C-177/96

The legislative framework 3. Article 1 of the Basic Decision provides that its purpose is to provide 'for protection against dumped or subsidized imports from countries which are not members of the European Coal and Steel Community'. Article 2 provides the method for assessing 2. The Decision was adopted against the whether dumping has occurred; that is background of a series of measures taken by complemented by Article 4 which covers the the European Coal and Steel Community since 1977 2 regulating the procedure and powers of the Commission in anti-dumping 3 — Commission Decision 2177/84/ECSC of 27 July 1984 on and subsidy investigations under the ECSC protection against dumped or subsidized imports from coun- tries not members of the European Coal and Steel Commu- nity, OJ 1984 L 201, p . 17. That decision was repealed and replaced with effect from 5 August 1988 by Commission Decision 2424/88/ECSC of 29 July 1988 on protection against dumped or subsidized imports from countries not * Original language: English. members of the European Coal and Steel Community, OJ 1 — Commission Decision 2131/88/ECSC of 18 July 1988 1988 L 209, p. 18, the relevant provisions of which are sub- imposing a definitive anti-dumping duty on imports of cer- stantially the same as the equivalent provisions of the Basic tain sheets and plates, of iron or steel, originating in Yugo- Decision cited in this Opinion. That decision was in turn slavia and definitively collecting the provisional anti- replaced with effect from 2 December 1996 by Commission dumping duty imposed on those imports, OJ 1988 L 188, Decision 2277/96/ECSC of 28 November 1996 on protec- p. 14. tion against dumped imports from countries not members of 2 — Commission Recommendation 77/329/ECSC of 15 April the European Coal and Steel Community, OJ 1996 L 308, p. 11. 1977 on protection against dumping or the granting of boun- ties or subsidies by countries which are not members of the 4 — Eighth recital in the preamble to Decision 2177/84, cited in European Coal and Steel Community, OJ 1977 L 114, p. 6. note 3.

3. Where warranted by the review ... the measures shall be amended, repealed or annulled by the Commission.' '... The authorities shall name the supplier or suppliers of the product concerned. If, how-

5 — Article 9. 6 — Article 10. 7 — Article 11. 6. Finally, Article 16 provides for the reim- 8 — Article 12. bursement of improperly levied duty.

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BELGIAN STATE v B A N Q U E I N D O S U E Z A N D A N O T H E R

The background to the anti-dumping duties 10. In January 1988, following complaints in issue that the abovementioned undertaking had been breached, the Commission by Decision 229/88/ECSC 14 re-imposed provisional anti- dumping duties of E C U 68 per 1 000 kilo- grams on specified steel products 'originating in Yugoslavia'. 7. In February 1986, the Commission initi- ated an anti-dumping proceeding in respect of certain specified steel products 'originat- ing in Yugoslavia'. 9

11. Finally, on 18 July 1988, the Commis- sion adopted the definitive duty decision, 15 imposing definitive anti-dumping duties of E C U 48 per 1 000 kilograms on imports of 8. By Decision 2767/86 10 provisional duties certain specified iron and steel products of E C U 68 per 1 000 kilograms were 'originating in Yugoslavia'. imposed on specified products Originating in Yugoslavia'. n That decision expressly referred to Rudnici i Zelezarnica Skopje ('Rudnici'), a producer and exporter in what is now F Y R O M . 1 2 At that time, of course, 'Yugoslavia' could only have been intended to mean the then territory of the Socialist 12. The definitive duty decision entered into Federal Republic of Yugoslavia ('SFRY'). force on 20 July 1988 16 for a period of five years from that date or from any subsequent modification or confirmation. 17

14. In 1992 the Commission found in its The facts and the main proceedings review investigation that dumping and injury persisted, albeit at a slightly attenuated level. It accordingly amended the Decision by Decision 2297/92, which came into force l s on the day following its publication in the Official Journal, namely 7 August 1992. I9 16. O n 17 September 1991, FYROM declared its independence; that was a reflec- tion of the continuing disintegration of SFRY into a number of geographically smaller States, which largely corresponded to the individual Republics constituting the old Federation. 23 15. The Decision as amended ('the Amended Decision') imposed anti-dumping duty on the same categories of steel products as those specified in the Decision before amendment where such products 'origi- nat[ed] in the Republic of Slovenia ... and the Yugoslav Republics of Macedonia ..., Mon- 17. Between 1 May 1992 and 31 July 1992 tenegro ..., and Serbia'. 20 The duty was (i. e. before the definitive duty decision was amended), Stahlhandel Schmitz G m b H , a company incorporated in Germany,

imported steel products of a type caught by succession: it is submitted that the Federal the Decision. Such products were imported Republic of Yugoslavia (Serbia and Mon- into the Belgian-Luxembourg Economic tenegro) ('FRY') was the sole successor of Union and originated in FYROM from the the former SFRY and thus — to the exclu- producer Rudnici; it is not clear whether the sion of FYROM — inherited from the applicants had imported Rudnici products at former SFRY liability to duties. The appli- any earlier time. By 31 July 1992 the Belgian cants also appear to have relied upon the fact authorities had levied and received anti- that the Amended Decision, in contrast to dumping duties totalling BFR 14 863 825. the definitive duty decision, referred expressly to FYROM.

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OPINION OF MR JACOBS — CASE C-177/96

Skopje between 1 May 1992 and 31 July hand and the Belgian Government and the 1992 inclusive?' Commission on the other is the question whether the international law rules on State succession are relevant. I shall deal first with that issue, which in the circumstances of this case will require me to consider also the nature of anti-dumping duties. In the light of my conclusion on that issue, I shall then turn to the interpretation of the Decision; in that 21. The Belgian Government and the Com- context, I will consider the question of legal mission have submitted that the two ques- certainty. tions are linked. The Belgian Government contends that an affirmative answer to the first question necessarily implies an affirma- tive answer to the second. The Commission contends that in reality the two questions can be considered as one. In my view those The nature of anti-dumping duties arguments are essentially correct and the two questions should be reformulated as follows:

mechanism of the imposition and collection 26. The usual practice in anti-dumping regu- of anti-dumping duties as demonstrating that lations or decisions is to name the specific anti-dumping measures do not give rise to producers of goods subject to anti-dumping debts due by States but to duties analogous duties. However, as is apparent from to customs duties which are payable by the Article 13(2) of the Basic Decision, where a individual importer in the Community. group of suppliers is subject to anti-dumping measures and it is not practicable to provide the names of each producer, it is permissible to use a more general term denoting territo- rial origin (significantly indicated in the Basic Decision as 'country' rather than 'State'). The use of a geographical or territo- rial term as a form of shorthand for all the producers of the specified goods active in that region in no way detracts from the essential nature of the definitive duty 25. I find those arguments persuasive. decision, namely as an act directed towards Clearly, the critical phrase used, namely products imported from a particular area. 'originating in Yugoslavia', must be inter- preted not only for its plain meaning but also according to its context and according to the objectives of the Decision and the legal regime of which it is part. 24 The impo- sition of anti-dumping duties, whether in the form of regulations in the case of EC mea- sures or in the form of decisions in the case of ECSC measures, is ultimately intended to protect Community industry from imported products which are priced below their nor- mal value and hence liable to injure Commu- nity producers. Such injury is prevented by 27. There is thus no linkage to public inter- imposing anti-dumping duties upon import- national obligations simply because of the ers of such products. The focus of anti- use of State territorial origin as a descriptive dumping measures is the products and their term identifying the product. Admittedly, provenance: measures are taken against representatives of the exporting country are imports from a particular country, normally entitled to be notified of a decision by the on the basis of investigations of selected pro- Commission to initiate an anti-dumping pro- ducers. The geographical origin of the prod- ceeding, 25 and such representatives have fur- ucts is the only criterion relevant in commer- ther rights under the procedure. 26 Clearly, cial or economic terms: a change of political questions of public international law, such as boundaries or name is in itself of no rel- the question who is a governmental repre- evance to the economic purpose of anti- sentative and with effect from what date, dumping duties. might arise and fall to be answered using principles of State and governmental recog- nition and State succession where it is

29. First, as the Commission points out, the definitive duty decision is in any event of continuing validity until any revision takes effect: see Article 14(2) of the Basic Decision. 32. The use of such shorthand does not transform what is in essence a customs meas- ure into a transaction between States; anti- dumping duties are not State debts. Whilst it is entirely possible that unjustified anti- dumping measures may have consequences in international law, routine measures com- 30. Secondly, the changes in the Amended plying with the Anti-Dumping Code do not Decision, which reflect the greater geo- concern or raise questions about the rela- graphical precision possible in the light of tions between States. It is accordingly unnec- the Commission's review (which showed essary for me to consider the substance of that there were no dumped steel products the applicants' arguments as to State succes- originating from the Republics of Bosnia sion, which appear to flow from the premiss Herzegovina or Croatia) and the evolving that FRY is the sole successor to SFRY's fragmentation of SFRY, do not affect the international obligations. As a matter of international law, I would comment that that premiss is not self-evidently correct. How- ever, as indicated I do not consider that I 27 — Some of these issues have been touched upon by the Court of First Instance in Case T-164/94 Ferchimex v Conned need explore the issue further for the pur- [1995] ECR 11-2681, especially paragraph 155 of the judg- ment. pose of this Opinion.

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BELGIAN STATE v B A N Q U E INDOSUEZ A N D ANOTHER

36. That case concerned the replacement of the old Common Customs Tariff Nomencla- ture with the new Combined Nomenclature. Regulations were passed under the old Com- mon Customs Tariff Nomenclature Regu- lation classifying certain maize products in 34. Although the applicants do not appear particular ways. However, when the expressly to have invoked the principle of Common Customs Tariff Nomenclature legal certainty, it is in my view inherent in was repealed, those regulations were not their submissions, being an alternative way replaced, nor were their classifications of viewing their arguments about State suc- amended to conform with Combined cession and the alleged continuity of SFRY Nomenclature terminology. The Court was and FRY. It is also inherent in the question essentially asked whether old regulations of interpretation framed by the national could be used to reclassify products that court. Even if one accepts the arguments of would otherwise be free from levies and the Commission and the Belgian Govern- duties so as to subject them to such pay- ment about the nature of anti-dumping duties and the irrelevance of State succession, there still remains the issue whether it is con- 28 — Case C-143/93 Van Es Douane Agenten v Inspecteur der sistent with the principle of legal certainty Invoerrechten en Accijnzen [1996] ECR 1-431, parigraph 27 of the judgment. See also Case 169/80 Administration des that 'Yugoslavia' should be considered to Douanes v Gondrand Frères [1981] ECR 1931 and Joined Cases 92/87 and 93/87 Commission v France and United mean 'all successor States to SFRY'. Kingdom [1989] ECR 405.

38. First, it is to my mind clear both from the terms of the Decision itself and from its 'to amend the regulations adopted on the legislative context that it was applicable to basis of [the Common Customs Tariff the products at issue in these proceedings. Nomenclature Regulation] which were still Decision 2767/86, 30 which first imposed of practical significance at the time of the provisional duties on specified products adoption of the combined nomenclature, so 'originating in Yugoslavia', specifically men- that individuals may be able to ascertain tioned Rudnici among the exporters being unequivocally what their rights and obliga- investigated. 31 Rudnici was listed as one of tions are and take steps accordingly. In the the Yugoslav exporters whose undertakings absence of such amendments, it may prove to the Commission subsequently led to the difficult for individuals to ascertain precisely termination of that investigation. 32 Decision what their legal position is.' 29 229/88 3 3 re-imposing provisional anti- dumping duties on the products concerned clearly applied to Rudnici since it expressly states that the Commission repealed its acceptance of the undertakings referred to in Decision 86/639, which included Rudnici's undertaking. 34 At the same time, the Com- mission reopened its anti-dumping investiga- tion. Again, it is clear from the notice of the reopening of the investigation, 35 which is 37. Although the principle so formulated couched in terms of the Yugoslav exporters may seem wide enough to apply in the whose undertakings were accepted in present case, the Van Es case is in my view Decision 86/639, that Rudnici was among very different. In that case, the Commission the exporters under investigation. Although was under an express obligation to amend the' Decision does not expressly mention the legislation, and the Court held that the Rudnici, it is clear from the previous mea- unamended legislation could not be applied; sures referred to in the preamble and from there was moreover real uncertainty as to the the reference throughout to 'the Yugoslav legal position since there were significant dif- exporters/producers concerned/known to ferences between the old and the new classi- be concerned' that the Decision covered fications which did not permit individuals to ascertain their legal position. In this case, in contrast, there was no such express obliga- 30 — Cited in note 10. tion and, as will be shown below, the 31 — Recital 14. 32 — Article 1 of Decision 86/639, cited in note 13. 33 — Cited in note 14. 34 — Recital 8. 29 — Paragraph 29 of the judgment. 35 — OJ 1988 C 22, p. 10.

39. Secondly, it is equally clear to my mind 41. Moreover, there is no residual successor that the definitive duty decision was State which could legitimately be confused intended to apply to the entire territory of with the old 'Yugoslavia' or SFRY; one must SFRY, since at the time it was made and dur- equate 'Yugoslavia' with its five successor ing the investigations and impositions of States. In any event, the very name of 'the provisional duties which culminated in the Former YugosUv Republic of Macedonia' is Decision there was no other feasible meaning an indicator to those potentially ignorant of for 'Yugoslavia', the term used in the the exact history of the region of the fact Decision and its precursors. Although the that FYROM was previously a republic of State of Yugoslavia or SFRY has ceased to SFRY. exist, the word still performs essentially the same shorthand function as before; it denominates exactly the same territorial or geographical scope (although now 'Yugosla- via' would be seen as a primarily regional or historically descriptive term that is itself shorthand for a collection of States). The ter- ritorial boundaries or geographical contents of that descriptive label remain unchanged. 42. Thirdly, and unsurprisingly in light of the above, there appears to be no evidence of any actual confusion or uncertainty; in con- trast to the Van Es case, and the earlier cases of Gondrand and Commission v France and United Kingdom, 3S there has been no sug- gestion of any reversal of expectation or gen- eral confusion as to what the term meant. Although it is true that the requirement of 40. Further support for the view that 'Yugo- legal certainty involves an objective test, the slavia' in the Decision meant all the territo- absence of any confusion or uncertainty is ries of SFRY is provided by the fact that, as none the less significant. In this case, all par- shown above, the Decision unquestionably ties concerned appear to have proceeded on applied to products imported from a manu- the basis that levies continued to be due on facturer in what is now FYROM, namely

T h e a n t i - d u m p i n g duties w h i c h , in accordance w i t h C o m m i s s i o n Decision 2 1 3 1 / 8 8 / E C S C , w e r e t o b e levied o n i m p o r t s of specified steel p r o d u c t s 'originat- ing in Yugoslavia' are applicable t o t h e same steel p r o d u c t s originating in the F o r m e r Yugoslav R e p u b l i c of M a c e d o n i a in the p e r i o d b e t w e e n 1 M a y 1992 and 31 J u l y 1992.

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