T-84/97

BEUC ν COMMISSION

O R D E R O F T H E C O U R T O F FIRST INSTANCE (Fourth Chamber, Extended Composition) 4 May 1998 *

In Case T-84/97,

Bureau Européen des unions de consommateurs (BEUC), an international asso- ciation governed by Belgian law, established in Brussels, represented by Bernard O'Connor, Solicitor, assisted by Bonifacio García Porras, of the Salamanca Bar, with an address for service in Luxembourg at the Chambers of Arsène Kron- shagen, 22 Avenue Marie-Adelaïde,

applicant,

ν

T H E C O U R T O F FIRST INSTANCE O F T H E E U R O P E A N C O M M U N I T I E S (Fourth Chamber, Extended Composition),

composed of: P. Lindh, President, R. Garcia-Valdecasas, K. Lenaerts, J. D. Cooke and M. Jaeger, Judges,

Registrar: H. Jung,

makes the following

Order

Legislative background and facts of the dispute

However, the repeal of Regulation (EC) N o 3283/94 shall not prejudice the valid­ ity of proceedings initiated thereunder.

References to Regulation (EEC) N o 2423/88 and to Regulation (EC) N o 3283/94 shall be construed as references to this regulation, where appropriate.'

3 It follows that Regulation N o 384/96 (hereinafter 'the Regulation') is applicable in the present proceeding.

4 The notice of initiation invited interested parties likely to be affected by the results of the investigation to make their views known in writing and to provide support­ ing evidence (point 5(e)).

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BEUC ν COMMISSION

10 By a letter of 6 August 1996 Mr De Munck requested the applicant to approach Directorate C of D G I regarding dumping matters and Directorate E of D G I Anti-dumping strategy: injury and Community interest aspects (policy, investiga­ tions and measures); other instruments of external economic policy and general questions, in relation to injury and Community interest. H e pointed out in par­ ticular that, regardless of whether the applicant could be deemed to be an inter­ ested party with a right to a hearing, it had not provided any reason why it should be heard, as required in Article 6(5) of the Regulation. H e therefore requested the applicant to reconsider its request for a hearing.

1 1 O n 19 August 1996, in a letter to Mr De Munck, the applicant requested access to all the documents supplied by each of the parties concerned.

12 O n 13 September 1996 the applicant wrote to Mr Balibrea reiterating its request for access to the non-confidential file and to be heard on the decision to initiate the anti-dumping procedure. It concluded:

'May I ask now for a clear response to our request, and the reasons for your decision.'

'... as you have previously been informed, it was concluded during the course of the investigation that BEUC could not be recognised as an interested party in this proceeding. In fact, in the light of both the GATT Anti-dumping Code and the Community's own legislation, consumers' organisations are considered interested parties only in cases where the like product concerned is commonly sold at the retail level. Grey cotton fabrics are intermediate, semi-processed products which are not normally sold at that level.'

16 The letter also stated that, in the early phase of the investigation, in a spirit of cooperation, BEUC had been granted a hearing and access to the non-confidential file regarding the subject of Community interest.

17 By letter of 20 December 1996 the applicant requested Sir Leon Brittan to state reasons for his reply of 24 October 1996 and requested access to the non- confidential file in its entirety.

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BEUC ν COMMISSION

18 O n 3 February 1997 Mr Stewart, Acting Director of Directorate C of D G I, gave a written reply in the following terms:

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22 The applicant claims that the Court should:

— declare the action admissible;

— annul the Commission's decision of 3 February 1997 refusing to consider it an 'interested party' in relation to an anti-dumping proceeding concerning imports of unbleached cotton fabrics originating in the People's Republic of China, Egypt, India, Indonesia, Pakistan and Turkey, and not allowing it to inspect the Commission's non-confidential documents and information made available to all the parties in that proceeding;

— annul the Commission's decision of 3 February 1997 in so far as it refuses to grant the applicant and other consumer organisations access to the non- confidential information made available in anti-dumping proceedings dealing with products not commonly sold at retail level;

BEUC ν COMMISSION

Admissibility

24 The Commission relies on two pleas in support of its objection on admissibility. First, the application was lodged out of time. Secondly, the applicant has no legiti­ mate interest in the annulment of the measure in question.

Arguments of the parties

25 In the first place, the Commission contends that the letter of 3 February 1997 merely confirms the earlier decision of the Commission contained in its letter of 17 September 1996. That letter was a clear and unambiguous response to the appli­ cant's request of 13 September 1996. The confirmation of an initial decision by a later one does not cause the limitation period to start to run afresh (Case 23/80 Grasselli ν Commission [1980] E C R I-3709).

26 N o n e the less, if the Court of First Instance were to consider that the letter of 17 September did not constitute a decision, the application would in any event be out of time by reason of the decision contained in the Commission's letter of 24 Octo­ ber 1996. That letter was signed by the Vice President of the Commission, and the Commissioner responsible for anti-dumping policy. That letter once again set out the Commission's position unequivocally.

31 In the first place, it argues, the letter of 17 September 1996 is not an act adopted by a competent authority since it was signed only by the official conducting the inves- tigation.

32 Secondly, the head of the unit in which Mr Balibrea was working also sent a letter to the applicant on 6 August 1996, which gave rise to a certain amount of confu- sion as to the official authorised to reply to the applicant.

33 Thirdly, the letter of 17 September 1996 was sent only four days after the appli- cant's letter, too short an interval for it to be regarded as an official response by the Commission.

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BEUC ν COMMISSION

34 However, should the Court of First Instance find that the letter of 17 September was a decision, the applicant submits, in the alternative, that the letter of 3 Febru­ ary is not a confirmation of its previous decision but a different decision replying to a different request.

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40 Accordingly, only the letter of 3 February 1997 can be regarded as a decision. It does not confirm an earlier decision but merely refers to the Commission's 'con­ tinued opinion' and, for the first time, deals with the points at issue in a clear, unambiguous, comprehensive and reasoned manner, concluding that the applicant is not entitled to be treated as an interested party in those or any similar proceed­ ings.

41 The applicant submits that the Commission cannot claim that the applicant has no legitimate interest in seeking the decision's annulment. It has, in effect, a continu­ ing interest in order to compel the Commission to alter its approach in the future (Case 92/78 Simmenthal ν Commission [1979] E C R 777, paragraph 32, and Case 207/86 Apesco ν Commission [1988] E C R 2151, paragraph 16).

Findings of the Court

42 Under Article 114(3) of the Rules of Procedure of the Court of First Instance, the remainder of the proceedings on an objection of admissibility is to be oral, unless the Court decides otherwise. In the present case, the Court considers that there is sufficient information in the file and that it is therefore unnecessary to open the oral procedure.

43 It is settled case-law that only measures with binding legal effects capable of affect­ ing the interests of the applicant by bringing about a distinct change in his legal position are capable of being the subject-matter of an application for annulment (Case 60/81 IBM ν Commission [1981] E C R 2639, paragraph 9, Air France ν Com­ mission, cited above, paragraph 43, and Case T-541/93 Connaughton and Others ν Council [1997] E C R 11-549, paragraph 30).

48 The Court recalls in that regard that the particular form in which acts and deci­ sions are adopted is, in principle, immaterial so far as concerns the possibility of their being challenged by an action for annulment, and that it is their substance which must be examined in order to determine whether they constitute measures within the meaning of Article 173 {IBM ν Commission, cited above, paragraph 9). Given that the decision in question contained a clear and definitive consideration of the request that had been put to the Commission, the character of the decision cannot be called in question merely on the ground that the request was considered only by the Commission's staff (Case T-37/92 BEUC and NCC ν Commission [1994] E C R II-285, paragraph 38).

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49 In any event, even if the applicant entertained doubts as to the authority of Mr Balibrea to convey the decision contained in the letter of 17 September 1996, those doubts were eliminated by the express terms of Sir Leon Brittan's letter of 24 October 1996 in which he confirmed that the Commission had already concluded during the course of the investigation that the applicant could not be recognised as an interested party in the proceeding. Contrary to the argument put forward by the applicant, the expression 'as you have been previously informed' clearly dem­ onstrates that the Commissioner was seeking to confirm expressly the decision already conveyed by Mr Balibrea in the letter of 17 September 1996.

50 The Court considers, moreover, that the fact that the decision of 17 September 1996 was issued merely four days after dispatch of the letter in which the applicant asked for a clear response cannot, of itself, indicate that the reply did not consti­ tute an official reply by the Commission.

54 Therefore, although the letter of 3 February 1997 explains the Commission's rea­ soning in greater detail than the letter of 17 September 1996, it contains no new factor as compared with the latter and was not preceded by any reexamination of the applicant's situation. The fact that in its letter of 20 December 1996 the appli­ cant sought access to the whole of the non-confidential file, but only to one aspect of it in its letter of 13 September 1996 to Mr Balibrea, is immaterial in the circum­ stances given that the refusal of access is based in both instances on the fact that the Commission did not consider that it could be regarded as an interested party in the context of the proceeding in question. In fact, it is clear from the terms of both letters that the decision of the Commission was to refuse to recognise the applicant as an interested party for the purposes of the entirety of the proceedings without any distinction between the different aspects thereof.

55 It follows that the letter of 3 February 1997 is a decision which merely confirms the decision of 17 September 1996, the latter not having been challenged within the relevant time-limit.

56 It follows that the application for annulment of the decision of 3 February 1997 is inadmissible and it is unnecessary to examine the further ground of inadmissibility raised by the Commission.

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Costs

Luxembourg, ... 1998.

H. Jung P. Lindh

Registrar President

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