C-246/87

Mr President, Treaty seeking the partial annulment of a Members of the Court, Commission decision which had granted it a partial refund of the anti-dumping duties it had paid pursuant to Regulation No 789/82. The purpose of the application by 1. The Finanzgericht München (Finance Continentale Produkten was to challenge Court, Munich) has submitted for a the validity of that regulation. In that case I preliminary ruling a question on the validity concluded that the procedure for the refund 1 of Commission Regulation No 3453/81 of anti-dumping duties established by and Council Regulation No 789/82. 2 Article 16 of the basic regulation, Council Regulation No 2176/84, which was introduced later but applied to procedures still pending, could not be regarded as 2. Continentale Produkten-Gesellschaft enabling the regulation imposing anti­ Erhardt-Renken GmbH & Co. (hereinafter dumping duties to be challenged. 3 The referred to as 'Continentale Produkten'), Court endorsed that view and dismissed the which regularly imports cotton yarn orig­ application of Continentale Produkten by inating in Turkey and classified under judgment of 24 February 1987, in which it subheading 55.05 B II of the Common held that Article 16 of Regulation No Customs Tariff, has brought proceedings 2176/84 before the Finanzgericht München to challenge customs notices issued by the Hauptzollamt München-West (Principal Customs Office, Munich West) charging 'does not permit the validity of the regu­ Continentale Produkten, upon the lation instituting the duties to be challenged importation on 15, 20, 27 and 28 April 1982 or a review of the general findings made of four consignments of cotton yarn, a during the previous investigations to be definitive anti-dumping duty equal to 12% requested'. 4 of the value for customs purposes. It claims that both of the regulations mentioned above are invalid. 4. In my Opinion in that case I suggested that, in accordance with the Court's judgment in Allied Corporation v 3. Continentale Produkten is no stranger to Commission, 5Community importers could this Court. By application of 28 December resist demands for the payment of anti­ 1984 it brought an application under the dumping duties by bringing proceedings second paragraph of Article 173 of the EEC before the national courts, in which they could claim that the regulation imposing * Original language: French. 1 — Commission Regulation (EEC) No 3453/81 of 2 December 1981 imposing a provisional anti-dumping duty on imports 3 — Opinion in Case 312/84 [1987] ECR 841, at p. 858. of certain cotton yams originating in Turkey (OT L 347, 4 — Judgment of 24 February 1987 in Case 312/84 3.12.1981, p. 19). Continentale Produkten-Gesellschafi v Commission [1987] 2 — Council Regulation (EEC) No 789/82 of 2 April 1982 ECR 841, paragraph 12. imposing a definitive anti-dumping duty on imports of 5 — Judgment of 21 February 1984 in Joined Cases 239 and certaincotton yarns originating in Turkey (OJ L 90, 275/82 Allied Corporation and Others v Commission [1984] 3.4.1982, p. 1). ECR 1005, paragraph 15.

those duties was illegal and could request collection of the anti-dumping duty was to the Court to make use of the procedure take place later, pursuant to the Council available so as to seek a preliminary ruling regulation imposing a definitive duty. on its validity. That was the course chosen Nevertheless, for the purposes of collecting by Continentale Produkten. the definitive anti-dumping duty, Article 2 of Regulation No 789/82 takes account of the sums provided as a security for the provisional duty.

5. The Finanzgericht München has referred provides, since the legal basis of the system to this Court the question of the validity not whereby sums provided as security are only of Regulation No 789/82, which definitively collected would cease to exist. imposed definitive anti-dumping duties of Contrary to the arguments put forward by 12% the charging of which is at issue before the Commission at the hearing, the Court's that Court, but also of Regulation No judgment of 5 October 1988 in the Canon 3453/81 which imposed provisional duties cases 9 did not rule on those difficulties,

Regulation No 3453/81 was determine the validity of Regulation No no longer applicable by the time that the 3453/81 10 is open to doubt, it must be Hauptzollamt München-West issued the recalled that the Court interprets Article 177 notices charging anti-dumping duties, since of the EEC Treaty as meaning that, as a Regulation No 789/82 imposing the rule, only the national court before which definitive duty 7had entered into force in the main proceedings are pending is to

OPINION OF MR DARMON — CASE 246/87

6. Four objections have been raised in their before the Court. The complaint is in fact regard : divisible into two parts;

(a) Article 7(9) of the basic regulation, which requires the termination of the (i) infringement of Article 7(9) of the basic proceeding or the adoption of a definitive regulation for non-observance of the measure within one year of initiation of the period prescribed; proceeding, was not complied with, since the anti-dumping proceeding was initiated on 3 August 1979 but the definitive anti­ dumping duties were not introduced until Regulation No 789/82 of 2 April 1982 was (ii) failure to state the reasons for the delay. adopted, 32 months later. The Council further failed to fulfil its obligation to give reasons, by providing no explanation of this delay in the regulation in question. 9. As regards the first limb of the complaint, Article 7(9) of the basic regu­ lation actually provides that 'conclusion (b) The three Turkish undertakings chosen should normally take place within one year for the assessment of the dumping margin of initiation of the proceeding'. As we have were not representative. seen, the proceeding in this case lasted 32 months. In its observations,12the Council claimed that it was not unusual for the (c) No injury was suffered by the one-year period to be so exceeded. It gave Community undertakings, which is a the following examples: necessary condition for the introduction of an anti-dumping duty.

(i) ball-bearings originating in Japan, (d) Regulation No 789/82 was retroactive, Poland, Rumania and the USSR; the in that it applied to contracts concluded proceeding was initiated on 18 prior to its entry into force; the importer September 1979 and was terminated by could not have foreseen the introduction of Decision No 81/406/EEC of 4 June an anti-dumping duty so long after the 1981, giving a period of 20 months. initiation of the proceeding. The decision was not challenged;

(iii) wrist-watches originating in the USSR: enable traders to carry on their business in a the proceeding was initiated on 19 July stable legal environment demands that the 1980 and an anti-dumping duty was uncertainty caused by the initiation of an introduced on 12 July 1982, giving a anti-dumping proceeding should not period of 24 months. Council Regu­ continue beyond a reasonable period. The lation No 1882/82 of 12 July 1982 was Community institutions cannot enjoy a the subject of proceedings brought discretion in the matter. Consequently, it is under the second paragraph of Article for the Court to verify in each individual 173 of the EEC Treaty by Timex case whether there are special circumstances Corporation, and led to the judgment justifying the exceeding of the one-year 13 of the Court of 20 March 1983. The period. That is the verification which I duration of the proceeding was not one suggest the Court should undertake. of the complaints made by the applicant in challenging the validity of Regulation No 1882/82;

OPINION OF MR DARMON — CASE 246/87

12. With regard to the second limb of the Similarly, the Court has accepted that the first complaint, the Court has consistently reasons may be set out succinctly, provided held that that they are adequate. 18

'the statement of reasons required by Article 190 of the Treaty must disclose in a clear 15. In that connection, the sixth recital in and unequivocal fashion the reasoning the preamble to Regulation No 789/82 followed by the Community authority which states that the Commission carried out a adopted the measure in question in such as supplementary investigation in Turkey on way as to make the persons concerned exports made in the final quarter of 1981 aware of the reasons for the measure and and that this extension of the period of thus enable them to defend their rights, and investigation was made at the request of the to enable the Court to exercise its super­ 16 Turkish exporters. That recital is thus visory jurisdiction'. a sufficient explanation for the non- observance of the period prescribed by Article 7(9) of the basic regulation. In my 13. Since the Court verifies whether there opinion, therefore, the first complaint are special circumstances justifying the cannot be accepted. non-observance of the period prescribed in Article 7(9) of the basic regulation, the Community institution must give reasons for the adoption of a measure protecting the 16. The second and third complaints, Community against dumping practices even alleging that the Turkish undertakings when a much longer period has elapsed chosen for the assessment of the dumping since the initiation of the proceeding than margin were unrepresentative and that no was envisaged by the basic regulation. As injury was incurred by the Community was explained above, traders are entitled to undertakings, involves the appraisal of expect that the uncertainty arising from the complex economic situations, with regard to initiation of anti-dumping proceedings will which the Court has held that: not continue indefinitely. Similarly, they are entitled to know the reasons for the non-observance of the one-year period.

17. The complaint alleging that the under­ which replaced Regulation No 3017/79, takings chosen for the assessment of the that: dumping margin were unrepresentative is based on the fact that the Commission had to make special adjustments in respect of those undertakings since the company Taris Pam. Tar. Sat. Koop. Birligi Iplik Fab. had not permitted the Commission to check or 'It is clear from the wording and scheme of to supplement the information supplied on the above provisions that regard must its production costs and secondly since the primarily be had to the price actually paid Commission had had to make adjustments or payable in the ordinary course of trade in to the overheads communicated by order to establish the normal value, the 20 Cukurova Sanayi Isl. AS and to the manu­ other possibilities being merely subsidiary'. facturing costs communicated by Trakya Iplik Sanayi AS.

However, the Court further held that:

'The institutions. .. enjoy a margin of 21 discretion in that respect'.

OPINION OF MR DARMON — CASE 246/87

20. In that regard, Article 2B(3)(b) should yarn exports to the Community over the be read in conjunction with Article 7(7)(b) first seven months of 1981, were selected. of the same regulation, which provides that: The three principal undertakings were 'In cases in which any interested party or finally chosen. At a meeting on 20 third country refuses access to, or otherwise November 1981, the TTEA confirmed that does not provide, necessary information the three undertakings were indeed within a reasonable period, or significantly representative. Once again, the complaint impedes the investigation, preliminary or appears to be unfounded. final findings, affirmative or negative, may be made on the basis of the facts available'.

CONTINENTALE PRODUKTEN-GESELLSCHAFT v HAUPTZOLLAMT MÜNCHEN-WEST

appraisal of the facts set out above or that it general contracts or multiple delivery misused its powers in doing so. contracts, to delay indefinitely the entry into force of a Community regulation and thereby render it totally ineffective. On the 25. Lastly, as far as the retroactive other hand, dealings in which all the obli­ character of Regulation No 789/82 is gations have been discharged cannot be concerned, the Court's case-law on the affected. Such is the case when the contract subject is now well established. On has been finally performed. numerous occasions the Court has declared that:

'According to a generally accepted principle, 28. However, in its judgments the Court a law amending a legislative provision has made an exception to those principles, applies, save as otherwise provided, to the by holding that a new legislative provision future effects of situations which arose may not be immediately applicable if it under the previous law'. 22 conflicts with the protection of legitimate expectation. 24

26. As Mr Advocate General Capotorti explained in his Opinion in IFG v Commission, 29. Could Continentale Produkten legit­ imately have expected, when concluding the 'there can ... be no question ... of the mere contracts under which it imported cotton existence of a contract conferring on the yarn from Turkey, that no anti-dumping parties the right to a guarantee on the part duties would be imposed in the future? of the Community institutions that, until the contract is executed, the legal conditions applicable at the time of its conclusion shall 23 remain unchanged . . . '. 30. It seems clear that in this case as least two of the conditions laid down by the 27. The complaint in question appears to Court for Community institutions to be held arise from a confusion between the liable on the grounds of infringement of immediate application of a new legislative legitimate expectation are not satisfied. 25

above, Continentale Produkten regularly the Council thought it equitable to imports cotton yarn from Turkey and 'facilitate, as an exceptional measure, the should therefore have acted like a adjustment of those operators who had 'circumspect and prudent trader', in entered into trade commitments, to the new particular by keeping itself informed of situation created by the provisional anti­ possible amendments to Community legis­ 27 dumping duty' by introducing an lation which would affect the products covered by its business. The initiation of adjustment period of four weeks starting anti-dumping proceedings regarding cotton from the day on which the provisional anti­ yarn originating in Turkey had been dumping duty entered into force, namely on published in the Official Journal of the 26 2 December 1981. Accordingly, Article 2(2) European Communities. As an importer of of the regulation provides that amounts those products, Continentale Produkten secured by way of provisional anti-dumping could not have been unaware that the duty in respect of products released for initiation of the proceeding would, in consumption before 1 January 1982 are to accordance with Article 7(9) of the basic be released. Consequently, by inserting that regulation, lead either to a decision termi­ provision, the Council took into account the nating it — which is also published in the principle of the protection of legitimate Official Journal — or to the imposition of expectation. an anti-dumping duty. As far as that importer was concerned, therefore, there 33. Lastly, on the subject of import licences, was nothing unforeseeable about the the Court has held that Council's adoption of Regulation No 789/82. 'If an importer finds that the performance of the contract under the new system is 32. In the second place, there were detrimental to his interests he must seek the certainly grounds of public appropriate remedy on the basis of his legal interest — namely the protection of the 28 relationship with his co-contractor ... '. Community market — to justify the entry into force of Regulation No 789/82 as early 34. It follows that the last complaint is no as possible. It should also be observed that more acceptable than the previous one.