C-358/89

1. In these proceedings, a French company, Extramet Industrie SA ('Extrámét'), seeks the annulment under the second paragraph 3. The Council has raised an objection of of Article 173 of the EEC Treaty of inadmissibility pursuant to Article 91(1) of Council Regulation No 2808/89, Official the Rules of Procedure on the ground that Journal 1989 L 271, p. 1 ('the contested Extramet does not have standing under regulation'). That measure imposed a Article 173 of the Treaty to challenge definitive anti-dumping duty on imports into the contested regulation. Observations the Community of calcium metal from supporting the Council's objection were China and the Soviet Union and provided lodged by Péchiney and by the Chambre for the definitive collection of the Syndicale. The Commission declined t o provisional anti-dumping duty imposed on express a view in writing on the admissibility such products by Commission Regulation of Extramet's claim, although at the hearing N o 707/89, Official Journal 1989 L 78, it argued that the application was inad- p. 10. In the alternative, Extramet seeks the missible. annulment of the 24th recital of the contested regulation, which records the Council's refusal to grant Extramet a special exemption from the duty imposed by the operative part of that regulation. An interim application by Extramet for the suspension of the contested regulation pending the 4. Although Extramet contends to the outcome of the main proceedings was contrary, its action is plainly, as the Court's rejected by order of the President dated 14 case-law stands at present, inadmissible. February 1990. However, it was decided that the admissi- bility of the action should be examined b y the Full Court separately from the substance of Extramet's claim. The case therefore presents the Court with an opportunity t o review its case-law on the admissibility of 2. The Council is supported by the actions for the annulment of regulations Commission, by a French company, imposing anti-dumping duties.

5. In July 1987, the Commission received a complaint from the Chambre Syndicale 8. The product which is the subject of the pursuant to Article 5 of Council Regulation contested regulation, calcium metal, is used N o 2423/88 on protection against dumped chiefly in the metallurgical industry. or subsidized imports from countries not Extramet processes it into granules of pure members of the European Economic calcium and for this purpose requires Community, Official Journal 1988 L 209, calcium of a very high level of purity. The p. 1 ('the basic regulation'). The complaint number of producers of calcium metal in the alleged that calcium metal originating in world is limited. As I have mentioned, China and the Soviet Union was being Péchiney is the only such producer in the dumped in the Community. It was made on Community. According to Extramet, behalf of Péchiney, the only Community Péchiney was unwilling to supply it with producer of calcium metal. calcium metal of sufficient quality when supplies were necessary for the purposes of Extramet's activities. Extramet therefore turned to producers of calcium metal outside the Community, in particular in 6. The Commission decided to commence China and in the Soviet Union. an investigation and it received represen- tations from, inter alia, the Chambre Syndicale and from Extramet. Extramet is the leading Community importer of calcium metal and is not associated with an exporter. 9. Extramet alleges that Péchiney was It also transforms the product and is unwilling to supply Extramet because Péchiney's principal competitor. Péchiney was trying to perfect its own process for producing calcium granules. Extramet has lodged a complaint with the Conseil Français de la Concurrence claiming that Péchiney's refusal to supply it 7. The Commission carried out inspections with calcium metal constitutes an abuse of a at the premises of Extramet and at those of dominant position within the meaning of Péchiney. O n 17 March 1989, it adopted Article 86 of the EEC Treaty. Regulation N o 707/89, already cited, which imposed a provisional anti-dumping duty on imports into the Community of calcium metal originating in China and the Article 173 of the Treaty Soviet Union. Péchiney and Extramet are both mentioned by name in the preamble to that regulation (see Recital 3). Each company subsequently made further repre- 10. In order to mount a successful sentations to the Commission and, on 18 challenge to a regulation imposing an anti- September 1989, the Council adopted the dumping duty in a direct action before the contested regulation. The preamble to that Court, a private applicant must first satisfy regulation contains a number of references the requirements as to standing laid down in to 'the' or 'an' importer. The Council the second paragraph of Article 173 of the accepts that the importer in question is Treaty. This provides:

'Any natural or legal person which fall within the scope of the regu- m a y . . . institute proceedings against a lation. The national authorities have no decision addressed to that person or against discretion in the matter: implementation by a decision which, although in the form of a the Member States is 'purely automatic and, regulation or a decision addressed to moreover, in pursuance not of intermediate another person, is of direct and individual national rules but of Community rules concern to the former'. alone': see Case 113/77 NTN Toyo Bearing Company v Council (one of the First Ball Bearings cases) [1979] ECR 1185, paragraph 11. Regulations imposing anti- dumping duties will consequently nearly always be of direct concern to exporters and Thus, according to Article 173, private to importers of the product in question. In applicants must overcome three hurdles in these proceedings, it has not been suggested order to establish that they have standing to that the contested regulation is not of direct bring an action for the annulment of a regu- concern to Extramet. lation imposing an anti-dumping duty. They must first show that the contested measure, although labelled a regulation, is in substance a decision. They must then show that the measure is of direct concern to them. Finally, they must show that it is of individual concern to them. 13. The question of individual concern is more problematic. The Court stated in Case 25/62 Pkumann v Commission [1963] ECR 95 that applicants were individually concerned by a measure when it affected them 'by reason of certain attributes which .11. The question of direct concern rarely are peculiar to them or by reason of circum- causes much difficulty in anti-dumping stances in which they are differentiated cases. The Court's case-law establishes that from all other persons . . . '. Although that a measure will be of direct concern to an test has been applied in many subsequent applicant within the meaning of Article 173 cases, the Court will need to decide in these if it is 'the direct cause of an effect' on the proceedings to what extent it is appropriate applicant: see the Opinion of Advocate in anti-dumping cases. General Warner in Case 100/74 CAM v Commission [1975] ECR 1393 at p. 1410, and the cases cited there. In other words, the measure in question must not depend for its effect on the exercise of a dis- cretionary power by a third party, unless it 14. The distinction between regulations and is obvious that any such power is bound to decisions is in principle clear, but, as I shall be exercised in a particular way. explain, it gives rise to particular problems in the anti-dumping context. According t o Article 189 of the Treaty, a regulation is of 'general application', whereas a decision is 'binding in its entirety upon those to whom 12. The effect of a regulation imposing an it is addressed'. The fundamental charac- anti-dumping duty is to require the customs teristic of a regulation is thus that it is authorities of the Member States to collect 'applicable to objectively determined situ- the duty on all imports into the Community ations' and involves 'legal consequences for

18. As far as complainants are concerned, the special position accorded to them by the The admissibility of actions for the basic regulation has proved significant. annulment of anti-dumping regulations Under Article 5(1), any body 'acting on behalf of a Community industry which considers itself injured or threatened by dumped or subsidized imports may lodge a 16. In its case-law, the Court has drawn a written complaint'. Complaints must contain distinction between producers, exporters 'evidence of the existence of dumping or and complainants on the one hand and subsidization and the injury resulting importers on the other. therefrom' (Article 5(2)). Following receipt of the complaint, the Commission may decide to commence an investigation. The complainant has the right to participate in (a) Producers and exporters any such investigation (Article 7). It may inspect information made available to the Commission by any other party to the inves- tigation (Article 7(4)(a)). 17. The Court stated in Joined Cases 239/82 and 275/82 Allied Corporation v Commission [1984] ECR 1005, paragraph 12, that 'measures imposing anti-dumping duties are liable to be of direct and indi- 19. There are various situations in which vidual concern to those producers and complainants and those they represent may exporters who are able to establish that they be dissatisfied with the outcome of anti- were identified in the measures adopted by dumping or anti-subsidy proceedings. In the Commission or the Council or were Case 191/82 Fediol v Commission [1983] concerned by the preliminary investigations'. ECR 2913, the applicant, an association The Court observed that producers and representing the Community oil processing

21. The respondent institutions raised an objection of inadmissibility, but the Court T h e regulation acknowledges that under- held that the applicant had standing to bring takings and associations of undertakings the action. The Court looked at the part injured by subsidization practices on the played by the applicant in the proceedings part of non-member countries have a before the Commission and at its position legitimate interest in the initiation of on the relevant market. It noted that the protective action by the Community; it must complaint which led to the opening of the therefore be acknowledged that they have a investigation owed its origin to the right of action within the framework of the complaint originally made by the applicant legal status which the regulation confers and that the applicant's views were heard upon them' (paragraph 31). during the investigation. The Court found that 'the conduct of the investigation procedure was largely determined by Timex's objections and the anti-dumping 20. Complainants may also be dissatisfied duty was fixed in the light of the effect of with the result of an investigation initiated the dumping on Timex' (paragraph 15). T h e by the Commission at their instigation. The contested regulation was thus 'based on the Court was confronted with a situation of applicant's own situation'. Accordingly, the this nature in Case 264/82 Timex v Council Court found the action admissible. and Commission [1985] ECR 849. The applicant was the leading manufacturer of mechanical watches and watch movements in the Community and the only manu- facturer of those products in the United 22. The case-law therefore suggests that Kingdom. It had lodged a complaint with annulment proceedings may be brought the Commission that competing products either by the complainant or by an under- from the Soviet Union were being dumped taking which, even though it could not in the Community. That complaint was lodge the complaint itself, played a leading

role in the initiation of the complaint. the products of one member of that group. Moreover, such proceedings may be The Court concluded that the contested brought either against a communication provisions amounted to a decision of direct addressed to the applicant stating that no and individual concern to the applicant. action is to be taken, or against a regulation imposing an anti-dumping duty. Although the point has not yet been expressly resolved, it would seem that a complainant trade association has the right to challenge such a regulation. If so, this would be of significance in relation to the test of 24. By contrast, in Case 307/81 Alusuisse v standing under Article 173 since, strictly Council and Commission [1982] ECR 3463, speaking, it is doubtful whether such an proceedings for the annulment of an anti- association would satisfy either the dumping regulation were brought by an requirement of direct concern or the independent importer, in other words by an requirement of individual concern (see, as importer which was not linked to a manu- regards direct concern, Case 135/81 facturing or exporting undertaking. The Groupement des Agences de Voyages v Court observed that an action brought by a Commission [1982] ECR 3799; and, as private party under Article 173 was inad- regards individual concern, the Court's missible if directed against a true regulation, statement in Joined Cases 16/62 and 17/62 that is a measure having general application. Producteurs de Fruits v Council [1962] ECR The Court found that the contested regu- 471 at p. 479, that 'one cannot accept the lations, which imposed provisional and principle that an association, in its capacity definitive anti-dumping duties respectively as the representative of a category of busi- on imports of orthoxylene originating in the nessmen, could be individually concerned by United States of America and Puerto Rico, a measure affecting the general interests of subject to exemptions for products exported that category'). by certain named undertakings, constituted, as far as independent importers were concerned, 'measures having general application . . . because they apply to objec- tively determined situations and entail legal effects for categories of persons regarded (c) Importers generally and in the abstract' (paragraph 9).

not cease to be a regulation because it is 'concerned by the effects of the contested possible to determine the number or even regulations only insofar as it comes objec- the identity of the persons to whom it tively within the scope of the provisions of applies at any given time as long as it is those regulations' (paragraph 15). Although established that such application takes effect Demufert acted as importing agent for one by virtue of an objective legal or factual of the exporting producers, the retail prices situation defined by the measure in relation charged by Demufert had not been used to to its purpose' (paragraph 11). The Court establish the existence of the dumping, concluded that the applicant was affected by which was based on the export prices the contested regulations solely in its charged by the American producers (see the capacity as an importer of orthoxylene. In First Ball Bearings cases). The Court relation to such importers, those regulations concluded that the application brought by constituted measures of general application. Demufert was inadmissible, but pointed out that Demufert could challenge the validity of the contested regulations in proceedings before the competent national courts if it was required to pay the duties in question.

I-2513

OPINION OF MR JACOBS —CASE C-358/89

anti-dumping duty when it was not the courts of the Member States against the existence of the dumping which had been decision of the national authorities to established on the basis of the importer's collect the duty. The validity of the resale prices but the anti-dumping duty regulation imposing the duty may be itself. However, the Court has been contested in the course of those steadfast in refusing to recognise the proceedings and the matter brought standing of independent importers, even before this Court under Article 177 of where they are the sole importer in a the Treaty. Member State of the product subject to the duty (see e.g. the orders in Sermes, Frimodt Pedersen and Nuova Ceam, already cited, and the judgment in Case C-157/87, one of the Electric Motors cases). Extranet's position under the Court's existing case-law

I-2514

EXTRAMET INDUSTRIE v COUNCIL

only Community producer of calcium metal of standing. Nor do I believe it is necessary, and Extramet's principal competitor, which in order to reach a satisfactory conclusion, has refused to supply Extramet itself and to make direct reference to the European which instigated the complaint that Convention on Human Rights, on which triggered the Commission's investigation. Extramet places some reliance in these For reasons which I will set out below, it is proceedings. The Convention and the laws doubtful whether proceedings in the of the Member States are, however, in- national courts, even combined with a directly relevant in that they support the reference to this Court, would be satis- existence of a general principle of law, factory in a case of this kind. To refuse namely the right to an effective judicial Extramet standing in these proceedings remedy: see Case 222/84 Johnston v Chief might therefore deprive it of any effective Constable of the RUC [1986] ECR 1651; remedy. Case 222/86 Unectefv Heylens [1987] ECR 4097. In my view, Article 173 should be interpreted so as to give effect to that principle.

The basis of the Court's existing case-law

(a) The requirement of a decision

I-2515

OPINION OF MR JACOBS — CASE C-358/89

give it. As I have explained, the fundamental only brought against, or is only held distinction between a regulation and a admissible in respect of, specific provisions decision is whether or not the measure is of of an anti-dumping measure. The Court general application. acknowledged in Producteurs de Fruits, already cited, at p. 479 that:

I-2516

EXTRAMET INDUSTRIE v COUNCIL

40. Another possibility was put forward by measure of general application and of an Advocate General Warner in the .First Ball individual measure'. Bearings cases (at p. 1246), namely that a regulation imposing an anti-dumping duty may be 'hybrid' in nature. According to this theory, a regulation may in respect of some people be 'a regulation and nothing but a 43. In Allied Corporation Advocate General regulation'. In respect of others, it may VerLoren van Themaat said (at p. 1041) nonetheless be a decision of direct and indi- that that statement did not apply in the vidual concern to them. dumping field, but the Court's case-law does not contain either an unequivocal endorsement or an express rejection of the hybridity theory. Perhaps the closest the Court has come to endorsing the theory is the Alusuisse case, where it stated that 'the 41. This theory, which was cited with regulations at issue constitute, as regards approval by Advocate General VerLoren independent importers who, in contrast to van Themaat in Allied Corporation (see exporters, are not expressly named in the p. 1041), goes further than the well estab- regulations, measures having general lished principle that a measure which, taken application within the meaning of the as a whole, constitutes a true regulation second paragraph of Article 189 of the may nonetheless contain individual Treaty, because they apply to objectively provisions which amount in substance to determined situations and entail legal effects decisions. It envisages that one and the same for categories of persons regarded generally provision may, in respect of some people, and in the abstract' (paragraph 9). constitute a genuine regulation whilst at the same time being in substance a decision in respect of others.

47. Only in cases where the Court decides that the application is inadmissible does it base its finding on the conclusion that the 45. In Timex, the Court adopted a slightly measure in question is in substance a regu- different approach. There, having concluded lation: see Sermes, Frimodt Pedersen, Nuova that the contested regulation was 'based on Ceam, already cited. Even here, there is the applicant's own situation', it stated: 'It evidence of an evolution in the Court's follows that the contested regulation approach: in Case C-157/87, one of the constitutes a decision which is of direct and Electric Motors cases, the Court held that individual concern to Timex . . . " (paragraph an application by an exclusive importer was 16). However, the Court did not explain inadmissible on the sole ground that the why it considered that the contested regu- applicant was not individually concerned: lation was in substance a decision and the see paragraph 12. formulation used in Timex does not appear in the later cases to which I have referred.

"Such a measure, even if it is one of a observed, the Court has shown that it does number of provisions having a legislative not regard itself as constrained by the strict function, individually concerns the persons terms of Article 173. This is evident from to whom it applies in that it affects their the cases in which the légitimation passive legal position because of a factual situation and active of the European Parliament in which differentiates them from all other annulment proceedings was upheld, persons and distinguishes them individually notwithstanding the absence of any just as in the case of the person addressed' reference to the European Parliament in (paragraph 19). that provision (see Case 294/83 Les Verts v Parliament [1986] ECR 1339; Case C-70788 Parliament v Council ('Chernobyl') [1990] ECR 1-2041 respectively). The judgment contains no discussion of the question of direct concern or of whether the contested measure was in substance a decision.

admissible. The question whether those 52. It is clearly desirable in the interests of provisions amounted in substance to the proper administration of the procedure decisions was not discussed in the judgment. laid down in the basic regulation that those who are particularly affected by regulations imposing anti-dumping duties should have 50. The objection to this approach is that it standing to challenge such regulations might be thought incompatible with the before the Court. In my view, such regu- terms of the second paragraph of Article lations may be challenged by anyone who is 173, which suggest that the requirement for directly and individually concerned by them. a decision is different from the requirement Whether the reason for this is that, once of individual concern. However, where it is individual concern has been established, the necessary to ensure, in accordance with contested measure is automatically to be Article 164 of the Treaty, that the law is considered a decision, or simply that it is

57. In so far as the earlier case-law on this (b) Direct and individual concern point suggests that applicants in anti- dumping cases must establish that the measure being challenged is in substance a decision, it is inconsistent with the Court's 54. In the present case, there is no doubt more recent judgments, which do not treat that Extramet is directly concerned by the the requirement of a decision as inde- contested regulation: once it was adopted, pendent of the requirement of individual the duty was automatically imposed and concern. In so far as it suggests that the collected (see the First Ball Bearings cases). procedure leading to the adoption of an The only outstanding issue is therefore anti-dumping regulation cannot affect the whether Extramet is individually concerned question of standing, it cannot be reconciled by that regulation. with the case-law on the standing of complainants. In Timex, an action brought by a complainant was held admissible because of the rights accorded to 55. The Council, supported by Péchiney complainants by the basic regulation and the and by the Chambre Syndicale, argues that role played by the applicant in the that question demands a negative answer. preliminary investigation. The Court was Extramet is affected by the contested regu- not deterred by the fact that the effect of lation, they say, solely in its capacity as an the contested regulation on the complainant importer of calcium metal. This criterion is was no different from its effect on other not enough to set Extramet apart from undertakings who happened to be carrying anyone else who happens to carry on the on the same commercial activity or who same activity or who might do so in the might do so in the future. It is not easy to

"It is in the interests of a satisfactory admin- 60. The Court took a similar approach in istration of justice and of the proper the context of State aid in Case 169/84 application of Articles 85 and 86 that Cofazv Commission [1986] ECR 391. There natural or legal persons who are entitled, the applicant, a French company, sought the pursuant to Article 3(2)(b) of Regulation annulment of a Commission decision N o 17, to request the Commission to find addressed to the Netherlands Government. an infringement of Articles 85 and 86 The contested decision terminated a should be able, if their request is not procedure which had been initiated under complied with either wholly or in part, to Article 93(2) of the Treaty, pursuant to a institute proceedings in order to protect complaint submitted on behalf of the their legitimate interests. applicant, in respect of the preferential tariff system enjoyed by certain users of natural gas in the Netherlands.

In those circumstances the applicant must be considered to be directly and individually concerned, within the meaning of the second paragraph of Article 173, by the 61. The Court reiterated, citing the first contested decision and the application is Metro case, Fediol and Demo-Studio accordingly admissible' (paragraph 13). Schmidt, that:

I-2521

OPINION OF MR JACOBS —CASE C-358/89

In the Metro cases and in Demo-Studio Schmidt, the actions were held admissible solely because of the part played by the applicants The Court noted that, in Timex, it had in the procedure leading to the adoption of pointed out that it was necessary in this those measures. The same is true of Timex. respect to look at the part played by the The fact that the applicant in that case applicant in the administrative procedure happened to have complained to the leading to the adoption of the contested Commission about the practices which were measure.

62. The Court concluded that the same (Allied Corporation, paragraph 12). considerations applied 'to undertakings Exporters in this category will not neces- which had played a comparable role in the sarily be affected by anti-dumping regu- procedure referred to in Article 93 of the lations any differently from other exporters EEC Treaty provided, however, that their who were not so identified or concerned. position on the market is significantly affected by the aid which is the subject of the contested decision' (paragraph 25).

duty. This is particularly likely to have 63. The Court accepted that the applicants occurred where the importer was associated in the Metro cases, in Demo-Studio Schmidt with an exporter.

65. However, the fact that the Commission contested regulation does not expressly has taken account of an importer's resale mention Extramet, much of the latter regu- prices does not in itself establish that that lation's preamble is concerned with refuting importer is affected more immediately than, claims made by an unnamed importer, or in a qualitatively different way from, which it is not disputed is none other than other importers whose resale prices have not Extramet. It is also clear, to paraphrase the been taken into account. In practice, the language of the Court in Cofaz, that effect on the first category of importers may Extramet's position on the relevant market even be less acute than the effect on the has been significantly affected by the second category, because the Commission contested regulation. will have taken account of the specific circumstances of members of the first category. The fact that an importer's resale prices have been used by the Commission to establish the existence of dumping or to calculate the duty may therefore be seen 68. I consider that an undertaking should in simply as a particular form of involvement principle have standing to challenge an anti- in the procedure leading to the imposition dumping regulation where it is identified, of the duty. It should not in my view confer even if only implicitly, by the regulation or greater rights on such importers than those where it played an important part in the enjoyed by importers who have been procedure leading to the adoption of the involved in the procedure in other ways. regulation, at least where its position on the relevant market has been significantly affected. There is, however, one final issue I must consider before reaching a conclusion about the admissibility of Extramet's claim, namely the question of remedies before the 66. These considerations suggest that there national courts. is no logical basis for distinguishing rigidly in this respect between producers, exporters, complainants and importers. The Court should in my view accept that similar criteria should be applied in determining the admissibility of actions brought by under- (c) Remedies before the national courts takings in each of these categories. There is a particularly strong case for acknowledging the admissibility of an action brought by any undertaking whose participation in the proceedings before the Commission can be regarded as having affected their outcome. 69. In order to refute the argument that to refuse standing to independent importers would deny them access to any form of judicial review, the Court pointed out in Alumisse and Allied Corporation that the applicant importer was free to challenge the 67. As far as Extramet is concerned, it is collection of the duty in the courts of a clear from the preamble to the contested Member State, before which the validity of regulation that Extramet made full use of the regulation imposing the duty could be the rights conferred on it as an interested challenged and a reference made to this party by the basic regulation. Although, Court under Article 177. The question unlike the provisional regulation, the therefore arises whether the existence of

70. Access to the national courts is not, of course, confined to independent importers 72. Proceedings in the national courts, with but is also available to importers who the additional stage of a reference under presently enjoy standing under the Court's Article 177, are likely to involve substantial case-law. It is clearly not therefore a extra delays and costs. In addition, the decisive factor. Moreover, as Advocate national courts have no jurisdiction to General Reischl pointed out in Case 138/79 declare the Community regulations invalid, Roquette Frères v Council [1980] ECR 3333 since, according to Case 314/85 Foto-Frost at p. 3367, Article 173 contains no [1987] ECR 4199, a ruling to that effect can suggestion that the availability of the action be given only by this Court. The potential for annulment depends on the absence of an for delay inherent in proceedings brought alternative means of redress in the national before domestic courts, with the possibility courts of the Member States. If it did, the of appeals within the national system, makes result would be far from satisfactory, for the it likely that interim measures will be existence and scope of any domestic remedy necessary in anti-dumping cases, but the will depend on national law. national courts do not seem the appropriate forum for granting such measures. Although national courts have jurisdiction to suspend a national measure based on a Community regulation pending a ruling from this Court on the validity of the regulation (see Joined 71. In any event, as an alternative to a Cases C-143/88 and C-92/89 Zuckerfabrik direct action before this Court, proceedings Süderdithmarschen [1991] ECR 1-415), the before the national courts present serious exercise of that jurisdiction is subject to a disadvantages to an importer in the anti- number of conditions and is to some extent dumping context. National courts, without dependent on the discretion of national special expertise in the subject and without courts. In any event, interim measures the benefit of the participation of the awarded by a national court would be Council and Commission, are not the most confined to the Member State in question. appropriate forum for dealing with chal- This might make it necessary for importers lenges to anti-dumping regulations. Their to bring proceedings in more than one decisions are likely to lack the uniform Member State and would prejudice the character which could be achieved by a uniform application of Community law. decision of this Court, or of a specialised Community tribunal such as the Court of First Instance if it were to be given juris- diction in this field. Even with the use of Article 177, the decision of this Court is available only on the specific points which 73. Moreover, a reference from a national are referred to it. It is true that this Court court on the validity of a regulation does has the advantage, in deciding such cases, of not always give the Court as full an oppor- obtaining the views of the Community tunity to investigate the matter as a direct

(b) that it participated in the preliminary investigations in a way which may be regarded as having affected their outcome, at least where its position on the market is significantly affected by 74. A reference of such generality would in the measure. most cases seriously hamper the Court in its task, for the Council, the Commission and the Member States, which are entitled to submit written observations, would be unaware of the issues they had to address. The Court should in my view clarify the In the particular circumstances of the Sermes case-law by expressly acknowledging that, case, this problem was less acute, as the at least in the anti-dumping field, it is not validity of the contested regulation was also necessary for an applicant, in order to the subject of a series of direct actions establish standing, to address the additional (already cited as the Electric Motors cases). question of whether the contested measure In the normal case, however, and even if the constitutes in substance a regulation or a issues were fully identified in the order for decision. reference, proceedings under Article 177 might not provide an effective remedy in anti-dumping cases because of the nature of the procedure. Where complex issues of law and of fact are raised, only a full exchange 76. This approach accords with the purpose of pleadings, as in a direct action, is likely of Article 173, which is designed to enable to be adequate, if those issues are to be persons to challenge measures having a properly considered. Moreover, it is only in particular impact on them, while limiting the a direct action before the Court that all the right to challenge regulations so that there parties concerned by the imposition of the is no risk of their annulment being sought duty, including the Community industry, by an unlimited class of applicants. I am will be able to participate. encouraged by the fact that it is consistent

with that put forward by Advocate General reserved for its claim that the 24th recital is Mischo in the Nashua case (already cited), void. That recital reads as follows: where he said, at paragraph 33 of his Opinion, that 'the determining factor with regard to the admissibility of applications in 'One independent importer has also anti-dumping cases is not so much the requested a special exemption in the event applicant's status as a producer or exporter, that a decision should be taken to impose or as a related importer, but rather the definitive duties. The Council is unable to manner in which its actual situation was grant such a request from an independent taken into account'. Although the Court importer, when it is clear that it is in the upheld the admissibility of the application in Community's interest that action should be that case, it was able to avoid defining the taken to prevent the injurious effect of applicant as an exporter or as an importer dumped Chinese and Soviet imports and because of its special relationship with the since this objective would be rendered manufacturer of the product in question nugatory if such an exemption were to be (see also the Gestetner case, already cited). made and which would also be difficult to It did not therefore consider the extent to defend on the grounds of equality of which an importer in the strict sense would treatment of all importers'. have had standing to challenge the contested measure. In the present case, that question cannot be avoided. 79. It is doubtful whether a recital can ever in itself be the subject of proceedings for annulment, since recitals do not produce 77. I therefore reach the conclusion that any legal effects on private parties but Extramet, which satisfies both the merely explain the operative part of the conditions suggested above, has standing to measure of which they form part. As a challenge the contested regulation under the result, the 24th recital of the contested second paragraph of Article 173. regulation is not itself susceptible to review under Article 173. Extramet's challenge to that recital must therefore be regarded as a 78. Should the Court decide to follow its challenge to the contested regulation in so existing case-law and declare Extramet's far as it refused the exemption sought. As application for the annulment of the such, it must in my view stand or fall with contested regulation as a whole inad- Extramet's challenge to the contested regu- missible, the same fate must in my view be lation as a whole.