Opinion of the Advocate General — ECLI:EU:C:2000:639
Date: 2000-11-16
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Dumping;External relations;Commercial policy
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary of the Judgment 
1. Actions for annulment of measures — judgment annulling a measure — Scope — 
Annulment of an anti-dumping regulation in so far as it imposes an anti-dumping duty 
on the products of certain companies — Effect of the annulment on the validity of an 
anti-dumping duty applicable to the products of another company — No effect 
(Art. 230 EC; Council Regulation No 2849/92, Art. 1) 
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SUMMARY — CASE C-239/99 
2. Plea of illegality — Incidental nature — Challenge before a national court as to the 
legality of an anti-dumping regulation brought by a trader who was entitled to bring an 
action to have the regulation annulled but did not exercise his right to do so — Not 
possible to plead invalidity of the anti-dumping regulation as an incidental issue 
(Arts 230 EC and 241 EC) 
1. The annulment of Article 1 of Regula­
tion No 2849/92 modifying the defini­
tive anti-dumping duty on imports of 
ball bearings with a greatest external 
diameter exceeding 30 mm originating 
in Japan imposed by Regulation 
No 1739/85 by the Court of First 
Instance in its judgment in Joined Cases 
T-163/94 and T-165/94 NTN Corpora­
tion and Koyo Seiko v Council, upheld 
by the Court of Justice in its judgment 
in Case C-245/95 P Commission v 
NTN and Koyo Seiko, in so far as that 
article imposed anti-dumping duties on 
the companies NTN and Koyo Seiko, 
did not affect the validity of the other 
aspects of that regulation, in particular 
the anti-dumping duty applicable to 
ball bearings manufactured by Nachi 
Fujikoshi Corporation, as those aspects 
did not form part of the subject of the 
dispute on which the Community judi­
cature was called to rule. 
Neither the judgment of the Court of 
First Instance nor that of the Court of 
Justice therefore affected the validity of 
Article 1(2) of Regulation No 2849/92 
in so far as it fixes an anti-dumping 
duty applicable to ball bearings manu­
factured by Nachi Fujikoshi Corpora­
tion. 
(see para. 27 and operative part) 
2. Article 241 EC expresses a general 
principle of law under which an appli­
cant must, in proceedings brought 
under national law against the rejec­
tion of his application, be able to plead 
the illegality of a Community measure 
on which the national decision adopted 
in his regard is based, and the question 
of the validity of that Community 
measure may thus be referred to the 
Court in proceedings for a preliminary 
ruling. 
This general principle confers on any 
party to proceedings the right to chal­
lenge, for the purpose of obtaining the 
annulment of a decision of direct and 
individual concern to that party, the 
validity of previous acts of the institu­
tions which form the legal basis of the 
decision under challenge, if that party 
was not entitled under Article 230 EC 
to bring a direct action challenging 
those acts by which it was thus affected 
without having been in a position to 
ask that they be declared void. 
However, this general principle, which 
has the effect of ensuring that every 
person has or will have had the oppor­
tunity to challenge a Community mea-
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NACHI EUROPE 
sure which forms the basis of a decision 
adversely affecting him, does not in any 
way preclude a regulation from becom­
ing definitive as against an individual 
in regard to whom it must be consid­
ered to be an individual decision and 
who could undoubtedly have sought its 
annulment under Article 230 EC, a 
fact which prevents that individual 
from pleading the illegality of that 
regulation before the national court. 
Such a conclusion applies to regula­
tions imposing anti-dumping duties by 
virtue of their dual nature as acts of a 
legislative nature and acts liable to be 
of direct and individual concern to 
certain traders. 
An importer of a product subject to an 
anti-dumping duty who undoubtedly 
had a right of action before the Court 
of First Instance to seek the annulment 
of that anti-dumping duty but who did 
not exercise that right cannot subse­
quently plead the invalidity of that 
anti-dumping duty before a national 
court. In such a case, the national court 
is bound by the definitive nature of the 
anti-dumping duty. 
(see paras 35 to 37, 39 
and operative part) 
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