C-170/89

However, it might be useful that your organization make known the view of the 3. The Commission's letter is the reply to a consumers in this proceeding to the written request which the BEUC had made Commission's services; in this context, we on 13 March 1989, following the publica- are prepared to take into account any tion of the notice of initiation of an anti- written submission from you, as well as to dumping proceeding concerning certain give you the opportunity to be heard orally.' imports of audio cassettes and audio

* Original language: French. 1 _ OJ 1988 L 209, p. 1.

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cassette tapes originating in Japan, the In the alternative, the BEUC argues that, by Republic of Korea and H o n g Kong, 2 in denying it access to the non-confidential which the Commission, pursuant to Article documents, the Commission has failed to 7(l)(a) of the basic regulation, had called observe the principle of good administration upon interested parties to make known their and the principle that the rules of views in writing and, in appropriate cases, Community law and procedure must be to request a hearing not later than 30 days applied in a coherent fashion. following the date of publication of the notice.

Admissibility

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BEUC v COMMISSION

provided for by Community law. I therefore views on the truth and relevance of the facts consider it appropriate to go on to consider and circumstances alleged and on the the substance of the case. documents used by the Commission to support its claim that there has been an infringement of Community law.'

Observance of the right to be heard

4 — See in particular the judgment of 21 September 1989 in Joined Cases 46/87 and 227/88 Hoechil v Commission 'informed of the essential facts and [1989] ECR 2859, at para. 14, and the judgment of 18 considerations on the basis of which it is October 1989 in Case 374/87 Or/tern v Commission [1989] ECR 3283, at para. 32. intended to recommend the imposition of

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definitive duties or the definitive collection consumers' interests form part of the of amounts secured by way of provisional Community's interests, the Commission duty', cannot properly ascertain the Community interest without allowing consumers to expound and defend their legitimate interests in the course of the proceeding. it goes on to argue, in paragraph 28 of its application, that

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BEUC v COMMISSION

undertakings should be able to institute 'there are circumstances in which the Court proceedings in order to protect their will consider that an association repre- legitimate interests (judgments of 25 senting collective interests can be directly October 1977 in Case 26/76 Metro v and individually concerned by a proceeding Commission [1977] ECR 1875, 5 October which requires the Commission to take a 1983 in Case 191/82 Fediol v Commission decision after having weighed up the [1983] ECR 2913, and 11 October 1983 in interests of various parties' (see the last Case 210/81 Demo-Studio Schmidt v paragraph on page 8 of the typescript text Commission [1983] ECR 3045). of the Report for the Hearing).

14. The same is true of the judgment of 2 February 1988 in Joined Cases 67, 68 and 70/85 (Van der Kooy and Others v 17. I do, however, agree with the BEUC Commission [1988] ECR 219), cited by the that Article 7(4)(a) does not prevent the BEUC in support of its assertion that Commission from making available to it

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non-confidential documents. It follows that provided for by Article 7(4)(a) of the basic the Commission cannot be criticized for regulation and not to any obligation of giving the BEUC a copy of the disclosure which would arise from the right non-confidential version of the complaint, to be heard under Article 7(5). as the BEUC recounts at paragraph 10 of its application.

The right to be heard and its consequences 20. In the alternative, I take the view in any event that the BEUC has not succeeded in demonstrating during these proceedings that it should have been considered an 'interested party likely to be affected by the 18. In its reply, the BEUC further argues result of the proceeding' or that there were that it has the right to be heard, and hence 'particular reasons why [it] should be heard to receive the documents on the file orally'. pursuant to Article 7(5) of the basic regu- lation, which provides as follows:

'The Commission may hear the interested 21. In the first place, the argument that the parties. It shall so hear them if they have, BEUC falls within the category of persons within the period prescribed in the notice envisaged by Article 7(5) on the ground that published in the Official Journal of the it is directly and individually concerned by European Communities, made a written the anti-dumping proceeding cannot be request for a hearing knowing that they are accepted for the reasons set out above. an interested party likely to be affected by the result of the proceeding and that there are particular reasons why they should be heard orally.'

(Official Journal 1980 L 320, p. 33) is in the investigation and Article 7(5) cannot immaterial: the task of that Committee, create still broader rights. No argument to whose members are appointed by the the contrary can be derived from the Commission and which is convened by the judgment of 20 March 1985 in Case 264/82 Commission, is (Ttmex Corporation v Council and Commission [1985] ECR 849). Although the Court gave a broad interpretation of Article 7(4)(a) in that judgment, concluding that '. . . to represent consumer interests to the Commission and to advise the Commission on the formulation and implementation of policies and actions regarding consumer protection and information . . . ' (Article 2). 'all non-confidential information, whether supplied by a Community undertaking or an undertaking in a non-member country, . . . must be made available to the complainant requesting it', These do not cover the measures adopted by the Commission pursuant to anti- dumping legislation, which falls within the domain of commercial policy. it nevertheless made clear that the in- formation in question must be information 23. Moreover, the point that individual consumers are too weak to represent their interests before Community institutions does not in my view amount to a 'particular reason* for the purposes of Article 7(5) of 'which has been used by the Commission the basic regulation such as to entitle BEUC during its investigation and which has had a to be heard in this case: in my opinion, a decisive influence on its decision regarding 'particular reason' within the meaning of the anti-dumping duty' (paragraph 25). that provision means only a reason specific to the anti-dumping proceeding in question and not quite general reasons valid for any procedure, irrespective of its purpose. In the second place, the Timex judgment was not concerned with determining the parties entitled to access to the documents 24. Lastly, I am convinced that the right to in question but with identifying the 'parties be heard under Article 7(5) does not to the investigation' whose information, comprise a right of access to the complete once provided, must be disclosed to the non-confidential file held by the parties entitled to access and in particular to Commission, as the BEUC claims. In the the complainants: it was for the purpose of first place, even Article 7(4)(a), of which the ensuring that those complainants can put BEUC wishes to avail itself, only provides forward their views effectively that the for the disclosure of such of the Court held that they must also have access non-confidential documents as are relevant to information made available by traders to the defence of the interests of those established in a non-member country w h o concerned and are used by the Commission are not the subject of the investigation.

The same must apply a fortiori when the persons in question are not complainants 'although regard for the rights of the but merely interested parties (on the defence requires that the undertaking assumption that this is the case with the concerned [in that case, the undertakings BEUC). against which the proceeding had been initiated] shall have been enabled to make known effectively its point of view on the documents relied upon by the Commission in making the findings on which its decision 26. Furthermore, I consider that there is no is based, there are no provisions which reason for not applying those principles to a require the Commission to divulge the procedure of the type set up by Regulation contents of its files to the parties No 2423/88, which is usually set in motion concerned.' by complainants. Apart from the fact that, by virtue of a general principle which applies during the whole course of an administrative procedure, 8 interested parties Furthermore, it is clear from the judgment other than complainants cannot — any more of the Court of 17 November 1987 in than the complainants — have access to Joined Cases 142 and 156/84 {BAT and documents containing business secrets, it Reynolds v Commission [1987] ECR 4487) seems to me that, at the very least, it may be that an investigation carried out by the inferred from those principles that to deny Commission in fulfilment of its duty to an interested party access to all the ensure that the rules on competition are non-confidential documents belonging to observed does not constitute adversary the investigation, including those which may proceedings between the complainants, on have no bearing on that party's interests, is the one hand, and the companies against not a breach of any right of the defence or which the proceedings were commenced, on of any legitimate interests. the other (see paragraph 19). The Court went on to reiterate (paragraph 20) that

'to inspect the Commission's non-confidential file and information made available by any party in the anti-dumping proceeding concerning imports of audio 31. In order for the consultation of the cassettes and tapes from Japan, the Republic 'interested [parties] likely to be affected by of Korea and Hong Kong'. the result of the proceeding' to be as effective as possible, the Commission may indeed see fit to submit a document to them. That was what the Commission did in this case. In my opinion, however, it was acting by virtue of a discretion. 28. Since this case is a direct action and since the BEUC's conclusions are worded as set out above, it is not necessary for the Court to resolve the question whether an interested party having the right to be heard also has, by virtue of that right, the right to inspect certain specific documents on the 32. Incidentally, the complaint was Commission's file (as opposed to the probably the document on which a non-confidential file in its entirety). consumer-protection organization was best qualified to submit its comments. It is usually in the complaint that one finds the information on price charges and sales of products manufactured in the Community and on the Community's competitive 29. It is therefore only on a purely altern- standing in the market, which are the points ative basis that I would make these few on which the BEUC claimed in its observations. application (paragraphs 11 to 14) to be in a position to make significant contributions t o the investigation. It is a priori most unlikely that such an organization will be in a position to provide information on the existence of dumping, that is to say, o n 30. There must be a difference between the the question whether the export price t o parties referred to in Article 7 (4) (a) and the Community of the product under those referred to in Article 7(5). The former consideration is less than the normal value are the complainants and the importers and of the like product (Article 2(2) of the basic exporters manifestly concerned. These are regulation). Contrary to what the BEUC entitled to inspect only the information appears to believe (paragraph 13 of the relevant to the defence of their interests. It application), the comparison to be made follows, in my view, that the importers and does not in fact relate to the 'importer's exporters not manifestly concerned do not price' on the one hand and the 'Community have that right, no doubt because their producer's price' on the other.

Principle of good administration the files themselves are not necessarily the same. Moreover, the fact that the BEUC had been granted leave to intervene in 33. The BEUC has submitted alternatively support of the conclusions of the that a breach of the principle of good Commission in Joined Cases 228 and administration and of the principle requiring 229/82R and 228 and 229/82 {Ford v a coherent application of the rules of Commission [1982] ECR 3091, at p. 3097 Community law and procedure has been and [1984] ECR 1129, at p. 1137), which committed. concerned an application for the annulment of a decision of the Commission relating to a proceeding under Article 85 of the EEC 34. As far as the first principle is concerned, Treaty, does not necessarily mean that it it is sufficient to observe that the BEUC's should be allowed to intervene in a case argument is based on a premise whose arising from an anti-dumping proceeding. validity it has still not proved, even by The BEUC's role in the two types of pleading a fundamental principle of proceeding is not the same: it is certainly Community law, namely that it should have not excluded that, as a body representing the same right of access to information as the interests of consumers, the BEUC may exporters, importers and complainants be amongst the 'natural or legal persons because it has the same right to challenge who claim a legitimate interest' who are the outcome of the proceeding before the expressly authorized under Article 3(2)(b) Court. of Regulation N o 17, mentioned above, to submit a complaint to the Commission. In any case, the order by which the Court 35. In pleading the second principle the allowed the intervention in Joined Cases BEUC refers to the fact that in its capacity 228 and 229/82 is based, in particular, on of intervener in a case before the Court it the fact that it had already intervened in the could have access to the non-confidential earlier stages of the case. In doing so, it documents submitted by the main parties had, in my opinion, played a role thereto. However, I see nothing illogical or comparable to that of a complainant. incoherent in the fact that in two procedures of a different kind, conducted before two different institutions, one 36. The alternative submission put forward particular party does not enjoy the same by the BEUC cannot therefore be accepted right of access to the files, especially since either.