURT

composed of: Y. Galmot (President of Chamber), acting as President, C. Kakouris, T. F. O'Higgins and F. Schockweiler (Presidents of Chambers), G. Bosco, T. Koopmans, O. Due, U. Everling, K. Bahlmann, R. Joliet and J. C. Moitinho de Almeida, Judges,

Advocate General: Sir Gordon Slynn Registrar: P. Heim

after hearing the views of the Advocate General,

makes the following

ORDER OF 30.9. 1987 —CASE 229/86

In paragraphs (8) and (9) of the preamble to By a document lodged at the Court Registry Decision 86/193 it is stated that the elec­ on 24 October 1986 the Commission raised tronic typewriters subject to the anti­ an objection of inadmissibility pursuant to dumping proceeding cannot, on the basis of Article 91 (1) of the Rules of Procedure. the results of the investigation, be regarded as originating in Taiwan within the meaning By an order made on 11 March 1987 the of Regulation (EEC) No 802/68 of the Court granted leave to the Committee of Council on the common definition of the European Typewriter Manufacturers concept of the origin of goods (Official (Cetma) to intervene in support of the Journal, English Special Edition 1968 (I) p. Commission's conclusions. 165) and that consequently the proceeding should be terminated. In its objection the Commission contends that the application is inadmissible since the In paragraph (1) the memorandum states conditions needed for a measure to be that the anti-dumping proceeding con­ susceptible of legal challenge are not cerning imports of electronic typewriters fulfilled in this case. originating in Taiwan was terminated on the basis of the fact that the imported products actually originated in Japan and in The Commission contends in particular that paragraph (3) (c) that there are reasons to the decision and the memorandum do not assume that the imports from Taiwan were alter the applicants' legal position. In the a deliberate attempt to evade the anti­ absence of provisions adopted by the dumping duties imposed on electronic Council or the Commission in accordance typewriters originating in Japan. In with the procedure laid down in-Article 14 paragraph (5) the memorandum suggests of Regulation No 802/68 and based on an

opinion of the Committee on Origin, only a only necessary to prove that an act may formal demand by a national administration alter a person's legal position, even if it is to pay anti-dumping duties would have binding only on third parties. In the present binding legal effects on the applicants and case, the contested acts extinguished be open to challenge by them before the immunity from the obligation to pay anti­ national courts. The Commission's opinion dumping duties which Brother had as to the country of origin of goods merely previously enjoyed and are therefore the confirms the existence of an obligation (to cause of an adverse change in Brother's pay the anti-dumping duty) which the legal rights and obligations. It is not exporters already have, if that opinion is sufficient to maintain, as the Commission correct, but it does not create any new obli­ does, that the contested acts are not gation for the applicants. decisions but merely 'opinions on existing legal obligations'. In reality, the possibility Cetma states that neither the reasoning of that the national authorities might disregard the decision nor the memorandum has any the finding of origin made by the direct and concrete legal effects on the Commission in the contested acts was applicants since the definitive decision entirely theoretical given the role played by concerning the origin of goods will be taken the Commission in dumping matters. The by the national authorities. It is for the Commission's decision to terminate a applicants to prove that the electronic dumping investigation on the ground that typewriters from Taiwan are actually of the country of origin is different from the Taiwanese origin in accordance with Article declared country of origin affects Brother's 5 of Regulation No 802/68, even if this legitimate interests in so far as, because of appears difficult owing to the anti-circum­ that finding, the anti-dumping duties attrib­ vention provision in Article 6 of the same utable to a different country of origin regulation. become payable. Finally, the action taken by the national authorities following the issue In their observations on the objection of of the memorandum of 5 June 1986 shows inadmissibility the applicants (hereinafter that the memorandum did generate legal collectively referred to as 'Brother') submit effects of such a nature as to alter the that for the purposes of admissibility it is applicants' position to their disadvantage.

The statement in the preamble to that decision to the effect that the proceeding was terminated because in view of the results of the investigation the electronic typewriters shipped from Taiwan could not be regarded as originating in that country cannot, any more than the aforesaid decision, produce legal effects, even indirect effects, vis-à-vis that producer/exporter. The national customs authorities who are required to establish the origin of imported goods for the purposes of applying anti-dumping duties if this is found necessary are in fact bound as to the conclusions which they must reach only where the origin of the goods was determined by the Commission on the basis of the criteria laid down in Regulation No 802/68 of the Council of 27 June 1968 on the common definition of the concept of the origin of goods and pursuant to the procedure laid down in Article 14 of that regulation. The finding which the Commission reaches in the course of an anti-dumping proceeding cannot therefore prejudge the conclusions of the national customs authorities who in such a case retain their power to assess inde­ pendently the determining factors for establishing the origin of a product.

In those circumstances, the possibility that Decision 86/193 might adversely affect the legal position of the producer/exporter in so far as it is stated in the decision that the electronic typewriters shipped from Taiwan are not Taiwanese in origin must be excluded.

In view of the foregoing considerations, it also cannot be accepted that Decision 86/193, if considered in conjunction with the memorandum sent by the Commission to the Member States on 5 June 1986 and not in isolation, might adversely affect the producer/exporter concerned.

The application must therefore be declared inadmissible without there being any need to examine its admissibility in relation to each of the applicant companies.

In accordance with Article 69 (2) of the Rules of Procedure, the applicants must be ordered to pay the costs, including those of the intervener, Cetma, which has asked for them.

On those grounds,

THE COURT

hereby orders as follows:

(1) The application is dismissed as inadmissible;