T-162/94

JUDGMENT OF 5. 6. 1996 — CASE T-162/94

J U D G M E N T O F T H E C O U R T O F FIRST INSTANCE (Second Chamber, Extended Composition) 5 June 1996 *

In Case T-162/94,

NMB France SARL, a company governed by French law, whose registered office is in Argenteuil (France),

NMB-Minebea-GmbH, a company governed by German law, whose registered office is in Langen (Germany),

NMB (UK) Ltd, a company governed by English law, whose registered office is in Bracknell, Berkshire (United Kingdom),

V

Commission of the European Communities, represented by Eric L. White, of its Legal Service, acting as Agent, assisted by Claus-Michael Happe, a national civil servant seconded to the Commission's Legal Service, with an address for service in Luxembourg at the office of Carlos Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,

defendants,

supported by

Federation of European Bearing Manufacturers' Associations (FEBMA), whose headquarters is in Frankfurt (Germany), represented by Dietrich Ehle and Volker Schiller, Rechtsanwälte, Cologne, with an address for service in Luxembourg at the Chambers of Arendt & Medernach, 8-10 Rue Mathias Hardt,

interveners,

having regard to the written procedure and further to the hearing on 6 December 1995,

gives the following

Judgment

Legal background, facts and written procedure

1 The Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade (GATT) (OJ 1980 L 71, p. 90, hereinafter 'the 1979 Anti- Dumping Code'), approved on behalf of the Community by Council Decision 80/271/EEC of 10 December 1979 concerning the conclusion of the multilateral agreements resulting from the 1973 to 1979 trade negotiations (OJ 1980 L 71, p. 1), provided, at Article 8(3):

'The amount of the anti-dumping duty must not exceed the margin of dumping as established under Article 2 .... Therefore, if subsequent to the application of the anti-dumping duty it is found that the duty so collected exceeds the actual dump- ing margin the amount in excess of the margin shall be reimbursed as quickly as possible.'

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4 According to Article 16(1) of the basic regulation,

'Where an importer can show that the duty collected exceeds the actual dumping margin ... the excess amount shall be reimbursed. This amount shall be calculated in relation to the changes which have occurred in the dumping margin ... All refund calculations shall be made in accordance with the provisions of Articles 2 or 3 and shall be based, as far as possible, on the same method applied in the original inves- tigation ...'.

5 The dumping margin to be taken into account for the purposes of applying Article 16(1) was defined in Article 2(14)(a) of the basic regulation as 'the amount by which the normal value exceeds the export price'.

6 As regards determination of the export price, Article 2(8)(b) of the basic regulation provided:

8 By virtue of Council Regulation (EEC) N o 2089/84 of 19 July 1984 imposing a definitive anti-dumping duty on imports of certain ball-bearings originating in Japan and Singapore (OJ 1984 L 193, p. 1), imports by the European subsidiaries of Minebea of ball-bearings manufactured in Singapore by inter alia the Minebea Group were subjected to an anti-dumping duty of 33.89% of the net price, free- at-Community-frontier, before duty.

9 After paying that duty, the applicants, with the exception of N M B France, submit­ ted several applications for reimbursements under Article 16 of Regulation N o 2176/84. The Commission partially accepted and partially rejected the applications in respect of imports in 1985 and 1986, the partial rejections being based on appli­ cation of the 'duty as a cost' rule (the same rule, in Regulation N o 2176/84, as that contained in Regulation N o 2423/88 — see above, paragraph 6, at (ii)); when

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calculating the constructed export price, the Commission deducted the anti­ dumping duties paid by the three applicants.

10 The latter, considering that the 'duty as a cost' rule was contrary to superior rules of law, brought an action before the Court of Justice for annulment of the deci­ sions partially rejecting their applications for refunds.

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the Court held that in both cases the purpose is to establish the actual dumping margin. The Court also stated that the alleged difference in the treatment of asso­ ciated importers and independent importers was justified by the difference in their respective situations in relation to the dumping and did not therefore constitute discrimination. It also found that there was no inconsistency between Regulation N o 2176/84 and the 1979 Anti-Dumping Code. Finally, it also rejected the allega­ tions of breach of the principle of proportionality and misuse of powers.

13 The applicants, whose actions were thus dismissed, disagreed with those findings. As regards the imports in the period from January 1987 to September 1991 inclu­ sive, each of the applicants, including N M B France, lodged, pursuant to Article 16 of the basic regulation and Article 16 of the earlier Regulation N o 2176/84, fresh applications for refunds of the anti-dumping duty paid during the abovementioned period.

17 Upon hearing the report of the Judge-Rapporteur, the Court of First Instance (First Chamber, Extended Composition) adopted measures of organization of the pro- cedure and called on the parties and — pursuant to the second paragraph of Article 21 of the Statute of the Court of Justice of the European Community — the Coun- cil to produce certain documents and to reply to a number of questions. O n 10 March 1995 the applicants submitted their replies. As regards the economic aspects of the dispute, in particular, first, the extent to which the applicants effected a 'sin- gle jump' or a 'double jump' or something between the two, and, secondly, the extent to which their resale prices and onward selling prices in the Community were actually increased, the applicants produced computer lists in which three invoices were chosen to show the calculation method used.

18 By order of 12 June 1995, the President of the First Chamber, Extended Compo- sition, granted a request for confidential treatment, vis-à-vis FEBMA, made by the applicants regarding certain parts of their replies to the questions put by the Court and certain parts of the Commission's observations on those replies. By decision of the Court of First Instance of 19 September 1995 the Judge-Rapporteur was assigned to the Second Chamber, Extended Composition, and the case was there- fore allocated to that Chamber.

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21 Article 11(10) of Regulation N o 3283/94 reads as follows:

'In any investigation carried out pursuant to this article, the Commission shall examine the reliability of export prices in accordance with Article 2. However, where it is decided to construct the export price in accordance with Article 2(9), it shall calculate the export price with no deduction for the amount of anti-dumping duties paid when conclusive evidence is provided that the duty is duly reflected in resale prices and the subsequent selling prices in the Community.'

22 Upon hearing the report of the Judge-Rapporteur, the Court of First Instance (Sec- ond Chamber, Extended Composition) decided, on 10 October 1995, to open the oral procedure without any preparatory inquiry. However, it put to the parties fur- ther questions concerning the new 1994 rules, to which they gave their replies at the hearing.

23 The parties presented oral argument and answered questions put to them by the Court at the hearing on 6 December 1995.

— take such other steps as justice may require;

— order the Commission to pay the costs;

— order FEBMA, the intervener supporting the Commission, to bear the costs of its intervention.

25 The Commission contends that the Court of First Instance should:

— dismiss the action as inadmissible or, in the alternative, unfounded;

— order the applicants to pay the costs.

Arguments of the parties

27 Without raising a formal objection of inadmissibility, the Commission submits that the bringing of this action constitutes an abuse of procedure. Although purporting to contest measures different from those at issue in Case C-188/88 N MB and Oth­ ers ν Commission, the applicants have not, on their own admission, put forward in this case any argument not already raised in that case. They merely challenge the judgment in Case C-l 88/88 N MB and Others ν Commission. Consequently, the Commission considers that the Court should dismiss this action, if not on the ground of inadmissibility then on the ground that no argument has been put for­ ward that was not put forward in Case C-188/88 Ν MB and Others ν Commission and there is therefore no basis for challenging that judgment. It adds that if this action were declared admissible, the applicants would be able to avoid the strict conditions laid down for the extraordinary remedy of applying for revision of a judgment under Article 41 of the Statute of the Court of Justice of the European Community.

28 The Commission submits, as a matter of principle, that a decision by the Court to overrule a previous judgment is a serious matter which should be taken only in exceptional circumstances. N o t only would such a decision signify that irreparable injustice had been done in the previous case and in many other similar cases but it would also put into question the very authority of the Court's judgments and would be liable to undermine the stability and certainty of the law and encourage innumerable attempts to have decided cases reconsidered.

32 The applicants state in reply that the purpose of their action is to secure the annul­ ment of Commission Decisions 92/332/EEC to 92/335/EEC, which are of direct and individual concern to them in that they were denied reimbursement of the anti-dumping duties collected between 1987 and 1991 to which they consider them­ selves duly entitled. Those decisions were based on fundamentally illegal consid­ erations. The applicants therefore consider that they are entitled to request judicial review, particularly since there is no rule that an application is rendered inadmis­ sible on the ground that, if an earlier judgment were followed, the action would be held unfounded.

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33 Although they concede that the reasoning set forth in their application is similar in several respects to that put forward in Case C-188/88 NMB and Others ν Com­ mission, the applicants maintain that the bringing of this action is justified by the extraordinary unfairness of the contested decisions, by the fact that there are a number of lacunae in the judgment in Case C-l 88/88, and by the initiation of pro­ ceedings within GATT which may lead to the condemnation of the Community's practice. For those reasons, the applicants consider that the Court should give fresh attention to the points raised in the present action.

34 Still with respect to GATT, the applicants state that the 1992 Uruguay Round nego­ tiations led to an informal agreement in the form of a set of draft rules, the 'Dunkel draft'. Those rules are likely to amend the Anti-Dumping Code in a manner which confirms their viewpoint. Article 9.3.3 of that document expressly provides for cal­ culation of the export price without any deduction of the anti-dumping duties paid.

37 Consequently, it is necessary to consider in this case whether the status of res judi­ cata of the judgment in Case C-188/88 NMB and Others ν Commission, in which the Court dismissed as unfounded the action brought by N M B (Deutschland) G m b H , N M B Italia Srl and N M B (UK) Ltd, is such as to bar the admissibility of the present action. It is settled case-law that this can be the case only if the pro­ ceedings disposed of by the judgment in Case C-l88/88 NMB and Others ν Com­ mission were between the same parties, had the same purpose and were based on the same submissions as the present case (judgment of the Court of Justice in Joined Cases 172/83 and 226/83 Hoogovens Groep ν Commission [1985] E C R 2831, paragraph 9, the order of the Court of Justice in Joined Cases 159/84, 267/84, 12/85 and 264/85 Ainsworth and Others ν Commission [1987] E C R 1579, paragraph 3, the judgment of the Court of Justice in Joined Cases 358/85 and 51/86 France ν Parliament [1988] E C R 4821, paragraph 12, and the judgment of the Court of First Instance in Case T-28/89 Maindiaux and Others ν ESC [1990] ECR II-59, para­ graph 23), those conditions necessarily being cumulative.

38 The application in Case C-l 88/88 NMB and Others ν Commission sought the annulment of Decisions 88/327/EEC, 88/328/EEC and 88/329/EEC (OJ 1988 L 148, pp. 26, 28 and 31) by which the Commission had rejected requests for reim­ bursements in an aggregate amount of about E C U 2.9 million in respect of anti­ dumping duties collected in 1985 and 1986 on imports of certain ball-bearings, whereas the present action concerns different, later decisions relating to other quan­ tities and import periods and reimbursements of different amounts. As the Court of First Instance held in Maindiaux and Others, cited above (paragraph 23), the act whose annulment is sought is an essential element of the subject-matter of the action. Consequently, since their action is directed against acts other than those at issue in Case C-188/88, it cannot be considered that the two actions have the same

41 It follows that this action is entirely admissible and that the Court of First Instance must therefore examine its merits. In so doing, it should take account simulta­ neously of the judgment in Case C-188/88 NMB and Others ν Commission and of the new issues raised by these proceedings (see the judgment of the Court of Jus­ tice in Joined Cases 311/81 and 30/82 and Case 136/82 Klöckner-Werke ν Commis­ sion [1983] E C R 1549 and 1599 respectively, paragraph 5).

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The subject-matter of the action

45 It follows that, as regards the three applicants other than N M B France, the action has also become devoid of purpose in so far as it relates to the non-reimbursement of anti-dumping duties collected in respect of imports made in the period from

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21 September 1990 to September 1991. Consequently, it is also unnecessary to give judgment in these proceedings as far as that period is concerned.

46 It follows that the remaining forms of order sought by those three applicants now relate only to Decisions 92/333, 92/334 and 92/335 in so far as they refuse to refund to the applicants anti-dumping duties collected from January 1987 to 20 September 1990 on imports of ball-bearings from Singapore.

The substance

49 The Court of First Instance invited the applicants to produce specific examples of the calculation method used in the reimbursement procedure, to enable it to appraise the way in which the contested rule operates. The applicants furnished that information but did not supply the Court with all the figures on which the con­ tested decisions were based. In reply to a question on this point, they stated at the hearing that it would be extremely difficult to supply precise figures and give a general picture. Since the anti-dumping duties were imposed on imports of ball­ bearings with effect from 1984 and about 25 million such products had been sold since then, the production of precise figures would be a disproportionate task since they would have to be examined not invoice by invoice but by reference to tens of thousands of computer print-outs. The Commission also drew attention at the hearing to the complexity of the task and the volume of the calculations.

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52 The Court is not therefore in a position to assess, as part of its review of legality, the real impact of the contested 'duty as a cost' rule on the possibilities of disposal of the products, or the applicants' profit margins and general competitive situation. The Court's review will thus be limited to considering solely a question of law which the applicants have separated from the economic context of the case (see the judgment in Case T-51/89 Tetra Pak ν Commission [1990] E C R II-309, paragraphs 11 to 13).

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paragraph 6), is to ensure that the burdens that commercial operators are required to bear are no greater than is required to achieve the aim which the authorities are to accomplish.

55 As regards the Commission's explanation that the difference of treatment is justi­ fied by the fact that an associated importer, being a dumping party, has every incen­ tive not to raise his prices, or, if he does raise his prices, to pass on to his customer the benefit of the reimbursement of anti-dumping duty, the applicants consider that that reasoning amounts to an irrebuttable presumption that, if an associated importer obtains a refund, he will inevitably pass it on to the original customer, thereby granting what amounts to a disguised rebate with respect to the original price.

56 The applicants add that many products, including ball-bearings in particular, are sold in a manner which, because of the thousands of sales made and individual invoices issued, makes passing on refunds to customers as rebates on the original sale price impracticable. That difficulty is increased by the considerable period of time which generally passes between the sale to the customer and the receipt of the rebate. In those circumstances, it is pointless to offer contingent rebates to custom­ ers in the form of a hypothetical future reimbursement. Indeed, if such rebates were made, it would be more appropriate to consider them as rebates in respect of sales made at the time the rebates were made, not in respect of the original sales under­ lying the refund requests made years previously.

58 The applicants stated in particular that new circumstances relevant to the determi­ nation of this dispute have emerged since the entry into force of Regulation N o 3283/94. The new Community anti-dumping rules have abandoned the old prac­ tice of requiring a 'double jump' before granting full reimbursement of the anti­ dumping duties paid. The implementation of this new rule allowing full reimburse­ ments to be granted to associated importers who demonstrate a 'single jump' shows that the arguments put forward in support of the Commission's earlier practice were unfounded. The new rules thus confirm that the Commission's earlier fears concerning disguised rebates were exaggerated and that the Commission imposed a disproportionate restraint on the applicants by refusing to reimburse duties except where there was a 'double jump'. At the hearing, the applicants added that Article 9.3.3 of the new 1994 Anti-Dumping Code shows, of itself, that the contested rule applied by the Commission is disproportionate.

59 The Commission points out that in Case C-l 88/88 N MB and Others ν Commis­ sion the Court expressly referred to the principle of proportionality in paragraph 51 of its judgment and rejected the arguments based on that principle. In so doing, the Court took the view that, because the contested regulation did not require a price rise in excess of the actual dumping margin, the claim that it was dispropor­ tionate failed. As regards the possible risk of the associated importer passing on the reimbursed anti-dumping duties to its customers by means of disguised rebates, the Commission did not advance this argument in its defence, although it was put for­ ward in Case C-188/88 (see the Report for the Hearing, [1992] E C R I-1691, at 1-1699).

63 The Commission then took the view, with the support of FEBMA, that Articles 13(11) and 14 of the basic regulation are not relevant to this case since they pursue purposes different from those of the provisions on reimbursements. Those

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provisions are designed to allow the permanent adaptation of anti-dumping mea­ sures to changes in circumstances after anti-dumping measures have been imposed, whereas refund procedures can only look to the past and serve different purposes.

64 As regards the acceptance of undertakings under Article 10 of the basic regulation, being a less burdensome method, the Commission observed that an undertaking not to dump in the future, subject to penalties, would always be less burdensome for exporters and their related importers than the imposition of anti-dumping duties. However, that solution was not adopted in the Community legislation as a solution to dumping, an approach endorsed by the Court (Joined Cases C-133/87 and C-150/87 Nashua Corporation and Others ν Commission and Council [1990] ECR I-719, paragraph 45, and Case C-156/87 Gestetner Holdings ν Council and Commission [1990] E C R I-781, paragraph 70).

65 As regards the new anti-dumping regulation, Regulation N o 3283/94, the Com­ mission stated that the applicants are wrong to state that that regulation abandons the former practice of requiring a so-called double jump before granting a full refund. The new regulation merely lays down certain more precise rules in that respect and provides that in some cases a 'double jump' will not be necessary. The Commission also rejects the applicants' reasoning that a refinement in the legisla­ tive provisions demonstrates that the previous provisions were not indispensable and were therefore disproportionate.

67 In response to the Commission's final defence submissions (see paragraphs 61 and 62 above), the applicants stated at the hearing that the purpose of anti-dumping duties is not to penalize but to correct market behaviour. The duties constitute not a definitive fine but a neutral corrective factor which should be refunded in the event that the dumping has been eliminated. It is not therefore legitimate for the Community to hold on to money which should be paid to the associated import­ ers once the dumping margin has been eliminated. As far as proportionality is con­ cerned, it is necessary to assess the legitimate goals of the legislation in force. The legitimate goal that the Community can pursue is ensuring that prices in the Com­ munity go up by the amount of the dumping margin found and ensuring that there is no evasion of the effectiveness of this protective measure. Any measure going further than ensuring that dumping has in fact been eliminated is disproportionate.

68 In response to the measures of organization of procedure adopted by the Court, FEBMA stated that the companies belonging to the Minebea group, including the applicants, have, as regards certain types of ball-bearings, practically negated the anti-dumping measures in that the duties imposed have not been passed on in the resale prices and that price undercutting in the Community market remains unchanged. That shows that the applicants do not really feel affected by the requirement of the 'double jump'.

Findings of the Court

— The limits of the review by the Community judicature of the exercise of the Council's discretion

71 The basic anti-dumping regulation was adopted by the Council on the basis of Article 113 of the Treaty, that is to say as part of common commercial policy. As the Court of First Instance has already pointed out in its judgment in Case T-167/94 Nolle ν Council and Commission [1995] E C R II-2589, paragraph 85, the common commercial policy is characterized by a wide discretion enjoyed by the Community legislature, which is necessary for its implementation. That discretion necessarily extends to the adoption and amendment of the basic regulation at issue in this case. Faced with several options for implementation (within the limits laid down by the Anti-Dumping Code — see paragraph 99 et seq. below) of anti­ dumping action, the Council must, in drawing up that regulation, mediate between divergent interests.

72 The considerable latitude enjoyed by the Community legislature in this area cor­ responds to the latitude which, according to settled case-law, the Community insti­ tutions have when adopting specific anti-dumping measures pursuant to basic reg­ ulations (see, for example, the judgments of the Court of Justice in Case 191/82

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FEDIOL ν Commission [1983] E C R 2913, paragraph 30, Case 264/82 Timex ν Council and Commission [1985] E C R 849, paragraph 16, Case C-156/87 Gestetner Holdings ν Council and Commission, cited above, paragraph 63, Case C-179/87 Sharp Corporation ν Council [1992] E C R 1-1635, paragraph 58, and the judgment of the Court of First Instance in Joined Cases T-163/94 and T-165/94 NTN Cor­ poration and Koyo Seiko ν Council [1995] E C R II-1381, paragraphs 70 and 113). The Court of Justice has held, in particular, that the choice between the different methods of calculation indicated in a basic regulation requires an appraisal of com­ plex economic situations, which means that the review of that appraisal by the Community judicature is correspondingly limited (Case 255/84 Nachi Fujikoshi ν Council [1987] E C R 1861, paragraph 21).

Case C-188/88 NMB and Others ν Commission. As a result, therefore, under the contested rule an associated importer has no right to full reimbursement of the anti-dumping duties paid unless, first, he has brought to an end the original dump­ ing that gave rise to the imposition of anti-dumping duties and, secondly, passed on the amount of those duties. However, the elimination of dumping and the pass­ ing on of the duties must have been brought about through a reduction of the nor­ mal value, an increase of selling prices in the Community, a reduction in marketing costs in the Community or a combination of those three factors.

76 As to the aim of this system, it must be observed, first, that the general purpose of anti-dumping measures is to protect Community industry against the adverse effects of dumping. It is against this background that the provisions on the reim­ bursement of anti-dumping duties pursue the specific objective of reimbursing those duties to the extent to which they were collected in excess of the actual dumping margin, since the Community industry would otherwise be afforded pro­ tection exceeding, to that extent, the dumping actually practised.

77 In that connection, it must be borne in mind that, in the proceedings before this Court, the Commission expressly abandoned the argument — which it had advanced in Case C-188/88 NMB and Others ν Commission before the Court of Justice — that the 'duty as a cost' rule is necessary to ensure that associated import­ ers did not abusively pass on to their customers the benefit of the reimbursement of anti-dumping duties by granting 'disguised rebates'. Consequently, it is no longer necessary to consider that argument.

79 In order to assess whether, having regard to the abovementioned aims, the con­ tested rule should be regarded as 'manifestly inappropriate' within the meaning of the judgments cited above (see paragraph 70), it must be borne in mind that anti­ dumping duties, levied on imports, are borne by the importer and therefore increase his import costs. Consequently, where, after imposition of those duties, the dumping margin initially found has not been eliminated or even reduced — that is to say, where there has been no change in the conduct of the associated importer or in that of its group as a whole, the anti-dumping duty levied having been absorbed within their group — the dumping margin will not merely remain the same but will even be increased through absorption of the duties levied. That rea­ soning, adopted by the Advocate General with regard only to re-examination pro­ cedures under Article 14 of the basic regulation (Opinion in Case C-l 88/88 NMB and Others ν Commission [1992] E C R 1-1713 and I-1714, and in particular foot­ note 5), is also valid for reimbursement procedures under Article 16 of the same regulation. As the Court of Justice held in Case C-188/88 (paragraphs 32 and 33), the purpose in both cases is to establish whether or not there is still an actual dumping margin, and nothing to show that such a process should be carried out in accordance with different calculation methods has come to light in the course of the proceedings before this Court.

80 In those circumstances, where an associated importer, after anti-dumping duties are levied, takes a first step by eliminating only the initial dumping margin ('single jump'), there is no obvious reason why the Community legislature should as a result provide for full reimbursement of those duties. The fact that the associated importer avoids, by means of a 'single jump', an increase in the initial dumping does not mean that that importer has actually changed his market behaviour defin­ itively. For this reason, it is not imperative that he be rewarded by the grant of a reimbursement.

84 As regards the consequences, for determination of this dispute, of the new GATT and Community provisions adopted whilst proceedings have been pending before the Court, the applicants here rely on Article 11(10) of Regulation N o 3283/94 and Article 9.3.3 of the 1994 Anti-Dumping Code, claiming that the fact that the con­ tested rule was abandoned in those new provisions demonstrates its excessive nature. However, since it has not been established that the rule is manifestly inap­ propriate, the new provisions relied on by the applicants cannot be regarded as dif­ ferent options which might have been adopted by the Community legislature, and

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the Court cannot therefore find that the Council was under an obligation, in 1988, to adopt similar provisions, more favourable to the applicants than the contested rule. The argument based on the existence of new Community and international provisions cannot therefore be upheld.

85 It must be added that, even if review by the Court were not limited to the mani­ festly inappropriate nature of the contested rule, the Court's examination could not lead to a different result. The applicants have confined their case to a purely legal question (see paragraph 51 above). Consequently, the Court's examination cannot take account of the economic context in which the contested rule was applied.

86 It follows that the Court cannot find that, by adopting the contested rule, the Community legislature exceeded the limits of its discretion and thereby contra­ vened the principle of proportionality. The plea of breach of that principle must therefore be rejected.

88 The applicants reject the view that the anti-dumping duty paid can be regarded as a cost in the same sense as the costs of an associated importer, like customs duties. Even the definitive anti-dumping duty is by its nature provisional: it is intended to neutralize the foreseeable dumping approximately, the approximation being based on findings of dumping made in the original investigation period (in 1984 in the case of the N M B group). It is the function of the refund procedure to reach a final determination of the actual dumping margin for the imports which are the subject of the application for reimbursement and, therefore, of the actual duty it is permis- sible to collect on those imports. In such a system, the interim, approximate duty cannot itself be a factor counting in favour of a higher actual dumping margin. It would be equally absurd if a payment required to be made in advance on account of a tax liability remaining to be finally determined at a later date could be taken as a factor increasing the amount of that same tax liability, as finally determined.

89 The applicants consider that the view that the 'duty as a cost' rule is in breach of the Community's obligations under the Anti-Dumping Code is confirmed by an examination of the practices of the Community's trading partners. In that context, they emphasize that they have no wish to suggest that the Community is bound to follow the practices or rules of its trading partners. However, useful insights may be gained from studying those rules and practices. Under the anti-dumping rules in the United States, Australia and Canada, the anti-dumping duties charged do not serve to increase the actual dumping margin. It is therefore sufficiënt, in order to obtain reimbursement of those duties, simply to increase the resale price so as to eliminate the dumping margin. They refer again to the Opinion of the Advocate

92 They added that the plain words of the new 1994 Anti-Dumping Code indicate that there is no requirement to treat anti-dumping duty as a cost. The new Code shows in particular that, for the purpose of interpreting the old Article 2(5) and (6), anti­ dumping duties are not among the obligatory allowances to be deducted when con­ structing the export price.

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93 At the hearing, the applicants stated that the provisions of the 1979 Anti-Dumping Code are clear and simple in that the anti-dumping duties which exceed the dump­ ing margin are to be refunded as quickly as possible (Article 8(3)). As regards the new 1994 Anti-Dumping Code, they submit that Article 9.3.3 thereof has aban­ doned the 'duty as a cost' rule. That new provision was one of the most contro­ versial issues in the negotiations; it represents a last-minute compromise. The Com­ munity was isolated on this point in the negotiations: indeed, no other contracting party applies the 'double jump' principle.

94 The Commission states that all the arguments put forward by the applicants were already advanced in Case C-188/88 N MB and Others ν Commission. In its judg­ ment in that case, the Court examined all the arguments to the extent necessary for its reasoning and reached correct conclusions. In paragraph 17 of the judgment, the Court expressly referred to the Report for the Hearing for a fuller account of the facts and arguments. The applicants' arguments were duly summarized in the Report for the Hearing annexed to the judgment, which shows that they were fully considered by the Court. For that reason, the Commission refers, in its defence, to the reasoning set forth by the Court in the judgment in question.

96 Finally, the Commission considers that the applicants' reference to the practices of the Community's trading partners is irrelevant in this case. Whilst it is true that three of the Community's trading partners have anti-dumping rules which the applicants regard as less rigorous for associated importers than the Community rules, it should be emphasized that the differences between the ways in which those three anti-dumping regimes operate render any comparison difficult. Moreover, the Community's trading partners have recognized that adoption of the formula advo­ cated by the applicants would create unacceptable difficulties in the enforcement of anti-dumping rules. That is why the 'Dunkel draft' envisages the inclusion of a provision in the new Anti-Dumping Code specifically to allow in certain circum­ stances deduction of anti-dumping duties paid by associated importers in the con­ struction of the export price.

97 At the hearing, the Commission stated that Article 9.3.3 of the new 1994 Anti- Dumping Code, although relaxing the 'double jump' requirement, confirms the 'duty as a cost' rule. This new text does not appear in the general provisions con­ cerning calculation of the dumping margin and construction of the export price but constitutes a derogating rule concerning reimbursement. The general provisions of Article 2.4 of the new Code, concerning construction of the export price, have not departed from the old 1979 Code. Consequently, the very existence of Article 9.3.3 shows that anti-dumping duties are included in the duties mentioned in Article 2.4, for otherwise Article 9.3.3 would be superfluous. Moreover, all the contracting par­ ties to the new Anti-Dumping Code were unanimous on this point.

101 As the Court of Justice held in that judgment (paragraphs 46 and 47), the only dif­ ference, concerning construction of the export price, between the relevant Com­ munity regulation and the 1979 GATT Anti-Dumping Code — also at issue in the case — is that, whereas the Code merely lays down the principle that due allow­ ance should be made for costs incurred between importation and resale, 'including duties and taxes', the Community regulation specifies certain duties and other costs, including in particular anti-dumping duties, for which allowance must be made when the adjustment is carried out. The Court inferred from this that there is no inconsistency between the Community rules and the Anti-Dumping Code.

102 The wording of the 1979 Anti-Dumping Code is indeed clear in that, in Article 8(3), it provides that the amount of anti-dumping duty must not exceed the dump­ ing margin and that any duty in excess of that margin must be refunded as quickly as possible. However, there is no comparable stipulation concerning construction of the export price, which is needed in order to determine the actual dumping

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margin. In particular, Articles 2(5) and (6) and 8(3) do not deal explicitly or implic­ itly with the question of the legality of the 'duty as a cost' rule.

103 Consequently, it must be held that the contracting parties to GATT did not deal with this specific problem, with which they were familiar, in the Anti-Dumping Code. O n this point too, therefore, the Code evinces great flexibility. It cannot therefore be interpreted as imposing a particular obligation on the Community (judgment of the Court of Justice in Case C-280/93 Germany ν Council, cited above, paragraph 111) not to introduce, in implementation of the Code, a 'duty as a cost' rule (see also the judgment of the Court of Justice in Case 187/85 FEDIOL ν Commission [1988] E C R 4155, paragraph 12). The applicants' view that the con­ tested rule contravenes the Anti-Dumping Code must therefore be rejected as unfounded.

The plea of breach of the principle of non-discrimination

Arguments of the parties

108 The applicants claim that the 'duty as a cost' rule illegally discriminates against associated importers compared with independent importers and contest the oppo­ site proposition that not to apply that rule would bring about illegal discrimination against independent importers. They refer to the Opinion of the Advocate General in Case C-188/88 NMB and Others ν Commission, who also expressed the view that the system defended by the Commission discriminates against associated importers ([1992] E C R I-1719 and I-1720).

109 In that context, the applicants first describe the conditions prevailing on the Com­ munity market in ball-bearings. It is extremely competitive: on the supply side there is a significant number of major multinational producers and on the demand side there are numerous major manufacturing companies having a considerable degree of economic power. In those circumstances, buyers would not accept a

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information needed for a such an application, the position of an independent importer is not appreciably different from that of an associated importer.

1 1 3The Commission points out, first, that the suggestion of discrimination against associated importers as compared with independent importers was rejected in the Court's judgment in Case C-188/88 N MB and Others ν Commission on the ground that associated and independent importers are not in comparable situations and that any difference of treatment is justified since otherwise it would be the independent importers who were discriminated against. In other words, the formal difference of treatment is necessary in order to ensure that the two categories of importer are in substance treated equally in that they must both increase their prices by the same amount.

1 1 4 In that regard, the Commission states that the independent importer seeks to make a profit by purchasing a product from whoever can supply him on the most favour­ able terms. The objectives of importers associated with a dumping manufacturer are entirely different since their legal and economic situation requires that they carry out policies controlled by their parent which will serve its objectives as a manu­ facturer and exporter and may include dumping large quantities of its products in the Community. Whether the activities of associated importers are profitable or not is unimportant so long as the long-term interests of the group are being served. Associated importers need not make a profit from their import and resale opera­ tions, whereas the very existence of independent importers depends on profits.

117 As the Court of Justice held in Case C-l88/88 NMB and Others ν Commission (paragraphs 34 and 35), the alleged difference in the treatment of independent importers and associated importers with respect to the refund of anti-dumping duties is justified by the difference in their respective situations in relation to dumping and does not therefore constitute discrimination. Whereas independent importers are not involved in dumping, importers who are associated with the exporter are thereby placed on the other side of the 'dumping fence', in the sense that they participate in the practices which constitute dumping and, in any event, are in a position to have full knowledge of the circumstances underlying it.

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118 Moreover, it cannot be denied that the anti-dumping duties which an independent importer pays upon importation constitute an additional cost which it must cope with in one way or another. In these circumstances, the fact that, as a result of the contested rule, those duties are treated as a cost for the associated importer merely places these two categories of trader on the same footing (on this point, see Case C-188/88 NMB and Others ν Commission, paragraph 39).

119 It must be added that both the 1979 Anti-Dumping Code and the 1994 Anti- Dumping Code allow the contracting parties to apply special treatment to the sit­ uation where it is impossible to take the export price as a basis owing to the exist­ ence of an association between the exporter and the importer (Article 2(5) of the 1979 Code and Article 2.3 of the 1994 Code). It is therefore at the GATT level that the situation of importers associated with their exporters is made subject to special rules shaped by doubts as to the reliability of the export price actually charged. In these circumstances, the Community legislature cannot be criticized for breach of the principle of non-discrimination by providing for application of the ‘duty as a cost' rule only with respect to associated importers.

123 Under the first subparagraph of Article 87(2) of the Rules of Procedure, the unsuc­ cessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the applicants NMB-Minebea-GmbH, N M B (UK) Ltd and N M B Italia Srl have been unsuccessful with their claims in so far as they relate to the anti-dumping duties collected from January 1987 to 20 Septem­ ber 1990, and since the Commission has applied for costs, the applicants must be ordered to pay the costs relating to those claims.

124 Since the action has become devoid of purpose as far as N M B France SARL is concerned and, as far as the other three applicants are concerned, with respect to the anti-dumping duties collected in the period from 21 September 1990 to Sep­ tember 1991, it must be borne in mind that, under Article 87(6) of the Rules of Procedure, where a case does not proceed to judgment, costs are to be in the dis­ cretion of the Court.

125 The Court finds that the elimination of anti-dumping duties brought about by Regulation N o 2553/93, which had the effect of rendering this action partially devoid of purpose, was carried out not because the Council or the Commission accepted the applicants' view that the 'duty as a cost' rule was unlawful but because

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those institutions considered that there would be no repetition of material damage to the Community industry (29th recital in the preamble). In the circumstances, the Court considers that it is fair for the applicants also to bear the costs of those parts of the action which have become devoid of purpose.

3. Dismisses the remainder of the action;

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4. Orders the applicants jointly and severally to bear the costs, with the excep­ tion of those of the intervener, which shall bear its own costs.

Kirschner Vesterdorf Bellamy

Kalogeropoulos Potocki