C-30/93

1. This reference for a preliminary ruling from the Finanzgericht (Finance Court) Munich concerns a Commission regulation imposing a provisional anti-dumping duty on imports of certain electronic microcir­ cuits. The Finanzgericht doubts the validity of the regulation, as amended by a corrigen­ dum published in the Official Journal after the regulation was issued, on the ground that the corrigendum may have altered the mate­ rial scope of the original text. The question 3. As appears from the facts stated in the referred for a preliminary ruling is set in the order for reference, these proceedings con­ context of a dispute between an importer cern the importation of finished DRAMs. ('the plaintiff') and the Hauptzollamt (Prin­ The Finanzgericht states, referring to the cipal Customs Office) München-Mitte (here­ Combined Nomenclature, that 'the inte­ inafter 'the Hauptzollamt'), concerning the grated circuits imported by the plaintiff collection of the security lodged by the indisputably fall within CN code plaintiff in respect of the provisional duty. 8542 11 43'. 3Under Commission Regulation

1 — Commission Regulation (EEC) No 165/90 of 23 Janu­ ary 1990 imposing a provisional anti-dumping duty on imports of certain types of electronic microcircuits known as DRAMs (dynamic random access memories) originating in 2. The DRAMs (dynamic random access Japan, accepting undertakings offered by certain exporters in connection with the anti-dumping proceeding concerning memories) contemplated by the disputed imports of these products and terminating the investigation in their respect (OJ 1990 L 20, p. 5). 2 — See the definition given in the footnote to recital (15) of Regu­ lation No 165/90. 3 — In the third paragraph of section II of the order for refer­ * Original language: German. ence, italics in the original.

4. The numbering of the tariff classification for goods of the type in question had changed shortly before disputed regulation 6. Similarly, recital (15) states: in question was issued. In the version of the Combined Nomenclature under Commis­ sion Regulation (EEC) No 3174/88, 5 they had been classified since 1 January 1989 under CN code 8542 11 71 with the heading 'Memories' (that expression being qualified 'Finished DRAMs fall within CN code by reference to the terms and descriptions ex 8542 11 71, wafers fall within CN code for the previous numbers). By contrast, the ex 8542 11 10; dice fall within CN code version of the Combined Nomenclature ex 8542 11 30 (chips).' 7 under Regulation No 2886/89, applicable from 1 January 1990, places finished DRAMs under three separate numbers, according to storage capacity. Those num­ bers are CN codes 8542 11 41 and 8542 11 45, and also CN code 7. Finally, Article 1 of the regulation reads as 8542 11 43, referred to above, which cover­ follows: ed the goods imported by the plaintiff. The latter version of the Combined Nomen­ clature also refers to one (and only one) fur­ ther type of 'random access memory' namely the 'static' type. Those memories are likewise classified into various subheadings according '1 . A provisional anti-dumping duty is to storage capacity. Finally, this version of hereby imposed on imports of certain types the Combined Nomenclature no longer con­ of microcircuits known as DRAMs (dynamic tains CN code 8542 11 71. random access memories) falling within CN

4 — OJ 1989 L 282, p. 1. 6 — My italics. 5 — OJ 1988 L 298, p. 1. 7 — My italics.

8. It was in relation to the latter regulation that the corrigendum referred to at the beginning of my Opinion was published in the Official Journal of the European Com- 9 11. By way of further background informa­ munities on 10 February 1990. It takes tion, the Finanzgericht also states that, when account of the CN code changes which took the goods were declared, the customs office effect on 1 January 1990, so that in recital (2) 10 retained DM 20 659.12 as security for the of the regulation at issue the date '1 Janu­ provisional anti-dumping duty. When the ary 1989' is replaced by '1 January 1990' and plaintiff objected, the Hauptzollamt pointed the subheading ex 8542 11 71 is replaced by out that the Commission, upon enquiry the subheadings 8542 11 41, 8542 11 43 from the Federal Minister of Finance, had and 8542 11 45. 11 The code numbers in 12 stated that the goods in dispute fell under recital (15) and Article 1(1) of the regula­ 13 Regulation No 165/90, because only Video- tion were changed in the same way.

14 _ Council Regulation (EEC) No 1361/90 (OJ 1990 L 131, 8 — My italics. p. 6). 9 _ OJ 1990 L 38, p. 44. 15 — Council Regulation (EEC) No 2112/90 of 23 July 1990, 10 — See paragraph 5 above. imposing a definitive anti-dumping duty on imports of cer­ tain types of electronic microcircuits known as DRAMs 11 — See paragraph 4 above. (dynamic random access memories) originating in Japan 12 — See paragraph 6 above. and collecting definitively the provisional duty (OJ 1990 13 — See paragraph 7 above. L 193, p . 1).

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Given that no new arguments were raised in suggest that the document does not consti­ this respect, the Council confirms these tute a legal measure for the purposes of Art­ determinations.' icle 189 of the Treaty. Furthermore, the man­ ner of publication of the corrigendum runs counter to the practice of the institutions of specifying the place and date of the measure, having it signed by the the Commissioner concerned and inserting in it a concluding provision. Finally, the 'corrigendum' does 16. The Finanzgericht did not adopt a posi­ not merely rectify clerical and translation tion on the plaintiff's argument. It was more errors, as is apparent from the extension of concerned to state that Regulation the category of products to the imported No 165/90, prior to the corrigendum, did articles, but also makes substantive changes not yet cover goods under CN to Regulation No 165/90. code 8542 11 43, and thus did not cover the goods imported by the plaintiff. Since Regu­ lation No 2112/90, which referred to that code number, could not have produced legal effects until 23 July 1990, the Hauptzollamt 19. In the opinion of the Finanzgericht an had no legal justification for imposing anti­ amending regulation was needed in order to dumping duty on the goods imported by the alter the substance of Regulation No 165/90 plaintiff as early as April 1990. to such an extent.

views known. In its opinion, the question classified under the code number given in must be answered in the affirmative. The Regulation No 165/90. absence of code number 8542 11 43 in the original text is a typical example of a 'falsa demonstratio' which could be clarified by a simple corrigendum without formal amend­ ment. The relevant goods are correctly and adequately described in Article 1(2) and 16 recital (15) of Regulation No 165/90, as they were in Regulation No 2112/90. A pro­ visional anti-dumping duty was therefore to 23. The plaintiff gave its views only at the be levied in accordance with Regulation hearing. In its view, the answer to the ques­ No 165/90 (in its original version), even tion referred to the Court should be that without regard to the aforesaid code num­ Video-RAMs under code number 8542 11 43 bers. are not covered by Regulation No 165/90. Whilst Video-RAMs fall within the abstract definition of DRAMs given in Regulation No 165/90, they are expressly described in recital (35) as not being like products and therefore exempted from provisional duty. The plaintiff appears to assume that this advantage was withdrawn from traders by the alteration of the code numbers, and argues that such a change could not be made by a simple corrigendum that was not in the nature of a regulation. In answer to a ques­ tion put by the Court, the plaintiff explained, through its managing director, the difference, in its view, between DRAMs and Video- RAMs. A Video-RAM was a 'DRAM com­ 1 22. The Commission goes on to state that bined with a SRAM' 8Video-RAMs were the inaccuracy of the code numbers origi­ primarily used in the area of image process­ nally given was also obvious. Anyone apply­ ing and graphics, where rapid access was the ing the law, and who had examined the most important factor. DRAMs could not Combined Nomenclature in the (applicable) achieve that, and were also unable to store version in Regulation No 2886/89, would data without regeneration. They were used have noticed it. In that regulation there primarily in cases where a background store was no longer any code number was required, as for example in the area of 'ex 8542 11 71', 17whilst the following code personal computers. The plaintiff also argued number 8542 11 72 concerned a completely that, contrary to recital (7) of Regulation different product. By contrast, the goods in No 2112/90, there are no such things as question in the version of the Combined VRAMs on a static RAM basis, and that Nomenclature (at the time no longer applica­ such VRAMs are not even technically feas­ ble) in Regulation No 3174/88 were in fact ible.

The arguments put forward by the plaintiff at the hearing and the scope of the question referred for a preliminary ruling 28. If the present case is examined in the light of those principles, it can be seen at

19 — See the judgment in Case C-364/92 SAT Fluggesellschaft v Eurocontrol [1994] ECR I-43, paragraph 9, and the judg­ 26. Since the Commission argued at the ment in Case 44/65 Hessische Knappschaft v Singer [1965] hearing that the arguments put forward by ECR 965, at p. 970. 20 — See the judgment in Case 247/86 Alsatel v Novasam [1988] the plaintiff at the hearing could not be taken ECR 5987, paragraph 8. into account in these proceedings, I must 21 — See the judgment in Alsatel v Novasam, referred to in the preceding footnote, paragraph 22. first examine the case-law on the relationship 22 — See the judgment in Case 17/81 Pabst & Richarz v Haupt- between preliminary references and observa­ zollamt Oldenburg [1982] ECR 1331, paragraphs 11 and 12.

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— the definition of the goods covered by the regulation has not been altered, and

30. Moreover, I do not think there can be any question in these proceedings of taking into consideration the particulars given by the plaintiff about the customs declaration, which diverge from the findings of the — the scope of the regulation by reference to the new code numbers is no different from that which would have resulted 23 — See paragraphs 16 and 19 above. from reference to the numbers under the

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previous nomenclature, had it still been Court has consistently held that, in inter­ in force when the regulation was issued. preting a provision of Community law, not only its wording, but also its context and the aims pursued by the legislation of which it 24 forms part, must be considered. Recourse to literal interpretation of a provision is par­ ticularly inappropriate where there is no 25 clearly formulated legislative text. The answer to the question referred to the Court

24 — For an example of this concerning an anti-dumping regula­ tion, see the Judgment in Case C-136/91 Findling Wälzlager v Hauptzollamt Karlsruhe [1993] ECR I-1793, para­ graph 11, and the references therein. 25 — See paragraph 14 of the judgment in Findling Wälzlager and, commenting on that judgment, the Opinion of Advo­ cate General Van Gerven in Case C-304/92 Lloyd-Textil v Hauptzollamt Bremen-Freihafen [1993] ECR I-7007, para- 33. I share the Commission's view that the graph 10. 26 — For an example of a case of that kind, see the judgment in regulation was to be interpreted in the sense Lloyd-Textil v Hauptzollamt Bremen-Freihafen [1993] given above before it was corrected. The ECR I-7007, especially paragraphs 12 and 13.

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35. Secondly, Article 1(2) of the regulation at Regulation No 165/90 was not to be under­ issue makes clear the Commission's inten­ stood as meaning that the goods which tion that DRAMs of 'all types and densities' under the new nomenclature were to be clas­ should be subject to the provisional anti­ sified under that number were to be dumping duty. The preamble to the regula­ exempted from the provisional duty. The tion gives an exhaustive definition of those corrigendum of 10 February 1990 did not, 2 products. 7Moreover, the Commission dealt therefore, alter the content of the original in the preamble with the various objections text and could not render the regulation in put forward as grounds for asserting that question invalid. some DRAMs should not be regarded as like 28 products, and rejected all of them.

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C — Conclusion

40. I therefore propose that the Court give the following answer to the question submitted by the Finanzgericht Munich:

Consideration of the question referred to the Court for a preliminary ruling has not disclosed any factor of such a kind as to affect the validity of Commission Regula­ tion No 165/90, as amended by the corrigendum of 10 February 1990.

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