C-46/98

1. The Court is being asked in the present member of EFMA, requested the Commis- case to rule on the appeal brought by sion to institute anti-dumping proceedings European Fertilizer Manufacturers Asso- in respect of imports into the Community ciation (hereinafter 'EFMA') against the of urea originating in non-member coun- judgment delivered by the Court of First tries 3 pursuant to Council Regulation Instance on 17 December 1997 in the case (EEC) No 2176/84 of 23 July 1984 on of EFMA v Council. 1 That judgment protection against dumped or subsidised dismissed the action brought by EFMA imports from countries not members of the seeking annulment of Article 1 of Council European Economic Community. 4 Regulation (EC) No 477/95 of 16 January 1995 amending the definitive anti-dumping measures applying to imports into the Community of urea originating in the former USSR and terminating the anti- dumping measures applying to imports into the Community of urea originating in the former Czechoslovakia (hereinafter 'the contested regulation'). 2 The proceedings instituted by the Commis- sion resulted in the adoption of Council R e g u l a t i o n (EEC) N o 3 3 3 9 / 8 7 of 4 November 1987 imposing a definitive anti-dumping duty on imports of urea originating in Libya and Saudi Arabia and Factual and legal context of the action for accepting undertakings given in connection annulment brought by the present appel- with imports of urea originating in Cze- lant before the Court of First Instance choslovakia, the German Democratic Republic, Kuwait, the USSR, Trinidad and Tobago and Yugoslavia and terminating these investigations. 5 The undertakings accepted by that regulation were confirmed 2. The facts underlying the action are as set by Commission Decision 89/143/EEC of out in the judgment under appeal. EFMA is 21 February 1989. 6 a trade association of fertiliser producers. In July 1986 CMC-Engrais, which is a 3 — In particular, Czechoslovakia, the German Democratic Republic, Kuwait, Libya, Saudi Arabia, the USSR, Trinidad and Tobago, and Yugoslavia. * Original language: Italian. 4 —OJ 1984 L 201, p. 1. 1 — Case T-121/95 [1997] ECR II-2391. 5 —OJ 1987 L 317, p. 1. 2 — OJ 1995 L 49, p. 1. 6 — OJ 1989 L 52, p. 37.

On 10 May 1994 the Commission sent to all parties concerned a disclosure letter The injury elimination threshold was lower setting out its conclusions from the inves- than the dumping margin established for tigation together with the considerations on Russia. Consequently, in accordance with the basis of which it intended to recom- Article 13(3) of Regulation (EEC) mend the introduction of definitive mea- No 2423/88 7 (hereinafter 'the basic regu- sures. In that letter the Commission lation'), the definitive anti-dumping duty explained in particular why it had chosen was set at the level of the injury elimination Slovakia rather than Australia or Canada threshold. as the reference country, its calculation of the normal value (in Slovakia), its compari- son between normal value and export prices, and finally its estimate of injury. The Commission also explained why it found it appropriate to set a profit margin Article 1 of the contested regulation pro- of 5% for Community producers and to vides as follows: make an adjustment of 10% of the price of urea of Russian origin in calculating the level of the duty. The latter adjustment was justified on the grounds that Russian urea tended to deteriorate during transport and ' 1 . A definitive anti-dumping duty is hereby that it could not be supplied on a regular imposed on imports of urea falling within basis to the market. This resulted in the CN codes 3102 10 10 and 3102 10 90 reduction in its price. originating in the Russian Federation.

2. The amount of the duty shall be the difference between ECU 115 per tonne and There then followed an exchange of corre- the net, free-at-Community-frontier price, spondence and a number of meetings between EFMA representatives and the Commission at which the 10% adjustment 7 — Council Regulation (EEC) No 2423/88 of 11 July 1988 on and the setting of the 5% profit margin protection against dumped or subsidised imports from countries not members of the European Economic Com- were discussed. munity (OJ 1988 L 209, p. 1).

6. By judgment of 17 December 1997, which is the subject of the present appeal, 5. On 17 April 1995 EFMA brought an the Court of First Instance dismissed the action before the Court of First Instance in application. The judgment first examined which it sought annulment of Article 1 of the third plea, relating to the determination the contested regulation. EFMA requested of injury. The Court found in this regard the Court of First Instance to 'order that the that the institutions had not exceeded their anti-dumping duty imposed by that regula- margin of discretion in setting an adjust- tion be maintained until the competent ment equal to 10% by reason of differences institutions adopt the more stringent mea- in quality between Russian urea and urea sures needed to comply with the judgment produced in the Community. Concerning requested'. the allegation that EFMA's right to a fair hearing had been infringed during the administrative proceedings, the Court of First Instance held that EFMA had been informed, during those proceedings, 'of the EFMA put forward three pleas in law in principal facts and considerations on which support of its action. First, it challenged the the institutions based their conclusions'. 8 choice of Slovakia as reference country; Consequently, no infringement of the right that choice, it argued, infringed the basic to a fair hearing was recognised. Still in regulation. Second, it alleged a further regard to the third plea in law, the Court of infringement of that regulation inasmuch First Instance went on to reject EFMA's as the normal value and the export prices argument that the 5% profit margin for had been compared at two different stages. Community producers was inadequate for In the alternative, it submitted that the assessment of loss of profit. The Court held comparison was also vitiated by a manifest in this regard that EFMA had not adduced error of assessment and that the contested 'any evidence to show that [in establishing regulation was inadequately reasoned. that profit margin] the Commission made a Finally, the third plea in law related to the determination of injury. In this regard, EFMA put forward two arguments: first, 8 — Paragraph 87 of the judgment.

7. Having rejected the third plea in law, the Court of First Instance did not dwell at length on the other two pleas put forward That criticism is manifestly unfounded. As by EFMA. It declared them to be 'ineffec- the judgment states, 12 Article 13(3) of the tive' on the ground that, even if it were basic regulation provides that, where the accepted that they were well founded, they injury elimination threshold is lower than would still not have resulted in the annul- the dumping margin, the definitive anti- ment of the contested regulation and in the dumping duty cannot be established at a setting of a higher duty than that estab- level higher than that threshold. Conse- lished by the institutions in this case. quently, once it was established that the institutions had correctly determined the injury, there could in any event be no question — specifically by virtue of the rule in Article 13(3) — of the duty being set at a level higher than that threshold, as EFMA had sought. This reasoning is comprehen- 8. EFMA appealed against that judgment, sively set out in paragraphs 115 to 122 of setting out, in substance, six grounds of the judgment, and I am, quite frankly, appeal. unable to see how a failure to state reasons can be pleaded in this regard. 9 — Paragraph 106 of the judgment. 10 — Paragraph 111 of the judgment. 11 — Paragraph 111 of the judgment. 12 — Paragraphs 115 to 122.

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amendment, Article 230 EC). in the case where, even if it were held to be well founded, it would not result in the application being upheld. In that case, the Court of First Instance or the Court of Justice is not required to examine such a plea, which would in any event have no This criticism is also manifestly unfounded. bearing on the operative part of the judg- The case-law cited by EFMA in support of ment. 14 its contention raises a problem which is entirely irrelevant in the present context, namely that relating to the interest which an applicant has in obtaining the annul- ment of a measure. 1 3In the present case, the Court of First Instance did not in any way deny the appellant's right of action, nor did it rule on the appellant's interest in The third ground having the regulation annulled.

the possibility of securing a higher anti- regard that, in appeal proceedings, the dumping duty, as the appellant had sought, Court of Justice has jurisdiction to rule was precluded by the aforementioned sub- only on points of law, not on issues of fact. stantive rule in the basic regulation. Con- EFMA adds, however, that the Court has sequently, once the third plea in law — made an exception to this in cases where it concerning determination of injury — had is obvious that the Court of First Instance been rejected, EFMA's argument that a higher anti-dumping duty ought to have been imposed was precluded by the provi- 14 — See, with specific reference to dumping, Joined Cases 260/85 and 106/86 TEC and Others v Council [1988] ECR 5855, paragraph 39, and Case C-245/95 P Commis- sion v N T N and Koyo Seiko [1998] ECR I-401, paragraph

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EFMA V COUNCIL

has distorted the evidence put before it. 15 the Council is concerned, that is clearly a The judgment under appeal, it argues, erred question of fact, assessment of which falls precisely in that regard when it stated, in outside the jurisdiction of the Court of paragraph 77, that the Community produ- Justice. cers had agreed, during the administrative proceedings, that an adjustment of the order of 5% might be acceptable in respect of the difference in quality between Russian urea and urea produced in the Community. In fact, it submits, the Community produ- cers had never given any such agreement.

The fourth ground

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OPINION OF MR LA PERGOLA — CASE C-46/98 P

The fifth ground and relevance of the facts and circum- stances alleged'. 19

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EFMA V COUNCIL

. . a definitive anti-dumping or adoption of the contested measure. In the countervailing duty shall be imposed by present case, it has been shown that the the Council'. According to that provision, applicant did not during the administrative therefore, the Council, in introducing a procedure produce any evidence in support duty, may base itself only on the situation of its assertion that a higher profit margin resulting from the facts as finally estab- was required. The institutions were there- lished. Consequently, in its judicial review fore unable to take that factor into account of the measure adopted by the Council, the when they adopted the contested regula- Court of First Instance, called on to deter-

useful. Rather, the Court of First Instance had to confine itself to ascertaining whe- ther, in adopting the measure, the institu- tions had committed a manifest error in their assessment of the material in their possession at the time when the measure 16. Further, I would add that the investiga- was adopted. The Z/Yen report could not tion procedure in dumping cases, as gov- therefore be taken into account for the erned by Article 7 of the basic regulation, is simple reason that it was submitted after characterised by the fact that it recognises the contested regulation had been adopted. interested parties as being entitled to take cognisance of and present observations on all information relevant to the protection of their interests and used by the Commission during the investigation, with the single exception of the information excluded

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OPINION OF MR LA PERGOLA — CASE C-46/98 P

I accordingly conclude that the Court of by the basic regulation, under which the First Instance did not err in law in refusing possibility that the institutions committed a to take account of the Z/Yen report, which manifest error in their appraisal of the facts the appellant submitted during the judicial must be assessed by reference to the proceedings but not during the administra- information available when the measure tive proceedings. Indeed, the judgment was adopted, as resulting from the anti- correctly interpreted the principles imposed dumping investigation.

Conclusion

17. In the light of the foregoing considerations, I propose that the Court should:

— dismiss the appeal;