C-458/98

INDUSTRIE DES POUDRES SPHÉRIQUES V COUNCIL

OPINION OF ADVOCATE GENERAL COSMAS delivered on 16 March 2000 *

Table of contents

I — Introduction I-8152 II —• Relevant Community legislation I - 8152 III — Facts I-8156 IV — Proceedings before the Court of First Instance I-8159 V •—· Proceedings before the Court of Justice I-8160 A — Admissibility of the pleading of PEM and the Chambre Syndicale I-8160 B — Forms of order sought I - 8161 VI — Consideration of the ground of the cross-appeal: admissibility I-8161 A — Issues raised I-8161 B — Extramet I and the issue as to admissibility I - 8162 VII—Consideration of the grounds of appeal I-8164 A — First ground of appeal I-8164 (1) First part of the first ground of appeal: the obligation to comply with a judgment of the Court of Justice annulling a measure I-8164 (a) Admissibility I-8164 (b) Substance I-8165 (2) Second part of the first ground of appeal: infringement of Article 7( 1 ) and (9) and Article 14 of the basic regulation I - 8167 B — Second ground of appeal: infringement of the fundamental principle of the right to a fair hearing and of Article 7(4) of the basic regulation I-8170 (1) First part of the second ground of appeal: late notification of the memorandum lodged by PEM on 1 July 1992 I-8171 (a) Admissibility I-8171 (b) Substance I-8171 (2) Second part of the second ground of appeal: irregularities found concerning access to material in the file I - 8173 VIII —Costs I-8174 IX —Conclusion I-8175

* Original language: Greek.

I-8151

I I— Relevant Community legislation 2. Following the annulment of Regulation No 2808/89, the Commission resumed the anti-dumping investigation in respect of that product and the Council adopted Regulation (EC) No 2557/94 of 19 Octo- ber 1994 imposing a definitive anti-dump- 4. The basic regulation lays down rules for ing duty on imports of calcium metal protection against dumped or subsidised originating in the People's Republic of imports from States which are not members China and Russia ('the regulation at of the European Economic Community, as issue'). 4 IPS, formerly called Extramet, it was called at the time when the regula- brought an action challenging that regula- tion was adopted. It is apparent from its provisions that an anti-dumping proceed- ing comprises a series of stages, including 1 — [1995] ECR II-3939. 2 — Judgments in Case C-358/89 Extramet Industrie v Council [1991] ECR I-2501 ('Extramet I') and [1992] ECR I-3813 {'Extramet IF). 5 — OJ 1988 L 209, p. 1. These issues are now governed by Council Regulation (EC) No 384/96 of 22 December 1995 3 — OJ 1989 L 271, p. 1. on protection against dumped imports from countries not 4 — OJ 1994 L 270, p. 27. members of the European Community (OJ 1996 L 56, p. 1).

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the investigation stage. One or more inves- (c) commence the investigation at Com- tigations may take place in the same munity level, acting in cooperation proceeding. with the Member States; such investi- gation shall cover both dumping or subsidisation and injury resulting therefrom and shall be carried out in accordance with paragraphs 2 to 8; the investigation of dumping or subsidisa- 5. Article 7, in the version in force at the tion shall normally cover a period of material time, contains provisions govern- not less than six months immediately ing 'Initiation and subsequent investiga- prior to the initiation of the proceed- tion', as its heading indicates. Article 7(1) ing.' reads as follows:

(b) Exporters and importers of the decision which may be taken by the product subject to investigation Commission or the Council. Confiden- and, in the case of subsidisation, tial information shall be treated in the representatives of the country accordance with Article 8; of origin, may request to be informed of the essential facts and considerations on the basis of which it is intended to recommend the imposition of definitive duties (iii) information shall normally be or the definitive collection of given no later than 15 days prior amounts secured by way of a to the submission by the Commis- provisional duty. sion of any proposal for final action pursuant to Article 12. Representations made after the information is given shall be taken into consideration only if received (c) (i) requests for information pursuant within a period to be set by the to (b) shall: Commission in each case, which shall be at least 10 days, due consideration being given to the urgency of the matter.'

(aa) be addressed to the Commis- sion in writing,

7. Article 7(9) states:

(bb) specify the particular issues on which information is sought, '(a) An investigation shall be concluded either by its termination or by definitive action. Conclusion should normally take place within (cc) be received, in cases where a one year of the initiation of the provisional duty has been proceeding. applied, not later than one month after publication of the imposition of that duty;

(b) A proceeding shall be concluded either by the termination of the investigation without the imposi- (ii) the information may be given either tion of duties and without the orally or in writing as considered acceptance of undertakings or by appropriate by the Commission. It the expiry or repeal of such duties shall not prejudice any subsequent or by the termination of undertak-

(b) Each request for confidential treat- ment shall indicate why the infor- mation is confidential and shall be accompanied by a non-confidential '1. Regulations imposing anti-dumping or summary of the information, or a countervailing duties and decisions to statement of the reasons why the accept undertakings shall be subject to information is not susceptible of review, in whole or in part, where war- such summary. ranted.

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Such review may be held either at the 11. IPS, formerly Extramet Industrie, is an request of a Member State or on the undertaking based in Annemasse (France) initiative of the Commission. A review which specialises in the production of shall also be held where an interested party calcium metal broken up into granules of so requests and submits evidence of chan- reactive metal. 6 ged circumstances sufficient to justify the need for such review, provided that at least one year has elapsed since the conclusion of the investigation. Such requests shall be addressed to the Commission which shall inform the Member States.

12. Primary calcium metal is produced in five countries, France (by Péchiney Électro- métallurgique ('PEM'), a company incor- porated under French law), China, Russia, 2. Where, after consultation, it becomes Canada and the United States of America. 7 apparent that review is warranted, the investigation shall be reopened in accor- dance with Article 7, where the circum- stances so require. Such reopening shall not per se affect the measures in operation.

13. To obtain supplies of calcium metal IPS turned from the outset to the Community producer, initially Société Electrométallur- 3. Where warranted by the review, carried gique du Planet and then, after that under- out either with or without re-opening of the taking merged with PEM in 1985, PEM. investigation, the measures shall be amen- However, it also imported primary calcium ded, repealed or annulled by the Commu- metal from the People's Republic of China nity institution competent for their intro- and the Soviet Union. duction....'

19. The Court of Justice declared the 15. On 26 January 1988 the Commission application admissible by judgment of opened an anti-dumping proceeding pur- 16 May 1991 in Extrámét I.11 Then, by suant to Council Regulation (EEC) judgment of 11 June 1992 in Extramet No 2176/84 of 23 July 1984 on protection II, 12 it annulled Regulation No 2808/89 against dumped or subsidised imports from on the grounds that the Community insti- countries not members of the European tutions had not actually considered whe- Economic Community, 8 which was in ther the Community producer of the pro- force at that time. duct referred to in the regulation in ques- tion, namely PEM, had, by its refusal to sell, itself contributed to the injury suffered, and had not established that the injury on which they based their conclusions did not derive from the factors mentioned by the applicant, and had therefore not followed the proper procedure in determining the 16. By Regulation (EEC) No 707/89, 9the injury. Commission imposed a provisional anti- dumping duty of 10.7% on the product concerned.

20. By decision of 31 March 1992 the French Conseil de la Concurrence (Compe- 17. After extending the validity of the tition Council) found PEM liable for abuse provisional duty, the Council, by Regula- of a dominant position between October tion No 2808/89, 10 imposed duties of 21.8 1982 and the end of 1984 by Société and 22.0% on the product concerned and Électrométallurgique du Planet (SEMP), a made that anti-dumping duty definitive. company taken over by PEM in December 1985. By judgment of 14 January 1993 the Cour d'Appel (Court of Appeal), Paris, 8 —OJ 1984 L 201, p. 1. upheld that decision. 9 — Regulation (EEC) No 707/89 of 17 March 1989 imposing a provisional anti-dumping duty on imports of calcium metal originating in the People's Republic of China or the Soviet Union (OJ 1989 I. 78, p. 10). 11 — Cited above m footnote 2. 10 — Cited above in footnote 3. 12 — Cited above in footnote 2.

25. On 14 October 1992 IPS received from 30. On 21 April 1994 the Commission the Commission the memorandum on adopted Regulation (EC) No 892/94 injury which PEM had sent the Commis- imposing a provisional anti-dumping duty sion on 1 July 1992. on imports of calcium metal originating in

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the People's Republic of China and Rus- IV — Proceedings before the Court of First sia 13 ('the provisional regulation'). 14 Instance

34. On 9 January 1995 IPS brought an action before the Court of First Instance for annulment of the regulation at issue or, in 31. On 31 May 1994 IPS submitted obser- the alternative, a declaration that the vations on the provisional regulation, regulation was unenforceable against it, expressing numerous reservations with and an order that the Council pay the costs. respect to it. The Commission replied to those observations by letter of 14 June 1994.

35. The Council contended that the Court should dismiss the action and order IPS to pay the costs. 32. On 11 August 1994 the Commission informed IPS of the essential facts and considerations on the basis of which it was intended to propose the imposition of a definitive anti-dumping duty on imports of calcium metal originating in China and 36. Intervening, the Commission, PEM and Russia. the Chambre Syndicale contended that the Court should dismiss the action and order IPS to pay the costs.

fair hearing; (c) infringement of Arti- A — Admissibility of the pleading of PEM cles 4(4) 18 and 2(12)19of the basic regula- and the Chambre Syndicale tion and manifest error of assessment as regards like products; (d) infringement of Article 4 of the basic regulation and man- ifest error of assessment of the injury to the Community industry; (e) infringement of Article 12 20 of the basic regulation and manifest error of assessment; (f) breach of Article 190 of the EC Treaty (now Arti- 40. PEM and the Chambre Syndicale, cle 253 EC); and (g) misuse of powers. which intervened before the Court of First Instance, explain in the response lodged by them that they decided not to lodge a fresh pleading and they refer to the statement in intervention which they put before the Court of First Instance, photocopied 38. So far as concerns the plea raised by the extracts of which they adduce. Council that the application was inadmis- sible, the Court of First Instance held that, since the circumstances which justified finding the action admissible in Extramet I still prevailed, IPS's application had to be declared admissible. However, it dismissed the application as unfounded.

41. Under Article 115(2) of the Rules of Procedure of the Court of Justice, a response is to contain (Article 115(2)(c)) the pleas in law and legal arguments relied on and (Article 115(2)(d)) the form of order sought by the respondent. That V — Proceedings before the Court of Jus- provision means that the pleas must be tice included in the pleading itself and a refer- ence to another document or pleading cannot be substituted for them.

44. The Commission contends that the 47. In its cross-appeal, the Commission Court should: (a) set aside the judgment contends that the application brought of the Court of First Instance in so far as it before the Court of First Instance should held that the application in Case T-2/95 have been declared inadmissible. In con- was admissible; and (b) hold that applica- trast to the facts of Extramet I, in the tion inadmissible. In the alternative, it present case the appellant refused to obtain contends that the Court should: (a) dismiss supplies of calcium metal from the Com- the appeal; and (b) in any event order IPS to munity producer, PEM — it did not pay the costs. encounter difficulties in obtaining supplies. Consequently, the part of the contested judgment concerning admissibility (para- 21 — The Court has held, in the case of actions brought against graph 53) is wrong in law in its application Member States for failure to fulfil obligations, that it is not sufficient to refer to complaints formulated in the course of of the Extramet I judgment and, further- the pre-litigation procedure if they arc not included, at least in summary form, in the application; see Case more, is founded on contradictory and C-347/88 Commission v Greece [19901 ECR I-4747, paragraphs 26 to 30, and point 8 of the Opinion of inadequate reasoning. Advocate General Tesauro in that case, and Case C-43/90 Commission v Germany |1992] ECR I-1909, paragraph 8. The Court of First Instance adopted a similar solution in Joined Cases T-305/94 to T-307/94, T-313/94 to T-316/94, T-318/94, T-325/94, T-328/94, T-329/94 and T-335/94 Limburgse Vinyl Maatschappif and Others v Commission [1999] ECR II-931 (paragraphs 39 and 40), an action for annulment where the application referred globally to annexed documents detailing the applicants' 48. Specifically, the Commission submits pleas i n law and arguments. that the contradictory and inadequate rea-

soning in the contested judgment on the traders did. Given that nothing distin- issue of admissibility means that the judg- guishes IPS from the other traders, the ment should be set aside. It maintains that application brought before the Court of the Court of First Instance contradicts itself First Instance should, on a correct inter- in stating in paragraph 219 that the institu- pretation of the Extramet I judgment, have tions neither made an error of fact, nor been declared inadmissible. infringed provisions 22 of the basic regula- tion, nor made a manifest error of assess- ment by considering that 'the calcium metal produced by PEM and calcium metal from China and Russia were like products within 50. IPS takes the view that the cross-appeal the meaning of Article 2(12) of the basic is inadmissible inasmuch as the Court of regulation'. According to the Commission, First Instance rejected the plea of admissi- the contradiction is established in that the bility after assessing the documents in the Court of First Instance found in para- case. graph 235 of the contested judgment: 'For the investigation period from 1 July 1991 to 31 October 1992, PEM cannot therefore be considered to have been the author of its own injury. During that period, the appli- cant on the one hand did not think it appropriate to resume commercial relations with PEM, and on the other, obtained B — Extramet I and the issue as to admis- supplies of calcium metal from China and sibility Russia despite the imposition of anti-dump- ing duties.' Furthermore, it is clear from paragraphs 249 to 256 of the contested judgment that PEM proposed to IPS that it 51. In Case C-358/89, as described in the test PEM's own N calcium, which was contested judgment, Extramet's application logical since the calcium from China and was held admissible by Extramet I. As the Russia was also nuclear calcium; IPS's only Court of First Instance correctly states in difficulty was the price. paragraph 49, the sole criterion of admis- sibility applied by the Court of Justice in Extramet I was direct and individual con- cern to the applicant. The Court of First Instance recalls paragraphs 13 and 14 of Extramet I according to which 'although, in the light of the criteria set out in the second paragraph of Article 173 of the Treaty, regulations imposing anti-dumping duties are in fact, as regards their nature 49. In short, the Commission considers and their scope, of a legislative character, that, apart from the question of the price inasmuch as they apply to all the traders of the product (nuclear calcium) which IPS concerned, their provisions may none the sought to obtain from PEM, IPS was in fact less be of individual concern to certain able to obtain supplies from PEM, as other traders. It follows that measures imposing anti-dumping duties may, without losing their character as regulations, be of indivi- 22 — Articles 4(1) and (4) and 2(12). dual concern in certain circumstances to

53. The finding of the Court of First Instance that IPS refused to take the 52. The Court of First Instance then states product offered to it by PEM because it (paragraph 52) that in Extramét I the did not have the desired characteristics is Court of Justice did not base the admissi- one of the factors supporting the Court of bility of the application exclusively on the First Instance's assessment that the applica- difficulties encountered by Extramet in tion brought by IPS was admissible. Thus, obtaining supplies from the sole Commu- the Court of First Instance was correct in nity producer. In fact it based its decision holding (paragraph 54) that 'since the on a series of factors constituting a situa- circumstances which justified finding the tion peculiar to Extramet which differen- application admissible in Case C-358/89 ... tiated it, as regards the measure in ques- still prevail, the present application must be tion, from all other traders. More specifi- declared admissible'. cally, the Court of First Instance found in the contested judgment that there was a set of specific circumstances which differenti- ated IPS: it was the largest importer of the product forming the subject-matter of the anti-dumping measure and, at the same time, the end-user of the product; in 54. As regards the Commission's other addition, its business activities depended submissions relating to contradictory rea- to a very large extent on those imports and soning in the contested judgment, they were seriously affected by the contested cannot in my view lead to the setting aside regulation in view of the limited number of of the judgment, because those complaints producers of the product concerned and of concern other sections. the difficulties which it encountered in obtaining supplies from the sole Commu- nity producer, which, moreover, was its main competitor for the processed product. The Court of First Instance found next (paragraph 53) that 'the Commission does not dispute that PEM is unable to supply 55. Consequently, the plea of inadmissibil- standard quality primary calcium metal ity raised by the Commission must be with the characteristics desired by the rejected in its entirety.

57. In the first part of the first ground of 59. In its appeal, IPS refers to the reasoning appeal, IPS centres its criticism on para- of the Court of First Instance, as set out in graphs 91, 95, 97 and 99 of the contested paragraphs 87 to 102, without specifically' judgment. It submits that the finding that mentioning paragraph 101; it criticises only the Commission could commence a fresh the finding of the Court of First Instance investigation on the basis of a . different (paragraph 98 of the appeal) that the reference period, that is to say changing the 'change in the investigation period' did original reference period, meant, first, that not affect its rights. That, in my view, is the Extramet I judgment of the Court of sufficient for IPS to be considered to have Justice was not complied with, and second, validly pleaded an error of law in para- that, through acceptance of the legality of graph 101 of the contested judgment since that 'régularisation' procedure, as IPS it specifies the paragraph by reference to its describes compliance with the annulling content, even though the paragraph is not judgment, the Court of First Instance referred to again by its number. Conse- infringed Article 174 of the EC Treaty quently, the Commission's arguments to the (now, after amendment, Article 231 EC), contrary must be rejected. Article 176 of the EC Treaty (now Arti- cle 233 EC) and Article 7(1) and (9) and Article 14 of the basic regulation. Accord- ing to the appellant, the Court of First Instance erred in law in its interpretation of 60. Second, with regard to paragraph 101 Article 176 of the EC Treaty, offending of the contested judgment, I consider that

63. The appellant contends that the Court 61. Third, the appellant contends in the of First Instance was wrong to find that the first part of the first ground of appeal that Commission's actions complied fully with the Court of First Instance erred by failing the Extramet II judgment of the Court of to observe the principles of proportionality Justice. In its submission, the annulment and the protection of legitimate expecta- was for substantive reasons and entailed tions in applying Article 176 of the EC the annulment of all the preparatory acts, Treaty: the contested judgment contains an including the investigation carried out, error of law because it was found that the which led to the adoption of Regulation Commission could change the reference No 2557/94. period and the investigation did not have to be limited to the question of injury in the original period but could also relate to the new reference period, with the result that higher anti-dumping duties could be imposed.

64. It is settled case-law that where the Court annuls Community acts on the ground of a formal or procedural defect (such as failure to state adequate reasons, to consult the relevant institutions or to hear interested parties), compliance with 62. In the present case, I consider that the judgment will not necessarily require those arguments are inadmissible inasmuch the institution concerned to start the entire as they are put forward for the first time in procedure afresh. 23That is so both where the appeal proceedings, similar arguments not having been put forward at first instance: their examination would result 23 — See point 35 of the Opinion of Advocate General Jacobs in in the substance of the case being consid- Case C-41W96 Spam v Commission [1998] ECR I-6993.

the defect is purely formal or procedural 24 first, that in Extramet II the Court of and where the measure is invalid on the Justice annulled Regulation No 2808/89 on grounds of substantive illegality. 25 the ground that the Community institutions had not actually considered whether the Community producer, PEM, had itself contributed, by its refusal to sell, to the injury suffered, and had not established that the injury on which they based their conclusions did not derive from the factors alleged by Extramet and, second, that the

In Case C-415/96 Spain v Commission, the Kingdom of Spain decision to initiate the proceeding, in order brought an action for annulment of articles of a Commis- sion decision relating to the grant of State aid which was to conduct an investigation into the same adopted to comply with the judgment in Joined Cases reference period as that taken into account C-278/92, C-279/92 and C-280/92 Spain v Commission [1994] ECR I-4103, by which the Court of Justice had in Regulation No 2808/89 (annulled by the granted in part an application for annulment of the Extramet II judgment), that investigation decision adopted originally. While the Court, in its judgment in Case C-415/96, did not consider whether being limited to whether PEM had not itself the ground for annulment concerned substance or proce- dure, it pointed out that, by the operative part of the contributed, by its refusal to sell, to the judgment in Joined Cases C-278/92, C-279/92 and injury suffered by the Community industry. C-280/92, it had annulled articles of the decision at issue in that case because of insufficient reasoning.

Treaty.' 66. On the basis of the foregoing case-law, 25 — It may be noted that, at point 31 of his Opinion in Case C-415/96 Spain v Commission, Advocate General Jacobs, I consider that in the present case too, responding to a submission by the Commission that, where irrespective of whether the annulment was a declaration of nullity is based on a substantive illegality, Article 176 precludes the institution concerned from on formal or substantive grounds, it was simply replacing the act annulled by another identical act, stated, in my view correctly, that 'even where there has open to the Commission to use elements of been a finding of substantive illegality, there will be circumstances where the institution concerned may prop- the earlier proceeding and the investigation erly adopt an act replacing the annulled provisions, provided of course that the illegality is cured in the fresh in respect of the original reference period, act'. without violating its obligation to comply

69. Consequently, the Court of First Instance was right to hold that the Com- mission could resume the proceeding on the basis of all the procedural acts which were 67. In the present case, as is stated in the not affected by the annulling judgment of contested judgment, the defect consisted in the Court of Justice and the appellant's the fact that the Community institutions arguments to the contrary must be rejected failed, first, to consider whether the Com- as unfounded. munity producer of the product to which the annulled regulation related, namely PEM, had not, by its refusal to sell to IPS, itself contributed to the injury suffered, and second, to establish whether the injury caused did not derive from factors men- tioned by Extramet, and had therefore not followed the proper procedure in determin- (2) Second part of the first ground of ing the injury. That defect arose after the appeal: infringement of Article 7(1) and carrying out of the preparatory acts con- (9) and Article 14 of the basic regulation stituted by the initiation of the proceeding and the decision to conduct the original investigation, and for that reason I consider that they were not affected by the annul- ment. 26 70. In the second part of the first ground of appeal, IPS contends that the Court of First Instance infringed Article 7(1) and (9) and 26 — It may be noted that in the judgment in Case C-415/96 Article 14 of the basic regulation in seeking Spain v Commission (cited above in footnote 231, at to justify the legality of the method adopted paragraph 18, reference is made to a letter that the Commission addressed to the Kingdom of Spain, in which by the Commission for resuming the inves- it stated: 'In accordance with the judgment of the Court of Justice of 14 September 1994 (in Case C-278/92), annul- tigation, finding that, by reason of the ling a number of articles of the Commission's Decision of annulment, the proceeding was open and 25 March 1992, the Commission is preparing a new draft of its definitive decision in the procedure initiated pursuant to Article 93(2) of the EC Treaty ... which, in accordance with that judgment, is still open. The draft will be submitted soon to the College of Commissioners for 27 — See, for example, Case C-415/96 Spam v Commission adoption' (emphasis added). The Court did not disapprove (cited above i n footnote 23), paragraph 31, and Joined of that approach to implementing the decision adopted in Cases 97/86, 193/86, 99/86 and 215/86 Asteris v Commis- Joined Cases C-278/92, C-279/92 and C-2S0/92. sion [19881 ECR 2181, paragraph 27.

72. First of all, it is to be recalled that the Court of First Instance found in paragraph 75. The above solution, adopted by the 99 of the contested judgment that, as the Commission and described in the contested initial procedure had not been annulled by judgment, is also justified by the logic of the Extramet II judgment and dumping the procedure laid down for the adoption was still in progress, the Commission did of anti-dumping measures. As the Court not exceed its discretion by deciding to has found, 28 anti-dumping proceedings continue the proceeding which had been started in 1989 and by conducting a fresh investigation on the basis of a different 28 — Case C-170/89 BEUC v Commission [1991] ECR I-5709, reference period. It found in paragraph 101 paragraph 25.

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Commission acted within the discretion lawfully decided upon on the basis of a new available to it in also examining a new reference period within the framework of reference period, may be drawn from the original proceeding, as follows from the Article 7(1)(g) of the basic regulation, very text of the contested judgment. according to which the investigation period is 'normally' to cover a period of not less than six months immediately prior to the initiation of the proceeding. 33 In other words, the Community legislature wishes the results of the investigation to be based on the most recent information. 34 In com- 80. In view of the foregoing, I consider that plying with the annulling judgment of the the arguments put forward by the appellant Court of Justice, the Commission must in the second part of the first ground of observe the provisions of the basic regula- appeal are likewise unfounded and the first tion laying down the manner in which it is ground of appeal is thus to be rejected in its to act. entirety.

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(1) First part of the second ground of judgment, the argument before the Court of appeal: late notification of the memoran- First Instance relating to communication of dum lodged by PEM on 1 July 1992 PEM's memorandum was included by IPS within the framework of reviewing the legality of the conduct of the investigation, which forms part of the whole procedure 82. In the first part of the second ground of for the adoption of anti-dumping measures. appeal, the appellant contends that the Even though there was no direct express Court of First Instance was wrong in reference to Article 7, I do not think that holding (paragraphs 111, 112 and 113) that is sufficient for the relevant ground of that the right of the applicant (now the appeal to be rejected as inadmissible. appellant) to a fair hearing was not Besides, paragraph 105 of the contested infringed as a result of the memorandum judgment, where IPS's line of argument is on injury, lodged by PEM with the Com- referred to, expressly mentions Article 7 of mission on 1 July 1992, not being commu- the basic regulation. nicated to it until 14 October 1992. The Court of First Instance states, however, that IPS had not submitted a request for the document in question to be communicated to it.

(b) Substance

37 — In Ał-Jubaił (cited above in footnote 35), the Court stated that 'when interpreting Article 7(4) of the basic regulation' (that is to say Article 7(4) of the previously applicable Council Regulation No 2176/84, cited above in foot note 8 — a provision similar in content to Article 7(4) of the basic regulation applicable in the present case) the requirements stemming from the right to a fair hearing 'must be observed not only in the course of proceedings which may result in the imposition of penalties, but also in

ground. In ruling in that way the Court not provide all the procedural guarantees for the protec tion of the individual which may exist in certain national applied the law correctly, and the argu legal systems'. The Court concluded (paragraph 17) that 'in performing their duty to provide information, the ments put forward to the contrary are Community institutions must act with all due diligence by seeking [as the Court had previously pointed out — see, unfounded and must be rejected. for example, Case 264/82 Timex v Council and Commis sion [1985] ECR 849, paragraph 29 and, in particular, paragraph 30] to provide the undertakings concerned, as far as is compatible with the obligation not to disclose business secrets, with information relevant to the defence of their interests, choosing, if necessary on their own initiative, the appropriate means of providing such infor

Thus, factually misconceived because the Court for example, it was apparent from the material before the of First Instance finds in the contested Court that, in the proceeding, internal Council documents were used, the information in which was not brought to judgment that the letter had in any event the attention of the applicants by other means (paragraph 19). Also, a letter, which the applicants claimed never to been communicated to IPS on 14 Octo have received, was sent without using registered post. Those irregularities led the Court to annul a regulation ber 1992, that is to say one month before imposing a definitive anti-dumping duty. the publication on 14 November 1992 of

(2) Second part of the second ground of out by PEM in its factory at La Roche de appeal: irregularities found concerning Rame. 38 As regards that last memorandum access to material in the file from PEM, the Court of First Instance acknowledged (paragraph 142) that it could properly be classified as a confiden- tial document within the meaning of Arti- cle 8 of the basic regulation, since it contained confidential information on PEM's manufacturing processes. However, it found that the Commission had not 91. The appellant submits, furthermore, complied with its obligations concerning that the contested judgment should be set access to the file: to begin with, it replied aside because the numerous irregularities with considerable delay to the applicant's observed in relation to access to material in legitimate requests; next, it did not provide the file, which here concern documents it with a non-confidential summary of the other than PEM's letter of 1 July 1992, letter in question; and finally, it had not were found not to have prejudiced its rights shown that it made the necessary efforts to (paragraphs 140, 142 and 143). obtain a non-confidential version of the document. In particular, it was at the request of the applicant, not the Commis- sion, that PEM decided to transmit the document to the applicant, on 21 May 1994. The Court of First Instance never- theless concluded (paragraph 143) with regard to the irregularities found that IPS was able to submit its observations on the document in good time on 27 May 1994, 92. On the question whether IPS's rights that is to say before the definitive regula- were affected because, as it submits, it did tion was adopted. not have due access to material in the file, the Court of First Instance found (para- graph 139) that, with respect to PEM's letters to the Commission of 5, 11 and 19 August 1993, the applicant did not make a written request for communication in accordance with Article 7(4)(a) of the 93. First of all, having regard to the content basic regulation. The Commission was of Article 7(4) of the basic regulation, I therefore not obliged to transmit them. In consider that, in the absence of a written its letter of 5 October 1993 the applicant request by IPS pursuant to Article 7(4)(a), stated that it had seen the list of the the Commission was not obliged under that documents sent by PEM to the Commission and that some of them were already known to it, since they were letters between itself 38 — At paragraph 140, the Court or First Instance states that tile Commission confirmed at the hearing, in reply to and PEM. It had therefore limited its questions put to it, that the letters of 5, 11 and 19 August 1993 from PEM to the Commission were mere covering request for access to the Commission's letters enclosing the correspondence hetween the applicant and PEM. In those circumstances, even supposing that the confidential file to, inter alia, the letter of Commission was obliged to communicate those documents 5 August 1993 from PEM to the Commis- despite the lack of an express written request to that effect, the failure to communicate them did not, in this case, sion concerning the technical work carried involve a breach of the applicant's procedural rights.

94. Next, in contrast to the facts in Al- Jubail, 39 here the undertaking concerned was ultimately able to take cognisance in good time of the content of PEM's letters of V I I I — Costs 5, 11 and 19 August 1993, whose existence and content it was aware of, as is indicated in paragraph 139 of the contested judg- ment. 97. Under Article 69(2) of the Rules of Procedure of the Court of Justice, which, in accordance with Article 118, also applies to the appeal procedure, the unsuccessful party is to be ordered to pay the costs if 95. Finally, as regards the failure to com- they have been applied for in the successful municate a non-confidential summary of party's pleadings; under the first subpara- the document, classified as confidential graph of Article 69(3), where each party within the meaning of Article 8 of the basic succeeds on some and fails on other heads, regulation, which was sent by PEM to the or where the circumstances are exceptional, Commission on 5 August 1993 and was the Court may order that the costs be finally seen by IPS on 21 May 1994 after shared or that the parties bear their own the Commission had adopted the provi- costs. sional regulation,40 I consider that that failure on the part of the Commission cannot be regarded as having infringed 41 — It is to be noted here that, in Joined Cases T-159/94 and T-160/94 Ajmomoto and NutmSweet v Council [1997] IPS's right to a fair hearing, since the ECR II-2461, at paragraph 87, the Court of First Instance held that, where, in the course of the procedure leading to document was ultimately communicated the adoption of a regulation imposing a definitive duty, to it by PEM as much as five months steps are taken to remedy a defect vitiating the adoption of the corresponding regulation imposing a provisional duty, before the Council adopted the regulation the illegality of the provisional regulation does not render the definitive regulation illegal. Only in so far as the defect at issue on 19 October 1994. That period has not been remedied, and in so far as the definitive regulation refers to the provisional regulation, will the illegality of the earlier regulation render the later one illegal. However appeals, which are still pending before the Court of Justice, have been brought against that judgment 39 — Cited above in footnote 35. (Case C-76/98 P Ajinomoto v Council and Case C-77/98 P NutraSweet v Council; OJ 1998 C 166, p. 5 and p. 6 40 — The provisional regulation (No 892/94) was adopted on respectively). 21 April 1994.

— dismiss the appeal brought by Industrie des Poudres Sphériques (IPS);

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OPINION OF MR COSMAS — CASE C-4S8/98 P

— dismiss the Commission's cross-appeal;

— order IPS to bear its own costs and pay the Council's costs;

— order the Commission to bear its own costs; and