C-76/01

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Legislative framework anti-dumping duty in cases where all requirements for the imposition have been fulfilled... [is] to be made by the authorities of the importing Member. It is desirable 3. Regulation No 384/96, the present basic that the imposition be permissive in the regulation governing the imposition of territory of all Members...' anti-dumping measures by the Community, was adopted partly to bring practice into line with new international obligations under the 1994 'Anti-dumping Code' estab- lished as part of the Uruguay round of multilateral trade negotiations. 4Both that 6. Under Article 12.2, public notice must code and the basic regulation contain be given of any preliminary or final deter- provisions cited by the appellants as rel- mination, whether affirmative or negative, evant to the protection of complainants' providing sufficient detail of the findings rights. and conclusions reached on all issues of fact and law considered material by the investigating authorities.

The Aitti-dumping Code 7. Article 13 concerns judicial review. It requires WTO Members to maintain judi- cial or equivalent procedures for the pur- pose inter alia of the prompt review of 4. Article 6.9 of the Anti-dumping Code 'administrative actions to final deter- requires the authorities, before a final minations'. determination is made and in sufficient time for parties to defend their interests, to 'inform all interested parties of the essential facts under consideration which form the basis for the decision whether to apply definitive measures'.

11. Article 9 is entitled 'Termination with- out measures; imposition of definitive duties'. Under Article 9(2), where protec- tive measures are unnecessary the proceed- ing is to be terminated. Article 9(4), on the other hand, states: 'Where the facts as finally established show that there is dump- ing and injury caused thereby, and the 14. The 15-month period allowed under Community interest calls for intervention Article 6(9) of the basic regulation ended in accordance with Article 21, a definitive anti-dumping duty shall be imposed by the Council, acting by simple majority on a 5 — OJ 1996 C 50, p. 3. 6 — Regulation (EC) No 2208/96 imposing a provisional anti- proposal submitted by the Commission dumping duty on imports of unbleached (grey) cotton after consultation of the Advisory Com- fabrics originating in the People's Republic of China, Egypt, India, Indonesia, Pakistan and Turkey, OJ 1996 L 295, p. 3. mittee....' 7 — COM(97) 160 final.

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on 21 May 1997. On that date the Council — annul 'the Council's decision to reject stated in a press release: 8 the Commission's proposal' for a regu- lation imposing a definitive anti-dump- ing duty and

'Following the written procedure concern- — order the Council to make good the ing the introduction of definitive anti- damage caused to the applicants by dumping duties on cotton fabrics originat- that unlawful rejection. ing in certain third countries which had expired on 16 May, with a negative result, the French delegation once again insisted on the need for such measures to be taken.'

19. The Treaty does not require the Coun- measures adopted by the institutions, what- cil to adopt a Commission proposal, nor ever their nature or form, which are does the basic regulation give complainants intended to have legal effects - may be any right to such adoption. Article 1 of that the subject of an action for annulment. regulation states that a duty 'may' be applied, and Article 9(4) that a definitive duty is to be imposed by the Council 'acting by simple majority on a proposal submitted by the Commission' - necessarily implying that the proposal will not be adopted if 22. In the present case, no measure was only a minority of Member States consider adopted, and the mere statement that a the necessary conditions fulfilled. majority was not reached was not in itself a Article 6(9) lays down a maximum dur- reviewable act. ation for investigations but does not require the Council to accede to the Commission's proposal; its sole purpose is to prevent over-long procedures and thus allow inter- ested parties to know within a reasonable 23. Responding to the applicants' argu- time what action is to be taken. ment that they would have no legal pro- tection if their application for annulment were inadmissible, the Court observed that the review to which they are entitled must be appropriate to the nature of the powers reserved to the Community institutions. As regards consideration of a complaint and the action to be taken, the positions of the 20. Nor does the Anti-dumping Code Commission and the Council are not com- oblige the Council to adopt definitive parable. The Council must place any pro- duties. It merely fixes the conditions to be posal for a definitive anti-dumping regu- met before a contracting party may impose lation on its agenda, but is not obliged to duties and thus have an impact on exports adopt it. Even if the failure to adopt the from another contracting State, and proposal were for any reason unlawful, it Article 9.1 states that it is 'desirable that would still be possible to bring an action the imposition [of anti-dumping duties] be for damages - as the applicants did in this permissive'. case.

(ii) it infringed Article 19 of the Statute of the Court of Justice and Article 44 of 26. In paragraphs 86 to 92 of the judgment its own Rules of Procedure by finding under appeal, the Court of First Instance the argument concerning the expiry of again noted that the Council was under no the 15-month period to be a new plea obligation to adopt the proposal and the raised in the observations on the objec- applicants were entitled to no such adop- tion to admissibility; tion. The claims that the Council had disregarded the facts found by the Com- mission, infringed the applicants' legitimate expectations and procedural rights and failed to state adequate reasons, being based on the mistaken premiss that there (iii) it again infringed Article 230 EC by was such an entitlement, were dismissed. finding that the expiry of the 15-month period did not constitute a reviewable decision of the Council; and

27. In particular, the only legitimate expec- tation that could be entertained was that the Council should examine the case care- (iv) it infringed Articles 253 and 288 EC fully, and there was no indication that it and the general legal principle of had not done so; and only measures coherence by rejecting the argument actually adopted must state the reasons on that the contested measure was unlaw- which they are based - here, no act was ful and implying that the Council had adopted. complete freedom of action;

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and request the Court to annul the judg- First ground of appeal ment under appeal, find in their favour on the substance and refer the case back to the Court of First Instance only to determine the amount of compensation.

10 — They cite Case 210/81 Demo-Studio Schmidt [1983] ECR 3045; Case 191/82 FEDIOL [1983] ECR 2913, paragraphs 28 to 31 of the judgment; Case 298/83 CICCE [1985] ECR 1105; Joined Cases 142/84 and 156/84 BAT and Reynolds [1987] ECR 4487; Case T-24/90 Automec v Commission 31. In outline, the arguments presented are [1992] ECR II-2223, paragraphs 78 and 80; and Case T-120/96 Lilly Industries [1998] ECR II-2571, paragraph as follows. 53.

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with the definitive duty 11 or where the 35. Finally, the Court of First Instance was Council 12 1 or Commission 3has adopted a illogical in stating that the appellants were decision explicitly terminating proceedings. not without legal protection since they There must also be a reviewable act where could bring an action for damages — if the Council does not adopt a Commission the Council had no obligation to act there proposal to repeal or reduce duties follow­ could be no entitlement to damages and if ing a review, since otherwise there would there was no act there could be no obli­ be a failure to safeguard the rights of gation to state reasons. The Court's reason­ exporters guaranteed by the Anti-dumping ing was thus self-destructive or circular, Code. 14 Equivalent protection must be infringing Article 230 EC and the general available to complainants. legal principle of coherence.

36. The Council denies that there is any general principle of Community law that the conclusion of an administrative pro­ cedure necessarily involves a challengeable act.

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closure of the file without action is an act need to reach the required majority on a subject to review, and there was in fact no Commission proposal, means that there act in the present case. can be no reviewable legal act in cases such as the present.

39. With regard to the arguments based on 42. Nor do Articles 12.2 and 13 support the Anti-dumping Code, first, the appel- the appellants' argument; Article 12.2 con- lants may not rely directly on that instru- cerns the duty to give public notice in the ment. 15 event of a final determination, whether affirmative or negative, and Article 13 requires judicial review of 'administrative actions to final determinations', but neither requires a final determination to be made in every conceivable case. 40. Second, the code is designed to define the limits within which WTO members are entitled to impose anti-dumping duties by prescribing constraints in the interests of producers and exporters whose goods may be affected; the Community industry may 43. The Council denies that there is any not rely on those constraints to its benefit. self-destructive or circular reasoning in the judgment under appeal with regard to the availability of a remedy in damages despite the absence of a reviewable act. The Court of First Instance correctly held that there could be no duty to state reasons where no act was adopted by the Council, but that 41. Third, the Court of First Instance was does not preclude the existence of other right to conclude from the words 'it is reviewable procedural errors, such as a desirable that the imposition be permissive' violation of the right to a fair hearing, that no obligation is imposed on WTO which might form the basis of an action for members either as to the choice of the damages. competent authority or as to the nature or structure of the decision to impose or not to impose a duty. Article 9.1 does not pre- clude a shared administrative/legislative competence between the Commission and the Council. In the Community system, the legislative nature of the decision-making process in the Council, in particular the Other grounds of appeal

45. The Council denies that the Court of 47. Before examining the substance of First Instance was wrong to dismiss that those arguments, it is necessary to consider argument as inadmissible. Before their their admissibility, which has been chal- observations on the objection to admissi- lenged in part by the Council. bility at first instance, the applicants had claimed that the act challenged was the outcome of the written procedure of 16 May 1997 — a different situation and a different point in time from the expiry of the 15-month period. The object of their 48. The Council submits, essentially, that challenge was not redefined by the fact that they also referred to it in general terms as the Council's decision to reject the Com- mission's proposal, and it was in no way clear that they were challenging the decision however manifested. Thus the — the first ground of appeal is imprecise subsequent argument based on the expiry and repeats arguments raised at first of the 15-month period was a new plea, instance - contrary to Article 112(1)(c) raised out of time. of the Court's Rules of Procedure and to consistent case-law; 16

— in the same ground of appeal, the argument based on the Anti-dumping 46. In their third ground of appeal, the Code is new and was not submitted at appellants point out that, once the first instance — contrary in particular 15-month period was over, it was clear that the file was definitively closed and thus there must have been a reviewable decision; 16 — For example, Case C-352/98 P Bergaderm and Goupil [2000] ECR I-5291, paragraphs 34 and 35 of the judg- the case-law and arguments presented in ment.

52. Those arguments do not seem to me to 50. As regards the first argument, it is quite be a mere reproduction of the (related) true that 'it follows from [Article 225 EC], arguments advanced in the reply at first the first paragraph of Article 51 of the EC instance. In any event the ban on such Statute of the Court of Justice and reproduction is intended to ensure that an Article 112(1)(c) of the Rules of Procedure appeal does not serve merely as a second of the Court of Justice that an appeal must examination of arguments raised in par- indicate precisely the contested elements of ticular in the application at first instance, the judgment which the appellant seeks to but not to prevent an appellant from have set aside, and also the legal arguments claiming that arguments presented in specifically advanced in support of the response to those of the opposing party appeal... That requirement is not satisfied were wrongly disregarded by the Court of by an appeal which, without even including First Instance. an argument specifically identifying the error of law allegedly vitiating the con- tested judgment, confines itself to repro- ducing the pleas in law and arguments previously submitted to the Court of First Instance. Such an appeal amounts in reality to no more than a request for re-examin- 53. Nor do I agree with the Council's ation of the application submitted to the objection that certain of the appellants' Court of First Instance, which the Court of arguments are vague because based on

18 — Bergaderm, cited above in note 16, paragraphs 34 and 35 17 — For example, Case C-51/92 P Hercules Chemicals [19991 of the judgment, and most recently the judgment of ECR I-4235, paragraphs 57 and 58 of the judgment and 19 September 2002 in Case C-104/00 P DKV v OHIM the case-law cited there. ECR I-7561, at paragraph 44.

58. In its last argument on admissibility the Council submits that it is immaterial whether the Court of First Instance was 56. However, it seems to me from their wrong to reject as out of time the claim that appeal 21 that they are now adducing the the expiry of the 15-month time-limit amounted to a negative decision: if the first ground of appeal is accepted, there is no 19 — Paragraphs 37 to 39 of the application. need to examine the third; if it is dismissed, 20 — See paragraphs 4 to 15 of the reply. then the third, which relies on the same 21 — Paragraphs 28 to 38. arguments, must also be dismissed.

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59. However, I do not see any scope for a the Anti-dumping Code as such, it is none challenge to admissibility there. If the the less frequently appropriate - and indeed ground of appeal is immaterial to the necessary - to interpret the basic regulation outcome, it need indeed not be examined in their light. 22 and no decision on its admissibility is required; if on the other hand it is material, the alleged basis for the challenge dis- appears.

62. On the second point, however, I agree with the Council. The purpose of the guarantees and constraints in the Anti- dumping Code is to protect the interests of those — exporters, exporting countries Substance of the appeal and importers — whose products are liable to be affected by anti-dumping duties. The rights of domestic-industry complainants are a matter for domestic law.

The extent to which the Anti-dumping Code may be invoked

anti-dumping duties in world trade — such The admissibility of the argument concern- as Article VI of GATT 1994 and the ing the 15-month time-limit Anti-dumping Code implementing it — is to ensure that such duties are not imposed unless they are justified, not that they are imposed whenever they may be justified. 23 There is thus, contrary to the thrust of the appellants' argument, an inherent imbal- ance, as regards the protection afforded by those instruments, between the positions of those who claim to be injured by dumping and those who are alleged to be practising 66. Since it has been argued that a review- the dumping. The fact that the basic able act might have been constituted by the regulation must be interpreted so as to closure of the written procedure on 16 May afford the latter every guarantee enshrined 1997, by the expiry of the 15-month period in the Anti-dumping Code is consequently on 21 May or by the two in combination, a of no avails to the appellants, whose second preliminary point to be considered position is different. is whether the Court of First Instance was wrong to reject the argument based on the expiry of the 15 months as inadmissible, as the appellants allege in their second ground of appeal.

68. The disputed submission appears how- original challenge covered either a negative ever in paragraphs 7 to 9 of the applicants' decision taken on 16 May or an implied observations on admissibility, in response rejection of the proposal on 21 May, as to the Council's objection that the outcome appropriate. of the written procedure which ended on 16 May 1997 did not constitute a definitive rejection of the Commission's proposal, since the Council could (at least in theory) have adopted it at any time up to 21 May. The applicants argued that, in that case (which they strongly denied), their legal position 'was undoubtedly affected by the 71. However, paragraph 9 of the observa- expiry of the 15-month time-limit without tions on admissibility may easily be seen as the adoption of the measures proposed by asserting simply that the decision not to the Commission' and that 'the fact that the adopt the proposal, although not definitive Council allowed the time-limit to expire on 16 May, became so through subsequent without adopting the proposal amounted inaction and the expiry of the time-limit; to a negative act confirming its rejection of the applicants were still seeking the annul- the Commission's proposal'. ment of that decision but pointing out that it was, contrary to the Council's position, definitive when they lodged their appli- cation. That was, indeed, the point made by counsel for the appellants at the hearing and I find it persuasive.

The validity of the finding that there was 76. It may moreover be noted that, in a no act to be reviewed new proceeding instigated by Eurocoton immediately after the failure of the one in issue in the present case, which gave rise to essentially the same result at each step, 26 the Council's press release 27 concerning its equivalent meeting stated: 'Confirming the The existence of a decision absence of a simple majority in favour of the Commission's proposal, the Council rejected the proposed Regulation...' Such a statement seems to indicate no doubt in the Council's mind that, in almost exactly equivalent circumstances some 18 months later, it reached a decision. 74. First of all, it seems clear that a decision was taken in the present case - at least in the generally accepted sense of the word. If at the close of the written procedure no majority was found in favour of the proposal, then a vote must have been taken and no more than seven of the 15 Member The relevance of the expiry of the States can have voted in favour. Article 8 of 15-month time-limit the Council's Rules of Procedure,24 gov- erning the written procedure, requires a 'written vote'.

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Council has not since significantly devel- any step taken by an institution which oped its original contention. At the hearing, amounts to closing the file without action is in response to a question from the Court, an act subject to review pursuant to its representative expressed the view that Article 230 EC. the effect of the expiry of the time-limit was simply that any subsequent adoption of the proposal would be unlawful under the basic regulation, but that the proposal in theory remained (and even now remains) before the Council so that no decision can be said to have been taken. 80. The Council objects that its activity as a legislative authority cannot be compared for purposes of judicial review with the Commission's activity as an administrative authority, so that no general principle can be inferred from the case-law cited by the appellants, which concerns principally the Commission's activity in the field of com- 78. In that regard, I agree essentially with petition. the appellants. Since the 15-month time- limit had not yet expired on 16 May 1997, the negative decision taken was perhaps not definitive on that date but it must have become so on 21 May. Whilst the expiry of the time-limit may not itself have consti- tuted or given rise to a decision, it necess- 81. In my view, a decision such as that arily meant that the decision already taken taken in the present case must in principle could no longer be changed. be open to review.

82. Under Article 230 EC, the Court of Justice may review the legality of acts of the The reviewability of the decision institutions other than recommendations and opinions, a category held by the Court to include all acts, whatever their nature or form, which have binding force or produce legal effects. In the ERTA case, 28 it held Council proceedings laying down a par- ticular negotiating procedure to constitute

86. Consequently, the statement at para- graph 59 of the judgment under appeal that 84. Even if it were to be considered that a 'the position in which the Commission is failure by a legislature to agree on the placed, particularly as regards consider- adoption of a purely legislative act should ation of the complaint and the action to be not be open to review, it is commonly taken on it, is not comparable to that of the accepted that anti-dumping measures are of Council' does not in my view follow from a hybrid nature, in that the procedures the valid premiss in the same paragraph possess many features of an administrative that 'the review by the Court to which the procedure and the measures themselves applicants are entitled must be appropriate moreover normally affect individual named to the nature of the powers reserved to the parties who are often (as here) involved in Community institutions as regards anti- the procedure. 30 dumping measures'.

29 — Case C-514/99 [2000] ECR I-4705, ac paragraph 45 of the order. 31 — Case C-19/93 P Rendo and Others v Commission [1995] ECR I-3319, at paragraph 28 of the judgment, Case 30 — See, for example, Case C-75/92 Gao Yao v Council [1994] C-39/93 P SEEI and Others v Commission [1994] ECR ECR I-3141, paragraph 26 of the judgment. I-2681, paragraph 27, and the case-law cited.

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87. In so far as that statement implied that Commission, (ii) denial of their procedural the non-adoption of the Commission's rights and legitimate expectations and (iii) proposal could not be reviewed, I therefore failure to state adequate reasons. The first consider that the Court of First Instance and second of those arguments were dis- erred in law. I do not however disagree - missed again on the ground that the nor indeed do the appellants - with the Council was under no obligation to adopt final sentence in the paragraph, to the effect the proposal and, as regards the second, that the Council was under no obligation to that there was no evidence that any pro- adopt the proposal. cedural rights or legitimate expectations had been denied. Again, those aspects are not challenged on appeal.

96. The Council rejoined that the decision Admissibility of the action at first instance to be taken in any subsequent procedure, based necessarily on a different reference period and thus on a different factual situation, could not be constrained by the Court's judgment in the present case.

Interest in bringing an action for annul- ment 97. In my view, the Council's objection should not be upheld.

94. The Council's second objection to admissibility at first instance was that the interest pursued by the applicants was the imposition of definitive anti-dumping duties on the imports in question; however, 98. It is true that, following the expiry of since annulment of the decision not to the 15-month limit, the Council cannot adopt the Commission's proposal could not lawfully take any further action on the lead to such imposition — the 15-month proposal in issue in the present case, nor time-limit had expired and the proposal could it have done so at the time when the could no longer validly be adopted — they application was lodged. Furthermore, as had no legal interest in seeking that annul- the Council correctly states, any subsequent ment. decision can only be taken in a different context.

95. The appellants countered that if the 99. However, I do not consider that the decision not to adopt the proposal were applicants had no interest in seeking annul- annulled the Council would be required ment of the decision not to adopt the under Article 176 of the EC Treaty (now proposal.

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'AKZO's interest in contesting the decision in question cannot be denied on the ground that in this case the decision had already been implemented at the time when the 104. Here, it need merely be pointed out action was brought. The annulment of such that, regardless of the standing of the other applicants to bring annulment proceedings, that of Eurocoton is not challenged. Con- 32 — See, for a recent example in the field of anti-dumping, Case sequently, its action cannot be dismissed in C-458/98 P Industries des Poudres Sphériques v Council [2000] ECR I-8147, at paragraph 81 of the judgment. whole or in part on that ground, since no 33 — Case 53/85 [1986] ECR 1965. separation can be made between the sub-

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missions of the different applicants. Fur- 107. Lack of competence, for example, thermore, as regards the claim for damages, could be alleged only if the Council were the standing of the individual applicants is required to adopt the proposal, since only not determined by the criteria of direct and then would it be incompetent not to do so. individual concern laid down in Article 230 Since proposals must always be adopted by EC. It is therefore unnecessary to examine at least a majority, it seems difficult to this objection any further. conceive of a situation in which the Council might lack competence not to adopt; it is inherent in the nature and operation of that institution that no Member State can be constrained to vote in a particular manner.

Substance of the action at first instance

108. It would also seem difficult for the non-adoption of a proposal itself to con- stitute a breach of the Treaty or of a rule of The action for annulment law relating to its application unless the relevant rule required the Council to adopt the proposal.

111. If, for example, in a situation com- 114. When the Council adopts a positive parable to that in the present case, repre- measure on a proposal from the Commis- sentations supporting the proposal had not sion, reasons must be stated and a state- been circulated, or a step required by the ment of reasons (which may none the less Council's Rules of Procedure had not been be amended) is put forward in the proposal. followed, that might well provide grounds There is on the other hand, as the Council for annulment. Other such breaches might pointed out at first instance, no proposal include violation of procedural rights, for a statement of reasons for not adopting denial of a fair hearing, or failure to state the proposal - and thus no need to reach adequate reasons. agreement on those reasons.

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116. The type of reasoning which may be 119. When the Council decided not to required of a decision such as that in issue adopt the Commission's proposal in the would appear to be limited, bearing in present case, the factors taken into account mind not only the essential aims of inform- may have included considerations of inter- ing interested parties and enabling the national policy towards the non-member Court to exercise review but also the countries concerned or of general policy in context in which the decision is taken. matters of world trade; a belief that com- petition from lower-priced imports was likely to stimulate the Community industry to achieve greater efficiency; or a concern that other Community industries using unbleached cotton fabric as a raw material, and Community consumers of their prod- ucts, should not be deprived of the benefit of the more competitive prices. It may also 117. It must be borne in mind that the have been felt that the Commission's Community institutions enjoy a margin of analysis did not clearly demonstrate a need discretion as regards the means of achieving to protect the Community industry con- the common commercial policy, and that cerned. judicial review is limited in such matters which involve an appraisal of complex economic situations. 37

122. Taken together with the broad dis- cretion enjoyed by the Council, that factor leads me to the view that, even though a 124. I thus take the view that the statement detailed statement of the reasons promp- of reasons provided — that the simple ting the Council not to adopt a proposal for majority necessary for the adoption of the an anti-dumping regulation, if given, could regulation was not attained — was appro- be subject to review by the Court, the fact priate to the nature of the decision and that it was not given in the present case adequate in the circumstances. does not affect the validity of the decision. Such a statement would serve no purpose relevant to judicial review unless it were a coherent statement of a single position, and there can be no requirement that it should be so.

125. It may be noted that a similar approach was taken by the Court of First Instance in Bic and Others. 39

Costs 127. The Court of First Instance considered at paragraph 29 of its judgment that the statement quoted above 'clearly indicates the reason — namely, the failure to achieve a majority in the Council — for which the Commission's proposals for maintaining 130. Both at first instance and on appeal, the anti-dumping duties introduced by the Eurocoton requested that costs be awarded original regulation were not followed by against the Council. At the hearing on the Council'. appeal, counsel for the appellants requested that, even if the appeal were unsuccessful, the Court should make use of Article 69(3) of the Rules of Procedure and order the parties to bear their own costs, on the ground that the question to be resolved was 128. In view of all the above consider- an important one and that the appeal was ations, I am of the opinion that the action justified in order for it to be settled. for annulment should be dismissed as unfounded.

131. In fact, I take the view that the appeal should be allowed because the Court of First Instance did indeed err in law on an The action for damages important point, but that the action should be dismissed.

129. Since the only remaining allegation of illegality in the context of the action for damages is that the statement of reasons was inadequate, that claim cannot be upheld either. In any event, lack of reason- 132. In those circumstances, I consider that the applicants should bear the costs in Case T-213/97 and that the Council should bear 41 — Recital 85 of Regulation No 174/2000. the costs of the appeal.

(3) order the applicants in case T-213/97 to bear the costs in that case; and

(4) order the Council to bear the costs of the appeal.

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