T-213/97

H . Hecking Söhne GmbH&Co., a company incorporated under German law, established at Stadtlohn (Germany),

Spinnweberei Uhingen GmbH, a company incorporated under German law, established at Uhingen (Germany),

FA Kümpers GmbH&Co., a company incorporated under German law, estab- lished at Rheine (Germany),

Tenthorey SA, a company incorporated under French law, established at Eloyes (France),

* Language of the case: English.

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Filature Niggeler & Kupfer SpA, a company incorporated under Italian law, established at Capriolo (Italy),

Standardtela SpA, a company incorporated under Italian law, established at Milan (Italy),

represented by Clive Stanbrook Q C , and Alan Dashwood, Barrister of the Inner Temple, with an address for service in Luxembourg at the Chambers of Arsène Kronshagen, 12 Boulevard de la Foire,

applicants,

v

Council of the European Union, represented by Marta Arpio Santacruz and Antonio Tanca, Legal Advisers, acting as Agents, assisted by Hans-Jürgen Rabe and Georg M. Berrisch, Rechstanwälte, Hamburg and Brussels, with an address for

makes the following

Order

Facts of the case

1 Having received a complaint from the first applicant, Eurocoton, the Commission opened an anti-dumping procedure (notice published in OJ C 50 of 21 February 1996, p. 3) and, on 18 November 1996, adopted Regulation (EC) N o 2208/96 imposing a provisional anti-dumping duty on imports of unbleached (grey) cotton fabrics originating in the People's Republic of China, Egypt, India, Indonesia, Pakistan and Turkey (OJ 1996 L 295, p. 3, hereinafter 'the provisional regulation'). Pursuant to Article 3 thereof, the regulation entered into force on the day follow- ing its publication, on 20 November 1996, in the Official Journal of the European Communities and was to apply in principle for a period of six months unless the Council adopted definitive measures before the expiry of that period.

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ORDER OF 2. 10. 1997 — CASE T-213/97 R

Procedure

7 By application lodged at the Court Registry on 18 July 1997, the applicants brought an action under Articles 173 and 174 of the EC Treaty for annulment of the Council decision to reject the aforementioned Commission proposal and, under Articles 178 and the second paragraph of 215 of the Treaty, for an order requiring the Council to make good any damage caused to the applicants by that decision.

8 By separate document lodged at the Court Registry on the same day, the appli- cants requested the Court:

5. To order the Council and the Commission to take any other necessary measures to preserve the status quo that existed immediately prior to the Council's decision to reject the Commission's proposal.

...'.

9 In its observations submitted on 14 August 1997, the Council contended that the Court should dismiss the application for interim measures as inadmissible or, alter- natively, as unfounded. Having regard to the evidence before him, the President considered that he had all the information necessary to rule on this application without there being any need beforehand to hear oral argument from the parties.

Law

io Under Articles 185 and 186 of the Treaty and Article 4 of Council Decision 88/591/ECSC, EEC, Euratom of 24 October 1988 establishing a Court of First Instance of the European Communities (OJ 1988 L 319, p. 1), as amended by Council Decision 93/350/Euratom, ECSC, EEC of 8 June 1993 (OJ 1993 L 144, p. 21) and by Council Decision 94/149/ECSC, EC of 7 March 1994 (OJ 1994 L 66, p. 29), the Court may, if it considers that circumstances so require, prescribe any necessary interim measures.

1 1 Article 104(1) of the Rules of Procedure of the Court specifies that an application to suspend operation of any measure is admissible only if the applicant is challeng- ing that measure in proceedings before the Court. Article 104(2) provides that applications for interim measures must state the circumstances giving rise to

1 3 Emphasizing that the inadmissibility of the main action can entail the inadmissibil- ity of a request for interim measures (order of the Court of Justice in Joined Cases C-66/91 and C-66/91 R Emerald Meats v Commission [1991] ECR 1-1143, para- graph 32), the Council points out that the outcome of the written procedure, which ended on 16 May (see paragraphs 3 and 5 above) does not amount to a decision within the meaning of Article 173 of the Treaty. The Council refers to the efforts made subsequent to that date to persuade it to adopt the Commission pro- posal within the 15-month period laid down for bringing the anti-dumping inves- tigation to an end (Article 6(9) of the basic regulation). It also questions the appli- cants' legitimate interest in obtaining annulment of the alleged decision. Once that period has expired, the Council could no longer adopt the Commission proposal.

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Prima facie case

M In support of their application for annulment, the applicants contend that, at the end of the aforementioned period, the Council had no power to reject the Com- mission's proposal. All that the Council could do, according to the applicants, was require that the proposal be amended as to its modalities, while remaining within the limits of the findings of fact made by the Commission. Alternatively, the appli- cants contend that the decision to reject the Commission's proposal, if the Council did have power to adopt it, entailed a wilful disregard or manifest error of assess- ment of the facts found by the Commission, a breach of the complainants' proce- dural rights and legitimate expectations and a failure to state adequate reasons, as required by Article 190 of the Treaty.

decision and order the Council to adopt the proposal submitted by the Commis- sion, in accordance with the first claim (see above, paragraph 8).

is The provisional adoption of the Commission proposal, as required above, would naturally imply that the securities obtained for the duties imposed by the provi- sional regulation would not be released until judgment of the Court in the main action (second claim).

i9 As regards those two steps, the applicants state that there is no reason why defini- tive duties should not be imposed, at the end of the 15-month period provided for by Article 6(9) of the basic regulation, within a reasonable time thereafter, on the basis of the investigation carried out within the first of those periods. The principle of legal certainty requires simply that any measure adopted under those circum- stances should not be retroactive.

20 The reason for the third and fourth claims is that the measures envisaged above will be of no use if the Commission introduces provisional measures in the context of the new investigation. The measures sought pursuant to these claims would, in the present case, be particularly appropriate since, according to press reports (Agence Europe, 12.7.1997, N o 7015, p. 11), nine Member States supported the opening of the new investigation.

2i Finally, the applicants point out that some of the provisional measures sought involve action by the Commission and the Court may see fit to notify the Com- mission of the measures, in accordance with the order in Case 23/86 R United Kingdom v Parliament [1986] ECR 1085, paragraphs 22 to 24.

24 In asking the Court to order the Council to adopt provisionally the proposal sub- mitted by the Commission for the imposition of definitive duties, the applicants are seeking a measure which, in obliging exporters to raise their prices in order to finance the security which they would have to provide, would prejudge the main action and even go beyond what the applicants are seeking to obtain (mere annul- ment of the contested decision) and violate the division of powers between the dif- ferent institutions of the Community (order of the President of the Third Cham- ber of the Court of Justice in Case 321/88 R Spärr v Commission [1988] ECR 6405, paragraph 9). Furthermore, a measure of that kind would, wrongly, oblige the Council (see, for example, the order in Case C-l06/90 R Emerald Meats v Commission [1990] ECR 1-3377, paragraph 25) to act beyond its powers. Under Article 6(9) of the basic regulation, it no longer has the right, since 21 May 1997, to adopt the Commission proposal.

25 Like the claim which has just been considered, the applicants' claim for an order requiring the Council provisionally not to release the securities for duties imposed by the provisional regulation goes beyond the scope of the main action. It is also without interest for the applicants since the Council does not hold those securities (they are in the possession of the national authorities; in accordance with Article 1(3) and (4) of the provisional regulation, under which the provisions in force relating to customs duties are applicable). N o r does the Council have the power to

26 The claims for orders requiring the Commission to proceed expeditiously with the new investigation and the Council to act expeditiously upon the submission by the Commission of any proposal for the adoption of definitive measures upon conclu- sion of that investigation are inadmissible for a number of reasons. The measures thus sought are not related to the main action, which concerns an investigation prior to that concerned by those measures. Furthermore, the order sought against the Council goes beyond the scope of the main action. In both cases, the measures sought would constitute interference with a pending administrative investigation and, thus, violate the division of powers between the institutions of the Commu- nity. Moreover, they are premature and they rest on the assumption that the appli- cants do not have a prima facie case as regards the main action. The order sought against the Commission is rather unclear and, even if it were granted, would not give the applicants the protection which they seek. They are also asking the Court to make an order against an institution which is not a party to the case (see the order of the President of the First Chamber of the Court of Justice in Case 18/65 R Gutmann v Commission [1965] E C R 195; order of the President of the Court of Justice in Case 133/87 R Nashua Corporation v Commission [1987] E C R 2883, paragraph 7). The situation which gave rise to the order in the United Kingdom v Parliament case, cited above, is different in several respects from the situation in this case.

28 The applicants consider that the Council's decision to reject the Commission's proposal 'by the simple removal of the provisional anti-dumping duties' is causing them injury. The Commission itself has made a finding that the dumped imports in question are causing injury to the Community industry. This finding was made at the stage of provisional duties (see recitals 92 to 116 of the provisional regulation), whose very purpose was to prevent further injury being caused during the inves- tigation, and also at the end of that investigation (see sections F and G of the final disclosure document, mentioned above). In that context, the purpose of anti- dumping duties, whether provisional or definitive, is to redress the distortion in competition brought about by the dumping and to enable Community producers to compete on fair terms. The injury which Community producers will suffer is irreparable because its exact quantification and its distribution among the appli- cants would be a function of how those companies would have behaved if they had been allowed to compete among themselves and with importers on an undistorted market. They are being denied that possibility by the contested decision and, according to the applicants, no award of monetary compensation can actually put them in the situation in which they would have found themselves, in terms of financial situation, market share, etc.

29 Owing also to the continuation of dumping without compensating duties, the applicants are seriously considering relocating some or all of their production out- side the Community, as has already happened in the past. Such relocation is irre- versible in present economic conditions and clearly not in the Community interest. Accordingly, it is appropriate for the Court to order interim measures to remove a cause of such relocation, at least until its decision in the main action.

32 As regards the balancing of the interests at stake, the applicants refer to the conclu- sions drawn by the Commission at the end of its investigation, according to which it was in the interests of the Community to impose duties. That measure is there- fore in accordance with the balance of interests prevailing within the Community. Such a balance is also safeguarded as regards exporters outside the Community, since the measures sought involve suspension of duties against the provision of security. The suspension of duties would preserve the status quo for all interested parties until judgment in the main action (as far as concerns the feasibility of this course, see the order of the President of the Court of First Instance in Case T-2/95 R Industrie des Poudres Sphériques v Council [1995] ECR 11-485, paragraph 35). Finally, requiring the Commission and the Council to act expeditiously in the new investigation will not be a material inconvenience for them or for the parties con- cerned.

33 The Council states first of all that it has not removed the anti-dumping duties, which it is not within its powers to do. The provisional regulation ceased to apply by virtue of its Article 3.

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34 T h e C o u n c i l , next, considers that t h e c o n d i t i o n relating t o urgency, w h i c h it exam- ines along w i t h the balancing of interests, is n o t fulfilled.

36 In particular, the findings on damage, drawn by the Commission at the end of the investigation, do not demonstrate the necessity for the interim measures sought in this case because the distortion of competition complained of by the applicants is inherent in the non-imposition of anti-dumping duties. Moreover, it would appear from the fact that in this case the applicants are seeking protective measures for remedying this distortion and thus restoring what they term fair, competitive con- ditions that, in their view, not having such conditions until delivery of judgment in the final action does not amount to grave and irreparable damage (see the order in Case T-2/95 R Industrie des Poudres Sphériques v Council, cited above, paragraphs 31 and 32). The argument that it is impossible to quantify the alleged damage is in contradiction to the submissions made by the applicants to show that their claim for damages is prima facie well founded (see paragraph 15 above).

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ORDER OF 2. 10. 1997 — CASE T-213/97 R

37 The relocation which the applicants claim is probable does not constitute damage which affects them. In itself, it does not necessarily constitute grave and irreparable damage, especially since the applicants have not produced any evidence to support their assertion that a decision to relocate would be irreversible in 'present econ- omic conditions'. Such a decision would lie entirely with them and there would be no causal link between their decision and the decision allegedly taken by the Council. The assertion that the applicants are giving 'serious consideration' to relocation does not, in any event, constitute proof of the immediate occurrence of foreseeable damage (see the order of the President of the Court of First Instance in Case T-88/94 R Société Commerciale des Potasses et de l'Azote and Entreprise Minière et Chimique v Commission [1994] E C R 11-263, paragraph 39).

EUROCOTON AND OTHERS v COUNCIL

decide on the imposition of definitive duties and, if need be, on the definitive col- lection of provisional duties. In conferring this power upon it, the Community legislature has left it to the Council to decide whether and to what extent it is necessary to follow the Commission's proposal and it is not therefore obliged prima facie to adopt it in any case, as the applicants themselves would appear to accept (see paragraph 14 above). At this stage of the procedure provided for by the basic regulation, the Council therefore enjoys the broad discretion which the Community authorities have in deciding whether to adopt protective measures under that regulation (see, for example, the judgment of the Court of First Instance in Case T-162/94 N MB France and Others v Commission [1996] ECR 11-427, paragraph 72) after evaluating, in particular, the interests of the Commu- nity, which involves the appraisal of complex economic situations (see, in particu- lar the judgment of the Court of Justice in Case C-156/87 Gestetner Holdings v Council and Commission [1990] ECR 1-781, paragraph 63). Without it being nec- essary, in these interlocutory proceedings, to determine the limits of that power of assessment of the Council, in particular in relation to the Commission's powers in undertaking the investigation, it must be stated that the order sought would, at first sight, involve an interference with that power, incompatible with the distribu- tion of powers between the various Community institutions, and its grant cannot therefore be entertained (see the order of the President of the Court of First Instance in Case T-131/89 R Cosimex v Commission [1990] ECR II-l, paragraphs 11 and 12).

44 The applicants' allegation that it is impossible to quantify the damage caused by the distortion of competition allegedly resulting from the refusal to adopt anti­ dumping measures cannot, in this regard, be accepted. The applicants themselves have stated, in 'An estimate of the damage which the second to fourteenth Appli­ cants will suffer' (p. 16 of the application for interim measures) that the 'loss is [...] calculable'. In Annex 9 to their application they have submitted a calculation, for each of the applicant companies, relating to the 'estimated annual loss'. That cal­ culation is based on a comparison between the situations prior to the imposition of provisional duties and subsequent to their imposition. According to the last sen­ tence of that document, '[t]he exact amount' of the losses allegedly caused to them by the Council's decision 'can be determined in the future by analysing future economic and accounting data'. It follows that, by the applicants' own accounts, it is quite possible to put on the situation of 'distorted competition' of which they complain precise figures allowing the damage caused by that situation to be evalu­ ated. It must be added that the proposal which the applicants wish to have adopted by the Council (see paragraph 2 above) contains precise figures as regards the amount of proposed duties (see Article 1(2) of that proposal), together with calcu­ lations for determining the amount necessary for eliminating the damage suffered, according to the Commission, by the Community industry (point 152 et seq. of the proposal; see, as regards that calculation, the last sentence of Article 9(4) of the basic regulation). It would therefore appear from all those considerations that it is possible for each Community undertaking concerned to determine with sufficient precision what its situation would be if the Council had adopted the Commission's proposal and thus to quantify the damage caused to it, during a given period, by the Council's decision so as to enable appropriate financial compensation to be granted if necessary (see, as regards similar cases, the order of the President of the Court of Justice in Cases C-51/90 R and C-59/90 R Cosmos-Tank and Others v Commission [1990] E C R 1-2167, paragraph 31; orders of the President of the Court of First Instance in Industrie des Poudres Sphéňques v Council, cited above, paragraph 32, and in Dutch Antilles Government v Council, cited above, para­ graphs 37 and 47). In those circumstances, it must be concluded that the alleged

46 As regards, next, the possibility that the Community undertakings might 'relocate' all or part of their production outside the Community, the President finds that, on the face of it, the aim of such a step would be to lower the costs of production. Such a decrease in costs would not, in itself, constitute damage for the undertak- ings concerned. Indeed, the interest which the applicants are relying on in this con- text is the 'Community interest'. In this regard, it is clear from point 127 of the provisional regulation that this interest is linked to the level of employment within the Community. In order to establish the urgency of their application, the appli- cants cannot simply rely, as individual undertakings in the textile sector or as an association responsible for protecting the collective interests of those individual undertakings, on interests which would not reflect their own (see the order of the President of the Court of Justice in Case 12/64 R Ley v Commission [1965] ECR 107, 132) or, specifically as regards the association, on interests which would not at any rate correspond, depending on the case, to those which it is called upon to protect (see the order of the President of the Second Chamber of the Court of Justice in Joined Cases 209/78 R to 215/78 R and 218/78 R Van Landewyck and Others v Commission [1978] ECR 2111, paragraphs 2 and 3). It is for the judge hearing the interim application to take account of other interests involved, for example the interest in the maintenance of employment (see the order of 3 June 1996 in Case T-41/96 R Bayer v Commission [1996] ECR 11-381, paragraphs 58 and 59), in determining whether there are grounds for granting the interlocutory application. In any event, the applicants have not adduced any hard evidence allowing an evaluation to be made of the seriousness of the alleged relocation plans, their relation to the contested decision or the extent to which such plans would be carried through, in all probability, before the foreseeable date of the final judgment in the main action.

47 As regards the assertion that the survival of the Community industry is threatened, the applicants have likewise not provided evidence to support the grant of interim measures. They have not produced any economic or accounting data concerning the undertakings belonging to the industry concerned enabling the judge hearing their interlocutory application to make a sufficiently well-founded prognosis him- self as regards the possibilities of survival of one or more of those undertakings until the time when judgment is given in the main proceedings (see the order of the President of the Court of Justice in Case 809/79 R Pardini v Commission [1980] E C R 139, paragraph 9; order of the President of the Court of First Instance in Case T-84/96 R Cipeke v Commission [1996] ECR 11-1313, paragraph 45). Although the Commission mentions, in the provisional regulation (point 127, cited above, paragraph 30), in its final information document (Annex 3, p . 5) and in its proposal which is the subject of the contested decision (point 100 of that pro- posal), a risk that the 'Community industry' might disappear, that statement does not allow any judgment to be made in these proceedings, which are designed to protect only the interests of the applicants taken individually, of the particular situ- ation of each of the undertakings concerned or of the period of time in which the decline referred to could lead to the insolvency of a particular undertaking, with- out the undertaking being itself able to take measures to prevent this extreme out- come. On this last point, it must also be observed that, in its provisional regulation (point 127, cited above), the Commission referred to the Community industry's closing down and its relocation (see, in this regard, paragraph 45 above) as alterna- tive possibilities. The calculations set out in Annex 9 to the application for interim measures refer only to a loss of profit which non-adoption of anti-dumping mea- sures would allegedly cause for the applicant companies and do not allow any forecast to be made as regards their chances of survival if such measures are not taken. Finally, Eurocoton has not identified any serious and irreparable damage which would threaten the association itself as a result of the Council's conduct.

si It must also be stated that the purpose of the second claim, for an order requiring the Council not to release the securities provided for provisional duties, is to obtain from the Council a measure which, whilst retaining provisional character, would be akin to adoption of the Commission's proposal in so far as the proposal envisages the definitive collection of the provisional duties (see the explanations given by the applicants in paragraph 18 above). Consequently, the considerations set out above with regard to the first claim (paragraphs 40 and 41) also apply to this part of the application for interim measures.

52 Contrary to what is required by the second subparagraph of Article 104(1) of the Rules of Procedure of this Court, the third and fourth claims do not relate to any case pending before this Court. The new investigation to which those claims relate (see paragraph 6 above) bears no relation to the main action whose purpose, both in its claim for annulment and its claim for damages, is to obtain a remedy for a situation created, according to the applicants, by an act which preceded that inves- tigation.

53 Finally, the fifth claim does not explain in detail the measures sought and does not therefore satisfy Articles 104(3) and 44(1 )(d) of the Rules of Procedure.

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54 It follows from all those considerations that the conditions enabling the measures sought to be granted in law are not fulfilled and that this application must there- fore be dismissed without its being necessary to consider the other aspects raised by the parties regarding, in particular, the admissibility of the main action or whether that action is prima facie well founded.

H. Jung A. Saggio

Registrar President

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