C-239/99

OPINION OF MR JACOBS — CASE C-239/99

OPINION OF ADVOCATE GENERAL JACOBS delivered on 16 November 2000 1

1. This reference for a preliminary ruling The anti-dumping procedure concerns a Council regulation imposing a definitive anti-dumping duty on imports of ball bearings originating in Japan, the essential operative provisions of which have been annulled by the Court of First 2. A definitive anti-dumping duty on Instance on general grounds, but only in so imports of ball bearings with a greatest far as they imposed a duty on the products external diameter of more than 30 mm of the two manufacturers who had brought (hereinafter simply 'ball bearings') originat- proceedings in good time under what was ing in Japan was first imposed by Council then Article 173 of the EEC Treaty (now, Regulation No 1739/85. 2It applied to all after amendment, Article 230 EC). To what such ball bearings, with the exception of extent may a Community importer of ball those manufactured by four named com- bearings manufactured by its Japanese panies. Individual rates of duty were set for parent company, to whose products the the products of 10 other named manufac- duty also applies but which was not turers, of whom only four need be men- involved or referred to in the annulment tioned here. A duty of 3.2% was imposed proceedings, rely on that annulment before on ball bearings manufactured by NTN its national courts in order to seek remis- Toyo Bearing Co Ltd ('NTN'), of 5.5% on sion or repayment of the anti-dumping duty those manufactured by Koyo Seiko Co Ltd levied? That is, in essence, the question ('Koyo Seiko'), of 16.7% on those manu- raised by the Finanzgericht (Finance factured by Nippon Seiko KK ('NSK') and Court), Düsseldorf, in the present case. of 13.9% on those manufactured by Nachi Fujikoshi Corporation ('Nachi Fujikoshi').

4. The review came to an end on 28 Sep- tember 1992 with Council Regulation No 2849/92 ('the contested regulation'), 4 some three and a half years after its initiation and over two years after Regula- tion No 1739/85 had been due to expire. In its reasoning, the Council found dump- The judicial review ing margins still to exist (paragraphs 21 to 23 of the preamble), considered whether the situation of the Community industry was such that the expiry of the measures in place would lead to a recurrence of injury and concluded that it would (paragraphs 26 to 39). Taking the view that the interest At first instance of the Community clearly lay in maintain- ing protection for its ball bearings industry (paragraphs 40 to 44), and after comparing price levels (paragraphs 45 to 52), the Council decided to modify the definitive 6. Regulation No 2849/92 was challenged duties in existence. The basic level of duty before the Court of Justice by NTN and Koyo Seiko (the two Japanese manufactur- ers most adversely affected by the changed 3 — Council Regulation (EEC) No 2423/88 of 11 July 1988 on rates of duty) by applications within the protection against clumped or subsidised imports from two-month time-limit laid down in what countries not members of the European Economic Com- munity, OJ 1988 L 209, p. 1; previously Article 15(1) of was then the third paragraph of Article 173 Council Regulation (EEC) No 2176/84 of 23 July 1984 on protection against dumped or subsidised imports from of the EEC Treaty. Those actions against countries not members of the European Economic Com- the Council were subsequently transferred munity, OJ 1984 L 201, p. 1. 4 — Council Regulation (EEC) No 2849/92 of 28 September to the Court of First Instance as Cases 1992 modifying the definitive anti-dumping duty on imports T-163/94 and T-165/94. In those proceed- of ball hearings with a greatest external diameter exceeding 30 mm originating in Japan imposed by Regulation (EEC) ings, the Council was supported by the No 1739/85, OJ 1992 L 286, p. 2. Commission and by the Federation of

8. In the first of those pleas, the applicants argued that the Council had failed to establish the existence of injury within the meaning of Article 4(1) of the basic regula- 10. On both those grounds, the Court of tion, under which, essentially, a determina- First Instance annulled Article 1 of the tion of injury may be made only where the contested regulation 'in so far as it imposes injury or threatened injury to a Community an anti-dumping duty on the applicants'. industry is attributable to the effects of dumping and not to other factors. In paragraphs 69 to 116 of its judgment, the Court of First Instance examined in detail paragraphs 27 to 38 of the Council's reasoning in the contested regulation. In several of those paragraphs it found errors On appeal of fact, incomplete statements of fact, hypotheses or statements too vague to support any conclusion. It also found that the Council had based part of its reasoning 11. On 12 July 1995, the Commission on the existence of a recession, which could lodged an appeal (Case C-245/95 P) against the judgment in Joined Cases T-163/94 and T-165/94, on the ground that the Court of First Instance had committed an error of 5 — Joined Cases T-163/94 and T-165/94 NTN Corporation and Koyo Seiko v Council [1995] ECR II-1381. law, first, in its interpretation of the

I - 1202

NACHI EUROPE

definition of injury under the basic regula- order sought by NTN and Koyo Seiko but tion and, second, in its interpretation and also to confirm that the annulment of application of Article 7(9)(a) of that regu- Article 1 of the contested regulation lation, in so far as it considered that the applied equally to NSK. At paragraph 24 excessive duration of the investigation of its judgment, the Court of Justice held necessarily entailed the annulment of the that the latter claim was inadmissible under contested regulation. the fourth paragraph of Article 37 of its Statute, since an application to intervene must be limited to supporting the form of order sought by one of the parties.

I - 1203

OPINION OF MR JACOBS — CASE C-239/99

of DEM 58 891.51 in anti-dumping duty, 20. The Finanzgericht therefore stayed the imposed by tax notices of 17 November proceedings before it and sought a preli- 1995 and 29 December 1995. minary ruling on the following questions:

17. In a letter received by the Hauptzollamt '1. Is Article 1(2) of Regulation (EEC) (Principal Customs Office) Krefeld on No 2849/92 invalid? 19 November 1998, Nachi Europe requested repayment of the anti-dumping duty on the ground that its imposition was unlawful in view of the judgments in Joined Cases T-163/94 and T-165/94 and in Case C-245/95 P. 2. If the first question is to be answered in the affirmative, from what point in time is Article 1(2) of Regulation (EEC) No 2849/92 to be considered invalid in regard to the plaintiff?' 18. The Hauptzollamt refused the request for repayment by a ruling of 11 January 1999. Nachi Europe applied for reconsi- deration of that refusal, but the Hauptzol- lamt declined on the ground that it was not in a position to determine whether the 21. Written observations have been sub- contested regulation was unlawful. mitted by Nachi Europe, by the Council and by the Commission, all of whom also presented oral argument at the hearing.

19. Nachi Europe then brought proceed- ings before the Finanzgericht Düsseldorf, which considered that the claim for repay- ment would be bound to succeed if Arti- cle 1(2) of the contested regulation could be established to be invalid. The Finanzger- Analysis icht further noted that, on the one hand, the judgment of the Court of First Instance declared Article 1 invalid only vis-à-vis NTN and Koyo Seiko but that, on the other hand, the grounds on which that 22. The national court asks whether Arti- Court had reached its decision were of cle 1(2) of the contested regulation is general application and that the judgment invalid and, if so, from what point in time of the Court of Justice on appeal was based it is to be regarded as invalid vis-à-vis on equally general considerations. Nachi Europe.

24. The debate before the Court has indeed concerned that more limited question, together with the further question whether Nachi Europe, having failed to bring a 27. Regulations, being measures of general direct challenge within the time-limit pre- application, are in principle not susceptible scribed for that purpose, is now barred to challenge by individuals under those from pleading the invalidity of the regula- provisions. Some regulations, however, tion before a national court. may be of direct and individual concern to a natural or legal person and may thus be contested by that person directly before the Court of First Instance under Arti- cle 230 EC. 25. Before broaching either question, how- ever, I consider it useful to examine a matter which is of importance to both of them, namely the circumstances in which a direct action seeking the annulment of the 28. Anti-dumping regulations are fre- contested regulation could be brought quently (and accurately) described as being before the Court of First Instance. of a hybrid nature. On the one hand, they are measures of general application, since they apply to all imports of the specified products, regardless of the identity of the importer who has to pay the duty. On the other hand, they directly and individually concern exporters of those products — at Rights of action against the contested least exporters specified by name — and regulation importers linked to such exporters by a relationship of exclusivity.

26. Under Article 230 EC the Member States and, subject to certain variations, the Community institutions enjoy a right to challenge the validity of Community mea- 29. In the present case, it is indisputable sures without being required to establish a that Nachi Fujikoshi itself could have

brought an action directly before the Court applications where, as in Extrámét, 10 the of First Instance to seek the annulment of importer can establish the existence of the regulation in so far as its products were some other circumstances meeting the concerned, in the same way that NTN and Flaumann test. 11 Koyo Seiko, who were in an exactly comparable position, actually did. Manu- facturers or exporters of products on which an anti-dumping duty is imposed are always capable of being regarded as 32. In the present case, it is stated in directly and individually concerned, at least paragraph 6 of the preamble to the con- in so far as they are identified in the tested regulation that the Commission regulation or concerned by the preliminary 'sought and verified all information it investigations. 9 deemed necessary for the purposes of this proceeding and carried out investigations at the premises of the following companies: ... Nachi (Germany) GmbH ...'.At paragraph 17, it is stated: 'Where exports were made to importers in the Community related to the Japanese manufacturers, export prices 30. However, the national proceedings here were reconstructed on the basis of resale are brought not by the parent company prices to the first independent buyer in the Nachi Fujikoshi, on whose products the Community...' duty was imposed, but by its subsidiary Nachi Europe, which imports those pro- ducts and pays the duty. The situation as regards importers may vary, although the rules are well established. 33. According to documents in the national court's case-file, Nachi (Germany) GmbH was the former name of Nachi Europe, the applicant in the main proceedings, which is associated with Nachi Fujikoshi. It is clear that the company was involved in the investigations and that its prices were used 31. Applications for annulment brought by in order to establish the dumping margins importers are admissible where, as provi- involved. ded for in Article 2(8)(b) of the basic regulation, there is an association between the importer and the exporter or manufac- turer on whose products the duty has been imposed and the importer's resale prices 34. In those circumstances, there can be no have been used to establish the existence of doubt that Nachi Europe could have the dumping or the anti-dumping duty brought proceedings directly before the itself. In addition, the Court has accepted

38. The Council and the Commission, however, point to the clearly circumscribed terms of the operative part of the annulling Effect of the annulment as regards imports judgment and refer to the AssiDomän of Nachi Fujikoshi ball bearings case, 14 in which the Court considered that the annulment of a decision vis-à-vis cer- tain addressees as a result of an action brought by them has no effect on its validity vis-à-vis other addressees who were 36. In Case T-163/94 NTN sought annul- not parties to the proceedings. ment of Article 1 of the contested regula- tion in so far as it 'imposes an anti- dumping duty on the applicant' and in 13 — Strictly speaking, that wording is inaccurate, since the duty Case T-165/94 Koyo Seiko asked for a was imposed not on the applicants hut on imports of their declaration that the regulation was 'void in products, nor was it to lie paid by them but by the importers (even though those importers may have been their subsidiaries). 14 — Case C-310/97 P Commission v AssiDomän Kraft Pro- ducts and Others [1999] LCR I-5363, in particular 12 — C a s e121/77 NACHI Fujikoshi v Council [1979] ECR 1363. paragraphs 52 to 54 of the judgment.

I - 1207

OPINION OF MR JACOBS — CASE C-239/99

39. I agree essentially with that latter view, mer category, so that a partial annulment although there are differences between the may be limited in its effects to individual situation in AssiDomän and the present. parties.

I - 1208

NACHI EUROPE

17 — At paragraph 52 of the judgment. IS — Council Regulation (EEC) No 2089/84 of 19 July 1984 imposing a definitive anti-dumping duty on imports of 47. It is true that in the very first group of certain bail bearings originating i n Japan and Singapore, anti-dumping cases to come before the OJ 1984 L 193, p. 1. 1 9 — Case 240/84 Tuyo v C o u n c i l[1987| ECU 1809, Case 255/84 Nachi Fujikoshi v Council [1987] ECU 1861, Case 256/84 Koyo Seiko v Council [19871] ECR 1899 and Case 258/84 Nippon Seiko v Council [1987] ECR 1923. 20 — Paragraphs 7 and 8 of the judgment in Case 255/84.

I - 1209

OPINION OF MR JACOBS — CASE C-239/99

51. In those circumstances, however, I do not see what interest NSK or its subsidi- 49. I should perhaps mention, however, a aries had established in the result of the circumstance that might seem to support case — at least in so far as they were the view that the effects of the annulment supporting NTN and Koyo Seiko. The were broader than that, namely the maintenance or annulment of the duty on approach taken by the Court of Justice in NTN's and Koyo Seiko's products could granting NSK and its European subsidiaries have no direct effect on NSK's business. It leave to intervene in the NTN and Koyo could have had an indirect effect, since Seiko appeal. 23 annulment of the duty could only make their products more competitive than NSK's, but in that case one would have expected NSK and its subsidiaries to be supporting the Commission, not NTN and Koyo Seiko. 50. The Court stated that NSK had had an independent right of action against the contested regulation because it was directly and individually concerned by those parts of the regulation which imposed a duty on its products, though not by the others, and

52. I confess that I consider the order 21 — Case 113/77 NTN Toyo Bearing Company v Council [1979] ECR 1185, Case 118/77 ISO v Council [1979] ECR granting leave to intervene to have been 1277, Case 119/77 Nippon Seiko v Council and Commis- mistaken. It is conceivable that NSK could sion [1979] ECR 1303, Case 120/77 Koyo Seiko v Council and Commission [1979] ECR 1337 and Case 121/77 Nachi Fujikoshi v Council, cited above in note 12. 22 — See paragraphs 22 to 24 of the judgment in Case 118/77 ISO, cited above. 24 — Paragraphs 8 and 9 of the order. 23 — See the order cited in note 6. 25 — Paragraphs 10 and 11 of the order.

56. That case concerned a beneficiary of State aid the recovery of which had been ordered following a Commission decision declaring it illegal. The beneficiary had been made aware of the Commission's 54. I shall now turn to the second question decision and of its undoubted right to which arises in this case and which, although it jostles for attention with the first, is in many respects an entirely sepa- 29 — See, for example. Case 20/65 Callotti v Court of Justice [1965] ECR 847, Case 156/77 Commission v Belgium rate matter. [1978] ECK 1881 and Case C-183/91 Commission v Greece [1993] ECR I-3131, paragraphs 9 and 10 of the judgment. 30 — Case C-188/92 TWD Textilwerke Deggendorf v federal Republic of Germany [1994] ECR I-833. 26 — See below, paragraphs SO to 84. 31 — Cited above, especially at paragraphs 13 to 18 of the 27 — See paragraph 14 above. judgment; see also Case C-178/95 Wiljo v Belgian State 28 — At paragraphs 80 to 84. [1997] ECR I-585, paragraphs 19 to 23.

I- 1211

OPINION OF MR JACOBS — CASE C-239/99

challenge it but had not done so within the either do so or forever hold its peace. 33 time-limit, pleading subsequently the illeg- Where it has no such right, or where it does ality of the decision before the national not obviously have that right, it must be courts in proceedings concerning the allowed to call the validity of that measure national measure recovering the aid. The into question before the national courts, Court held that, in such factual and legal which must seek a ruling from the Court of circumstances, the definitive nature of the Justice. 34 Commission's decision made it binding on the national court by virtue of the principle of legal certainty.

60. Again, however, that is not quite the end of the matter. The present case may differ from TWD inasmuch as there is clear evidence that the contested regulation was unlawful in its entirety yet it none the less continued to produce effects each time goods of the type concerned were imported. 58. Thus, according to that case-law, wher- ever a party has a clear right to seek the annulment of a measure in a direct action 33 — Although it may also bring parallel proceedings calling the before the Community Courts, it must validity of the measure into question before the national courts: see Joined Cases 133/85, 134/85, 135/85, 136/85 Rau v BALM [1987] ECR 2289, commented on in TWD, cited in note 30, at paragraph 20 of the judgment, and Wiljo, cited in note 31, at paragraph 22. 32 — Case C-241/95 The Queen v intervention Board for Agricultural Produce, ex parte Accrington Beef and Others 34 — As, for example, in Case 216/82 Universität Hamburg v [1996] ECR 1-6699, at paragraphs 14 to 16 of the Hauptzollamt Hamburg-Kehrwieder [1983] ECR 2771, judgment; see also the Opinion of Advocate General Léger, also referred to in TWD and Wiljo. paragraphs 23 to 26, especially paragraph 25. 35 — At paragraphs 26 to 34.

I - 1212

NACHI EUROPE

However, I shall demonstrate below 36 that raised in national proceedings. However, application of the rule in TWD does not the general principle which it embodies is mean that those factors could not have of equal application in the context of been taken into account in any way. First, Article 234. though, I must turn to a specific objection raised by Nachi.

36 — At paragraphs 80 to 84. 37 — Cited innote 34, at paragraphs 10 and 12 of the judgment.

I -1213

OPINION OF MR JACOBS — CASE C-239/99

65. The two-month limit laid down in Court confirmed that Article 241 EC 'gives Article 230 EC will therefore not apply in expression to a general principle conferring relation to the indirect challenge to the upon any party to proceedings the right to basic, general measure. A Community challenge, for the purpose of obtaining the implementing measure must of course still annulment of a decision of direct and be challenged within the two-month per- individual concern to that party, the valid- iod, but Article 241 EC allows the party ity of previous acts of the institutions which concerned to plead the invalidity of the form the legal basis of the decision which is basic measure regardless of the time which being attacked, if that party was not has elapsed since its adoption. Where the entitled under [Article 230 EC] to bring a implementing measure is a national one, direct action challenging those acts by any time-limits imposed on the challenge to which it was thus affected without having the implementing measure will be those been in a position to ask that they be laid down by national law. declared void.'

I - 1214 ÑACHI EUROPE

Commission v Belgium, 41 where the Court Regulation No 3651/88 had been adopted, stressed that Article 241 'can in no case be were inapplicable to it. invoked by a Member State to whom an [earlier] individual decision has been addressed'.

71. What is not contemplated is a situation in which the regulation imposing the duty, which is of direct and individual concern to 69. Since the principle which applies in an the applicant, may be challenged by indir- indirect challenge to the validity of a ect means outside the time-limit — in Community measure in the national courts, other words, there is simply no scope for involving a reference to this Court, is the applying the principle to a case such as the same as that embodied in Article 241, the present, where only the individual and not same limitations must apply also in that the basic measure is being challenged. context. If that were not so, the time-limit in Article 230 EC would become for prac- tical purposes a dead letter as regards measures of direct and individual concern to natural or legal persons.

I - 1215

OPINION OF MR JACOBS — CASE C-239/99

being purely automatic and resulting from — TWD and the problem of locus standi Community rules without the application of any other intermediate rules. 45 Indeed, in Nachi Fujikosbi v Council, 46 the Court dismissed an objection of inadmissibility to the effect that only the national implement- ing measures could be challenged by impor- ters before the national courts, pointing out that 'such implementation is purely auto- 75. Although the issue does not arise matic and, moreover, in pursuance not of directly here, brief mention may be made intermediate national rules but of Commu- of the concern expressed by a number of nity rules alone'. commentators over the TWD judgment, to the effect that application of the principle expressed there is dependent on establish- ing a clear right of action under Article 230 EC and that it is often difficult to establish such a clear right.

I - 1216

NACHI EUROPE

there is no doubt that the applicant could Nachi Europe is now barred from doing so have brought a direct challenge but failed indirectly, may be sufficient to deal with the to do so — and in many areas, including matter in issue here. anti-dumping, the criteria are much clearer than they are often said to be — national courts should decline to seek a preliminary ruling on validity because the result can be determined in advance. Where, however, a national court feels itself unable to make the necessary determination, it should seek guidance from this Court. For that reason, I would disagree with the Council's conten- 79. Those conclusions deal with different tion that the national court's question in hypotheses but as regards the main pro- this case should be held inadmissible on the ceedings the result is the same in both cases: basis of the TWD judgment, even though the national court is bound by the contested the factual and legal circumstances leave no regulation in so far as it imposed an anti- doubt as to Nachi Europe's right to bring a dumping duty on Nachi Fujikoshi's ball direct challenge. bearings.

80. That is not to say that no course of action at all would have been open to a party in Nachi's position.

Conclusions to be drawn in the present case

81. Unlike a decision imposing a fine or ordering the recovery of State aid — both of which require the payment of a single 78. The conclusions which I have reached sum — an anti-dumping regulation repeat- so far, namely that the judgment of the edly produces new effects every time goods Court of First Instance annulling the con- in respect of which it remains valid are tested regulation in so far as it affected the imported. There is a certain paradox in the products of NTN and Koyo Seiko could idea that the contested regulation could have no repercussions on the duty levied on continue, from a position of absolute those of Nachi Fujikoshi and that, having impregnability, to produce such effects failed to challenge the regulation directly, despite the finding by the Court of First

Instance that its adoption had been tainted 83. In fact, it is interesting to note that in by illegality. the present case such a review was initi- ated — in 1994, prior to the judgment of the Court of First Instance in NTN and Koyo Seiko — at the initiative not of any of the exporters or importers concerned but of the Federation of European Bearing Manufacturers' Associations. That review, in which Nachi Fujikoshi cooperated, cul- minated in 1997 with the repeal 50 of the contested regulation some five months before it was due to expire. Although no mention is made in the repealing regulation of the judgment of the Court of First Instance, it is noteworthy that, at point 31 of the preamble, it is stated that 'care was taken to ensure that any impact on the Community industry caused by other fac- 82. The basic anti-dumping regulation 48 tors was not attributed to the imports provides for an interim review of the need concerned'. for the continued imposition of anti-dump- ing measures to be carried out at the request of, inter alia, any exporter or importer producing sufficient evidence sub- stantiating the need for review. Depending on the outcome of the review, measures in force may be repealed, maintained or amended. 49 Although the existence of an annulling judgment may not have been uppermost in the legislator's mind as a factor entailing the need for a review, I think the Commission would be bound — 84. Finally, although no specific provision as a matter of good administration, rather is made in the basic regulation for retro- than of compliance with its obligations active repeal as a result of an interim under Article 233 EC, which was the issue review, it may be noted that in a recent in AssiDomän — to take such a judgment judgment 51 the Court of First Instance into account and in particular to consider found, in specific factual circumstances, the grounds on which the regulation was that an amendment arising out of a review found invalid. must be given retroactive effect where the consequences flowing from the review findings so require. 48 — At the time when the Court of First Instance gave its annulling judgment in NTN and Koyo Seiko, this was no longer Regulation No 2423/88 but Council Regulation (EC) No 3283/94 of 22 December 1994 on protection 50 — By Council Regulation (EC) No 802/97 of 29 April 1997 against dumped imports from countries not members of terminating the anti-dumping proceeding concerning the European Community, OJ 1994 L 349, p. 1 (since imports of Dall bearings with a greatest external diameter replaced by Council Regulation (EC) No 384/96 of exceeding 30 mm originating in Japan and repealing the 22 December 1995 on protection against dumped imports anti-dumping measures imposed on such products, from countries not members of the European Community, OJ 1997 L 115, p. 1. OJ 1996 L 56, p. 1; see in particular Article 11(3) of both the 1994 and 1996 regulations). 51 — Judgment of 29 June 2000 in Case T-7/99 Medici Grimm v Council; see in particular paragraphs 81 to 94 of the 49 — Article 11(6) of Regulations No 3283/94 or No 384/96. judgment.

I- 1219