T-75/96

Commission of the European Communities, represented by Nicholas Kahn and Dimitris Triantafyllou, of its Legal Service, acting as Agents, with an address for service in Luxembourg at the office of Carlos Gómez de la Cruz, of its Legal Ser­ vice, Wagner Centre, Kirchberg,

defendant,

* Language of the case: English.

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ORDER OF 26. 8. 1996 — CASE T-75/96 R

A P P L I C A T I O N for suspension of operation of the notice of initiation of anti- dumping proceedings concerning imports of unbleached cotton fabrics originating in the People's Republic of China, Egypt, India, Indonesia, Pakistan and Turkey (OJ 1996 C 50, p. 3),

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SÖKTAS v COMMISSION

3 By application lodged with the Registry of the Court of First Instance on 20 May 1996 Söktas Pamuk Ve Tanm Uriinlerini Deģerlendirme Ticaret Ve Sanayi A.Ş., a company which manufactures inter alia the types of cotton fabric allegedly being dumped and exports them to the Community, brought an action under the fourth paragraph of Article 173 and Article 178 of the E C Treaty seeking annulment of the 'decision' to initiate anti-dumping proceedings concerning imports of unbleached cotton fabrics originating in the People's Republic of China, Egypt, India, Indonesia, Pakistan and Turkey, announced in the said notice of 21 February 1996, and an order that the Commission make good the damage allegedly caused to the applicant by the contested measure.

4 By a separate document lodged with the Court Registry on the same date, the applicant also made an application under Article 185 of the EC Treaty for suspen­ sion of operation of 'the contested decision in so far as it affects the applicant, and Turkey in general'. The Commission submitted written observations by a docu­ ment lodged with the Court Registry on 11 June 1996. O n 30 July 1996 it pro­ duced certain documents at the request of the President of the Court. Having regard to the documents in the case, the President considered that he had all the information needed to decide the present application for interim relief, without there being any need first to hear argument from the parties.

Law

5 Under the combined provisions of Articles 185 and 186 of the Treaty and Article 4 of Council Decision 88/591/ECSC, EEC, Euratom of 24 October 1988 establish­ ing a Court of First Instance (OJ 1988 L 319, p. 1), as amended by Council Deci­ sions 93/350/Euratom, ECSC, E E C of 8 June 1993 (OJ 1993 L 144, p. 21) and 94/149/ECSC, EC of 7 March 1994 (OJ 1994 L 66, p. 29), the Court may, if it considers that circumstances so require, order operation of the contested act to be suspended or prescribe any necessary interim measures.

8 In particular, the Commission rejects the applicant's argument that the conditions to which the adoption of anti-dumping measures is subject under Article 47 of the Additional Protocol to the Agreement establishing an Association between the European Economic Community and Turkey (OJ 1977 L 361, p. 60) were not met in the present case. Even if that circumstance relied upon by the applicant were established, which the Commission denies, it would have no effect on the nature of the contested act. Moreover, the Turkish authorities did not claim in their letters to the Commission, with respect to the anti-dumping proceedings at issue, that the initiation of those proceedings had infringed Turkey's rights under Article 47 of the Additional Protocol.

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9 In the second place, the Commission submits that in any event the contested act is not of direct and individual concern to the applicant. The notice of initiation of the anti-dumping proceedings mentions only the product and the countries concerned. It does not refer to any exporting or importing undertakings specifically. Their number and identity were not fixed or ascertainable at the time of initiation of the proceedings, contrary to the criterion defined by the Court of Justice in Joined Cases 106/63 and 107/63 Töpfer and Getreide-Import v Commission [1965] E C R 405. Furthermore, while seeking suspension of the anti-dumping proceedings as regards 'Turkey generally', the applicant did not at any point claim that all exports from Turkey of the products concerned by the proceedings were exported by it.

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i2 The first subparagraph of Article 47(2) provides only that an 'injured party' may act unilaterally if, after it has duly referred the matter to the Association Council, the latter either takes no decision within three months or else issues recommenda- tions in accordance with Article 47(1) which produce no effect.

i3 Finally, the second subparagraph of Article 47(2) permits only the introduction, after the Association Council has been informed, of interim protective measures lasting not more than three months from the date of the application or the date on which the injured party has taken unilateral protective measures following the ineffectiveness of the Association Council's recommendations.

H In this case the Commission failed to observe the provisions of Article 47(1) by not making a prior application to the Association Council. Informing the Associa- tion Council after initiating the proceedings was not in accordance with the above- mentioned provisions of Article 47. It appears from the minutes of the meeting of the EU-Turkey Customs Union Joint Committee of 19 February 1996 (annex 8 to the application) that Turkey does not agree with the Commission's interpretation of Article 47.

is In that context, the Association Council has been given no opportunity to act to prevent the contested action. The only possibility it has is to suspend the measure introducing a provisional duty, pursuant to Article 47(3), pending the issue of rec- ommendations under Article 47(1). However, such a decision is highly unlikely, in that the Community itself, represented by the Commission, would be called upon to agree to the suspension decision within the Association Council.

i9 It is settled case-law that decisions against which an action for annulment lies under Article 173 are measures which produce binding legal effects capable of affecting applicants' interests and bringing about a distinct change in their legal position. In the case of acts or decisions adopted by a procedure involving several stages, an act is in principle challengeable only if it is a measure definitively laying down the position of the institution on the conclusion of that procedure, and not an intermediate step intended to pave the way for that final decision (see, in par- ticular, Case 60/81 IBM v Commission [1981] ECR 2639, paragraphs 8 to 12, and the order of 14 March 1996 in Case T-134/95 Dysan Magnetics and Another v Commission [1996] ECR 11-181, paragraph 20).

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20 In the present case, the President must assess whether the contested act appears, prima facie, capable in itself of producing legal effects liable to affect the applicant's interests, or -whether it is in fact only a preparatory measure whose unlawfulness could be raised in an application brought against the final decision.

2i The applicant's argument that the initiation of anti-dumping proceedings pursuant to Article 5 of Regulation N o 3283/94 brings about irreversible consequences, in that it has the effect of displacing the procedure for the friendly settlement of dis- putes provided for in Article 47 of the Additional Protocol, and thus exposes the person in question to the risk of provisional anti-dumping duties being imposed, does not appear well founded.

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tions those practices continue. Moreover, the second subparagraph of Article 47(2) expressly authorizes the introduction of provisional anti-dumping duties as interim measures, for a limited period, by a party to the Association Agreement, after informing the Association Council.

24 That interpretation of Article 47 appears to be borne out by Section III, on trade defence instruments, of Chapter IV of Decision N o 1/95 of the EC-Turkey Asso- ciation Council of 22 December 1995 on implementing the final phase of the Cus- toms Union (OJ 1996 L 35, p. 1). At first sight, it is clear from Articles 44 to 46 of that section that either party to the Association Agreement remains competent to apply its own trade defence instruments, subject to observing the modalities of implementation defined by the above provisions of Article 47 of the Additional Protocol.

ORDER OF 26. 8. 1996 — CASE T-75/96 R

27 It follows that the applicant's argument that the notice of initiation of the anti- dumping proceedings at issue has the effect of excluding intervention by the Asso- ciation Council as provided for in Article 47 is prima facie unfounded.

28 Moreover, in any event, it must be observed that, unlike a decision to initiate the procedure provided for in Article 93(2) of the Treaty in relation to State aid, to which the applicant compares it, the initiation of anti-dumping proceedings is not capable of immediately and irreversibly affecting the legal position of the under- takings concerned. It does not automatically entail the imposition of anti-dumping duties, and the procedure may be terminated without measures being imposed, as provided for in Article 9 of Regulation N o 3283/94. Furthermore, undertakings involved in an anti-dumping investigation are in no way compelled to alter their commercial policy as a result of the initiation of the proceedings, and they cannot be required to cooperate in the investigation (see the order in Dysan Magnetics, cited above, paragraphs 22 to 28).

29 In those circumstances, in any case, the initiation of the anti-dumping proceedings at issue constitutes in the present case, at first sight, a preparatory measure whose unlawfulness could be raised in an application brought against the final decision, ensuring sufficient protection for the applicant.

30 Consequently, the contested act does not prima facie constitute a decision within the meaning of Article 173 of the Treaty against which an action for annulment would lie. The main application seeking annulment of that act thus appears at this stage manifestly inadmissible, without there being any need to examine whether the applicant is directly and individually concerned by the contested act.

T H E PRESIDENT O F T H E C O U R T O F FIRST INSTANCE

hereby orders:

1. The application for interim measures is dismissed.

2. Costs are reserved.

Luxembourg, 26 August 1996.

H. Jung A. Saggio