Judgment — ECLI:EU:T:2002:174
Date: 2002-07-04
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Dumping;External relations;Commercial policy
Concepts: Anti-dumping and anti-subsidy measures;Principle of proportionality
Procedure: Action for annulment - unfounded;Action for damages - unfounded
Origin: Norway;Provisional data

summary table produced by the Council in reply to the Court's questions concerning the total salmon purchased by the applicant from all its suppliers in 1998, according to which the applicant purchased from Ex-com at an average annual price which was 11.8% higher than the average annual purchase price from its other suppliers, sheds light on the possibilities which might be offered to parties participating in the opaque counterclaim settlements procedure in operation. As the Council observes in its pleadings, by using the triangular trading arrangement at issue it was possible, first, for the applicant to obtain its profit margin, which was paid to it directly by Tomex; second, for Tomex to purchase, through the counterclaim settlements procedure, salmon from its subsidiary Ex-com without paying the anti-dumping duties which it would have had to pay if it had purchased directly from Ex-com, and thus to perform the transactions at the market price in Norway, which was lower than the price charged by the applicant to Ex-com; and, third, for Ex-com to sell its salmon at the Norwegian market price without incurring a loss. 66. In any event, as has been pointed out in paragraphs 60 to 62 above, the practice in question offered no guarantee whatsoever to the Commission that the applicant's undertaking regarding the minimum export price was actually observed. 67. Contrary to the applicant's claims during the administrative procedure and in the application, the 11.8% price difference referred to in paragraph 65 above is not explained by seasonal variations which caused the applicant to obtain supplies during the summer months from Ex-com, a company established in the south of Norway. As the Council correctly submits in its defence and as is clear from the table annexed to the final disclosure to the applicant on 28 July 1999, the analysis of the accounting data obtained during the on-site visit to the applicant on 27 January 1999 showed that the applicant's purchases of salmon from Ex-com during the period from January to November 1998 were at their height not during the summer but during winter and early spring 1998. 68. It follows from the foregoing that the triangular trading arrangement implemented by the applicant and its trading partners, Tomex and Ex-com, in no way ensured an effective control by the applicant of the actual price of its exports and, therefore, effective compliance by it with the undertaking not to export below the minimum price which it had agreed to observe. 69. Consequently, the Commission rightly withdrew its acceptance of the applicant's undertaking and proposed the imposition of definitive anti-dumping and countervailing duties and the Council rightly imposed those duties on the applicant in the contested regulation. 70. The various arguments submitted by the applicant in order to challenge that assessment cannot be upheld. 71. First, the assertion that the counterclaim settlements procedure is a standard business practice in Norway which aims, according to the applicant, to reduce the need for liquidity and to reduce transaction costs is not supported by any evidence. Moreover, the applicant has not explained why the standard practice in question was confined exclusively to its business relationship with Ex-com and Tomex and did not apply to its transactions with other salmon suppliers. Furthermore, the claim that this practice is standard, at least in the salmon marketing sector, is disproved by the fact, pointed out by the Council and not disputed by the applicant, that the Commission, after carrying out on-site visits at 38 different Norwegian exporters and importers, found no evidence to support it. According to points 17 to 30 of Regulation No 1826/1999, the business practice in question was observed only on the part of the applicant and one other company (Brødrene Eilertsen A/S), whose undertaking was also terminated. 72. In any event, even if, as the applicant asserts, the practice in question is a standard business practice in Norway, that cannot relieve the applicant of its obligation to ensure actual compliance with the minimum export price and to avoid any circumvention of the undertaking given to that effect. 73. Second, it is also necessary to reject the argument that the first invoice, dated 30 April 1997, sent by Ex-com to the applicant shows that the business practice at issue began in reality before the entry into force of the Salmon Agreement and that this practice was therefore not implemented in order to circumvent the applicant's undertaking. 74. First of all, that assertion is invalidated by the applicant's own statement in the application that this business practice was maintained for a limited period from 1 July 1997, the date of the entry into force of the Salmon Agreement, until the end of November 1998. Next, nothing in the invoice of 30 April 1997 indicates that the counterclaim settlements procedure was already being applied at that date. Finally, even if that were the case, that cannot affect the conclusion that the arrangements for implementing that practice with effect from 1 July 1997 were intended to invalidate the applicant's undertaking to observe the minimum price for sales to its first unrelated customers in the Community which it invoiced after that date. 75. Third, it is necessary to reject as unfounded the argument that the Commission wrongly found in points 19 and 25 of Regulation No 1826/1999 that the applicant issued export invoices to Tomex without ever receiving payment for them. The letter of 30 July 1999 from the Norwegian audit company, Noraudit, on which the applicant relies in order to dispute that finding, in no way demonstrates that Tomex actually paid to the applicant the total amount shown on the export invoices in question. That letter summarises the result of an examination of the applicant's accounts with Tomex and Ex-com over the period 1 January 1998 to 30 April 1999 and states as follows: ... Based on our examinations of the said accounts we hereby confirm that you have received full settlement of all your sales invoices to Tomex. The amount of NOK 85 115 586.86 has been settled by the purchase value of fresh salmon purchased from [Ex-com] AS, and the rest has been settled by cash payments. In business this is not an unusual way of settling the trade accounts in cases where two companies belong to the same group of companies and one of them acts as a supplier and the other acts [as] customer of a third company outside the group. For the supplier company in the group, in this case [Ex-com] AS, this is a safer way of getting settlement for their deliveries of fresh salmon to Arne Mathisen AS, because the risk of losing settlement by the bankruptcy of Arne Mathisen AS is avoided. 76. It is apparent from that letter that the payments made by Tomex to the applicant were not in accordance with the export invoices and that the payments actually received and recorded by the applicant corresponded to the amounts on those invoices after deduction of the amounts due by Tomex to Ex-com. The latter amounts were covered by the counterclaim settlements procedure operating between Tomex and Ex-com, which were linked companies and not subject to monitoring by the Commission. 77. Consequently, that letter from Noraudit not only fails to invalidate the Commission's findings in points 19 and 25 of Regulation No 1826/1999 but in fact confirms them. 78. Fourth, the argument that the applicant ceased to obtain supplies of salmon from Ex-com once that type of supply was prohibited at the end of November 1998 by the amendment to Clause D.8, third indent, of the undertaking (see paragraphs 14 and 15 above) is irrelevant and must be rejected. As the Commission maintains in point 28 of Regulation No 1826/1999, at that time the applicant had already breached its undertaking for more than five consecutive reporting quarters. 79. Fifth, the applicant's claim that Ex-com is a secondary supplier to it and that the business practice in respect of which the Commission had expressed doubts related to a limited part of the applicant's total sales to Tomex is unfounded and must be rejected. 80. It is settled case-law that none of the provisions of the basic anti-dumping and anti-subsidy regulations contain a direct or indirect requirement that the information on which the Commission or the Council bases its assessment of whether an economic operator has committed a breach of his undertaking must relate to a minimum percentage of his sales. On the contrary, any breach of an undertaking suffices to allow the Commission to withdraw its acceptance of the undertaking and replace it with an anti-dumping duty (see Miwon v Council, paragraph 52). 81. In any event, that claim is factually incorrect. On the one hand, in the application the applicant accepts that [t]he share of supply from Ex-com to Arne Mathisen varied with market conditions between approximately 45% and 70% of the total export from Arne Mathisen to Tomex and that Arne Mathisen only bought part of its salmon from Ex-com, the proportion varying between 40% and 70% during the period July 1997 until November 1998. On the other hand, as may be seen from the table produced by the Council in reply to written questions from the Court and mentioned in paragraph 65 above, in 1998 out of a total of 30 suppliers Ex-com alone supplied to the applicant approximately 42% of the total quantity of salmon purchased by it for export. That finding, confirmed by point 22 of Regulation No 1826/1999, which states that [s]ales sourced in this way constituted a significant proportion of the total exports [of the applicant], means that Ex-com cannot be regarded as a secondary supplier of the applicant. 82. Nor, sixth, is there any foundation for the claim that Clause C.3 of the undertaking does not impose on the applicant any express or implied obligation to monitor its business partners or to verify whether its customer in the Community, Tomex, in fact paid to its subsidiary, Ex-com, the amount set out in the export invoices after deduction of the sum paid by Tomex to the applicant. 83. The key element of the breach of the undertaking by the applicant is the fact that it did not comply with the obligation to ensure that the minimum export price was in fact observed, having undertaken to do so. Moreover, even if the wording of the undertaking does not refer expressly to such an obligation of control, it is clear, when Clauses C.3 and D.8 of the undertaking are read together, that they impose on each exporter a positive obligation to monitor the real price of salmon exported to the Community. If that were not the case, the undertaking concerning the minimum export price would be meaningless. 84. Lastly, the applicant's argument that the resale prices of Tomex on the Community market are above the minimum export price and thus do not cause any injury must also be rejected as irrelevant. 85. As is pointed out in Clause F.14 of the undertaking, pursuant to Article 8(9) of the basic anti-dumping regulation and Article 13(9) of the basic anti-subsidy regulation, where the undertaking has been breached or circumvented, definitive duties may be imposed on the basis of the facts established within the context of the investigations which led to the undertaking, provided that the investigation was concluded with a final determination on dumping, subsidy and injury and the exporter concerned has been given an opportunity to comment. 86. It follows that the breach or circumvention of an undertaking suffices for the imposition of definitive duties and that it is not necessary to prove once more the dumping and injury already determined in the course of the investigation which culminated in the undertaking in accordance with the conditions laid down in the above provisions of the basic anti-dumping and anti-subsidy regulations. The applicant does not dispute that those conditions were fulfilled in the present case. Moreover, an exporter who has offered a price undertaking which has been accepted by the Commission can avoid the imposition of definitive duties by complying scrupulously with that undertaking and in refraining from any violation or circumvention of it, thus avoiding any breach in the relationship of trust established with the institutions and which is the basis for acceptance of the undertaking. 87. In those circumstances, as is stated in point 27 of Regulation No 1826/1999, the resale of salmon by Tomex on the Community market at a price equal to or above the minimum export price is ... a completely different issue to the one of whether Arne Mathisen AS had respected its undertaking or not. Furthermore, as is stated in point 28 of that regulation, to establish ... that these resale prices had no negative effects, it would also be necessary to extend the investigation to the related parties of that importer in Norway and the Community. Neither the basic anti-dumping regulation nor the basic anti-subsidy regulation require such a result, whether in order to establish a violation of an undertaking or to withdraw acceptance of it. 88. Finally, inasmuch as, because of its opaque nature, the triangular trading arrangement could allow Tomex to import onto the Community market the salmon exported by the applicant at a price below the minimum price, that arrangement could confer on Tomex a competitive advantage over its competitors when it resold that product in the Community at a price above the minimum export price. Tomex could obtain a bigger profit margin than that of its competitors on the Community market which obtained supplies of salmon at a real price at least equal to the minimum export price. 89. It follows that the second part of the first plea must be rejected. Third part: no failure by the applicant to cooperate in monitoring the undertaking - Arguments of the parties 90. The applicant claims that it always acted in good faith and at no stage intended to mislead the Commission. Moreover, it had no reason to believe that the Commission was misled by reports from Ex-com. The applicant therefore did not breach or circumvent the undertaking by wilfully misleading the Commission through the making of incorrect reports. 91. The Council contends that on several occasions the applicant made misleading statements in breach of Clause D.8, second indent, of the undertaking. - Findings of the Court 92. Pursuant to Article 8(7) of the basic anti-dumping regulation and Article 13(7) of the basic anti-subsidy regulation, the Commission is to require any exporter from whom an undertaking has been accepted to provide periodically information relevant to the fulfilment of such undertaking and to permit verification of pertinent data. Non-compliance with those requirements is to be construed as a violation of the undertaking. 93. According to the case-law, it follows from those provisions that the mere failure by a party from whom an undertaking has been accepted periodically to provide information permitting verification of pertinent data is to be regarded as a breach of the undertaking (Miwon v Council, paragraph 52). 94. In accordance with the abovementioned provisions of the basic anti-dumping and anti-subsidy regulations, Clauses D.8, second indent, E.10, E.11 and G.17 of the undertaking provide that each exporter is to undertake, first, not to circumvent the undertaking by misleading statements or reports regarding the nature, type or origin of products sold or the identity of the exporter, and, second, to cooperate with the Commission by supplying it with whatever information is considered necessary by the Commission for the purpose of ensuring compliance with the undertaking. 95. Furthermore, according to Clause F.14, first indent, of the undertaking failure to cooperate with the Commission in monitoring the undertaking is to be construed as a breach of it. 96. As regards the applicant's compliance with its obligation to cooperate with the Commission, it should first be noted that point 36 of Regulation No 929/1999 and points 20 and 25 of Regulation No 1826/1999 state that the applicant's reports of quarterly sales in the Community presented to the Commission were considered to be unreliable as they reflected only the amounts invoiced and not, as the undertaking requires, the real value of the financial transactions. 97. In reply to a written question from the Court, the Council produced a copy of the sales report drawn up by the applicant for the fourth quarter of 1998 and sent to the Commission. In its reply the Council also explained, without contradiction, that the applicant's sales reports covering the other periods are similar and may, if necessary, be placed at the disposal of the Court. It is apparent from the document in question that the sales reports sent by the applicant to the Commission reflect only the amounts on the export invoices issued by the applicant to Tomex. They do not show what are the underlying financial transactions, that is to say, the amounts actually paid by Tomex to the applicant in respect of any given invoice. On the contrary, those reports suggest that the export invoices issued in the name of Tomex (columns 5 and 6 of the report sent) were paid in full (columns 9, 101 and 102 of the same report) by it. Nowhere is it mentioned that the applicant received from Tomex only the amounts corresponding to the difference between the price on the invoices for the purchase of salmon and the price on the export invoices. 98. Furthermore, it was not made clear that the amount not paid by Tomex to the applicant was paid by means of a counterclaim settlement procedure between the applicant, Ex-com and Tomex, nor stated that on the occasion of that counterclaim, the real export price was at least equal to the minimum price. 99. Next, it must be observed that the applicant did not draw the Commission's attention to the real nature of the counterclaim settlement procedure or to the fact that it knew of the relationship between Tomex and Ex-com from the very outset, that is to say, from the time when the triangular trading arrangement at issue was implemented. 100. Lastly, the applicant has not explained or provided evidence in its reports as to why it obtained supplies from Ex-com at an average price that was 11.8% above that charged by all its other suppliers. 101. The applicant does not really contest the above matters but merely invokes its good faith and the fact that it had no reason to believe that the Commission would be deceived by the reports supplied. 102. On the basis of those considerations, it must be concluded that the applicant did not comply with its obligation to cooperate with the Commission in monitoring the undertaking pursuant to Clause D.8, second indent, E.10, and E.11 of the undertaking, since the quarterly reports of the applicant's sales in the Community and the information presented to the Commission over more than five consecutive quarters (see points 25 and 28 of Regulation No 1826/1999) was not reliable as regards, first, the nature and real price of those sales and, second, the true identity of the exporter and the applicant's real capacity to comply with the undertaking. As has already been stated, the failure to comply with that obligation suffices in itself to establish the breach of the applicant's undertaking. 103. It follows that the third part of the first plea must be rejected. 104. In the light of all the above considerations, the whole of the first plea must be rejected as unfounded. The second plea: breach of the principle of proportionality Arguments of the parties 105. The applicant claims, first of all, that in view of the objective pursued, which is apparently to protect the Community market in salmon, the contested regulation is manifestly inappropriate and in breach of the principle of proportionality, because the business practice in question was discontinued by the applicant as soon as the Commission had amended the undertaking. The contested regulation is therefore not necessary in order to ensure the administrative efficiency of the Commission's monitoring system in this case and has the effect of permanently excluding the applicant from an important part of its business activities, namely the export of salmon to the Community. Such exclusion, although not formal, is comparable to a sanction or penalty for the alleged breach of its undertaking, which conflicts with the principle of proportionality (see Case 122/78 Buitoni [1979] ECR 677, paragraph 20). 106. Moreover, the contested measure is a disproportionate sanction, as the Commission has not alleged that the applicant did not observe the minimum export price, its primary obligation in this case (Case 181/84 Man (Sugar) [1985] ECR 2889, paragraph 20). 107. The applicant does not deny that Community institutions have a broad discretion in the field of anti-dumping action (NMB France and Others v Commission, paragraphs 69 to 71). However, such discretion does not mean that anti-dumping measures fall outside the scope of the judicial review, albeit limited, exercised by the Community judicature and of compliance with the general principles of Community law, such as the principle of proportionality. That principle, contrary to what the Council appears to contend, does not apply merely to the question whether the amount of duties imposed is adequate in light of the injury suffered by the Community industry pursuant to Articles 7(2) and 9(4) of the basic anti-dumping regulation, but also to the question whether the Community institutions are entitled to impose anti-dumping measures at all. 108. In the present case, in the light of the principle of proportionality and the more limited discretion enjoyed by the Council, as opposed to the Commission, in this regard, the adoption of the contested regulation was not necessary in order to attain the objective pursued. The only sanction proportionate to the breach of the applicant's undertaking alleged by the Commission is its exclusion from the Community salmon market for the period of four months (from 4 May until 3 September 1999) during which time it was subject to provisional anti-dumping and countervailing duties. 109. The applicant submits, moreover, that the Council exceeded the limits of its discretion in the present case for the following reasons. First, the applicant's total volume of exports in 1997 and 1998 was less than 1% and 2.5%, respectively, of combined exports under the Salmon Agreement. Permanent exclusion of the applicant from the market cannot therefore be necessary in order to protect the Community salmon market. Second, the Council did not take into account the fact that the applicant bought only part of its salmon from Ex-com during the relevant period, the proportion varying between 40% and 70% of its exports, and that it had terminated the triangular trading practice following the amendment to the undertaking on 1 December 1998. In those circumstances, particularly in view of the negligible amounts of salmon involved, the Community salmon market did not suffer injury as a result of the applicant's business practices. Any other contention would amount to zero tolerance or, indeed, a no-mercy policy by the Community institutions towards the applicant. Lastly, the Council failed to take into account the ambiguity of the wording of the undertaking with regard to triangular trading arrangements; it was neither explicit nor clear and the Commission therefore amended it. It is unreasonable for a Community institution to require a private individual to carry the full risk of a legislative ambiguity. 110. The Council states, first, that under the legal system established by the basic anti-dumping regulation and the basic anti-subsidy regulation the decision to impose anti-dumping and countervailing duties is generally considered appropriate when certain conditions are fulfilled. Thus the imposition per se of definitive anti-dumping measures cannot be affected by the principle of proportionality. 111. Second, the Council contends that it did not exceed the limits of its discretion in this case. Findings of the Court 112. It must be borne in mind that by virtue of the principle of proportionality, as expressed in the third paragraph of Article 5 EC, the legality of Community rules is subject to the condition that the means employed must be appropriate to attainment of the legitimate objective pursued and must not go further than is necessary to attain it, and, where there is a choice of appropriate measures, it is necessary, in principle, to choose the least onerous (see, NMB France and Others v Commission, paragraph 69; Case T-87/98 International Potash Company v Council [2000] ECR II-3179, paragraph 39). 113. However, in an area such as the common commercial policy in which the Community legislature has a broad discretion which accords with the political responsibilities given to it by the Treaty, only if a measure is manifestly inappropriate having regard to the objective which the competent institution is required to pursue, can its lawfulness be affected (NMB France and Others v Commission, paragraphs 70 and 71). 114. The broad discretion enjoyed by the Community legislature in this area corresponds to the broad discretion which, according to settled case-law, the Community institutions have when adopting specific anti-dumping measures pursuant to the basic regulations (see, for example, Case 191/82 FEDIOL v Commission [1983] ECR 2913, paragraph 30; Joined Cases T-163/94 and T-165/94 NTN Corporation and Koyo Seiko v Council [1995] ECR II-1381, paragraphs 70 and 113; and NMB France and Others v Commission, paragraph 72). 115. It follows that review by the Community judicature must be limited, in the sphere of anti-dumping action, to determining whether the measures adopted by the Community legislature are manifestly inappropriate having regard to the objective pursued (NMB France and Others v Commission, paragraph 73). 116. In the present case, the applicant submits in essence that the imposition by the contested regulation of definitive anti-dumping and countervailing duties is in itself a manifestly inappropriate measure which infringes the principle of proportionality. Given the small volume of its exports in comparison with the total volume of exports made in the context of the Salmon Agreement during 1997 and 1998, and given that the business practice in question was abandoned after the undertaking was amended in November 1998, the only proportionate sanction in this case is, according to the applicant, the imposition on it of the provisional anti-dumping and countervailing duties in respect of the four-month period from 4 May 1999 (date of publication of Regulation No 929/1999) to 3 September 1999 (date of publication of the contested regulation). 117. That argument cannot be upheld. 118. First, according to Article 8(7) and (9) of the basic anti-dumping regulation and Article 13(7) and (9) of the basic anti-subsidy regulation, any breach of an undertaking or obligation to cooperate in the implementation and monitoring of that undertaking suffices to allow the Commission to withdraw its acceptance of the undertaking and to replace it by a definitive anti-dumping duty and countervailing duty on the basis of the facts established within the context of the investigation which led to the undertaking, provided that the investigation was concluded with a final determination as to dumping, subsidisation and injury and that the exporter concerned has been given an opportunity to comment. As has already been pointed out (paragraph 86 above), the applicant does not dispute that those conditions are fulfilled in this case. Consequently, the adoption of the contested regulation cannot be regarded as being in itself inadequate or manifestly inappropriate. 119. Second, under the system implemented by the basic anti-dumping and anti-subsidy regulations (see Article 10(2) of Regulation No 384/96 and Article 16(2) of Regulation No 2026/97), the definitive collection of provisional duties imposed by the Commission takes place pursuant to a decision adopted by the Council. 120. It is only in exceptional circumstances that the Council may decide not to collect definitive duties after breach of an undertaking, for example where it considers, in the exercise of its discretion, that the Community interest does not require such action by virtue of Articles 9(4) and 21 of Regulation No 384/96 and Articles 15(1) and 31 of Regulation No 2026/97. In the present case, the Council did not exceed the limits of its discretion by imposing definitive duties on the applicant where the conditions for doing so were fulfilled. 121. Third, whilst the principle of proportionality applies to the question whether the amount of anti-dumping and countervailing duties imposed is appropriate in the light of the injury suffered by the Community industry (Case C-136/91 Findling Wälzlager [1993] ECR I-1793, paragraph 13), it does not, however, apply to the question of the imposition per se of those duties. 122. It follows that the lawfulness of the imposition per se by the contested regulation of the definitive anti-dumping and countervailing duties on the applicant cannot be called in question by reference to the principle of proportionality. 123. That conclusion is not weakened by the claim that the applicant's exports during 1997 and 1998 were negligible in comparison with the total volume of exports of salmon to the Community in the context of the Salmon Agreement over the same period. According to the case-law, the existence of injury to the Community industry caused by dumped imports must be assessed as a whole and it is not necessary (or, indeed, possible) to define separately the share in such injury attributable to each of the companies responsible (Case 255/84 Nachi Fujikoshi v Council [1987] ECR 1861, paragraph 46, and Case T-171/97 Swedish Match Philippines v Council [1999] ECR II-3241, paragraphs 65 and 66). 124. Furthermore, contrary to the applicant's claims, the appropriateness and reasonableness of the contested regulation cannot be affected by the fact that the applicant ceased the business practice in question as soon as Clause D.8, third indent, of the undertaking was amended. By then the applicant had already been in breach of its undertaking for more than five consecutive quarters (see point 28 of Regulation No 1826/1999 and paragraph 102 above); moreover, the breach of undertaking by the applicant broke the relationship of trust on which the acceptance of undertakings by the Commission is based and justified the imposition of definitive duties. 125. In addition, the applicant's argument that the contested regulation in effect excluded a large part of its business activity and thus imposes on it a sanction that is disproportionate in the light of the judgment in Buitoni is irrelevant and must be rejected. As the Council has rightly stated, the basic anti-dumping regulation does not impose any obligation other than the avoidance of dumping or any sanction other than the imposition of anti-dumping duties. Consequently, unlike in Buitoni, there is no reason in the present case to carry out an assessment of other obligations and sanctions in the course of a review of observance of the principle of proportionality. 126. Lastly, the argument based on paragraph 20 of the judgment in Man (Sugar), namely that where Community legislation makes a distinction between a primary obligation ... and a secondary obligation ... it cannot, without breaching the principle of proportionality, penalise failure to comply with the secondary obligation as severely as failure to comply with the primary obligation, is also irrelevant. First, no such distinction follows from the terms of the applicant's undertaking. Second, even if that were the case, the applicant has not complied with the primary obligation to ensure that the real export price is not below the minimum price. Finally, as has already been stated, any breach of an undertaking by an economic operator, including breach of its obligation to cooperate with the Commission in the monitoring of the undertaking, suffices to allow the Commission to withdraw its acceptance and to impose an anti-dumping duty. 127. The second plea must therefore be rejected. 128. It follows from all the foregoing that the claim for annulment of the contested regulation is unfounded and must be dismissed. The claim for compensation Arguments of the parties 129. The applicant claims that it suffered damage as a result of the contested regulation and seeks compensation for it. The main damage to the applicant is the loss of business opportunities and the consequential damage suffered as a result of its exclusion from taking part, under the Salmon Agreement, in the salmon export trade with the Community. 130. It states that, in view of the nature of such loss, it is difficult to assess the extent of it, but an assessment could be based on actual experience in that business. It is prepared to propose a specific amount of damages and to substantiate it at a later stage if so requested by the defendant. The applicant is in any case prepared to negotiate with the defendant in order to establish the extent of the economic loss it has suffered, once the Court has given its ruling. 131. The applicant refers to its average net income per quarter (NOK 900 000) over the period from 1 July 1997 to 4 May 1999, when it was trading under the terms of the Salmon Agreement, and considers that the amount of damages to be paid to it should be increased by NOK 1 200 000. This corresponds to its income for the period from 4 May 1999 to 3 September 1999, during which it was subject to provisional anti-dumping measures. 132. The Council denies the admissibility of the claim for compensation on the ground that the application does not comply with Article 19 of the EC Statute of the Court of Justice and Article 44(1)(c) of the Rules of Procedure of the Court of First Instance. 133. In the alternative, the Council considers that the claim for compensation is unfounded. Findings of the Court 134. It is settled case-law that an application for compensation for damage must be dismissed where there is a close connection between it and an application for annulment which has itself been dismissed (Joined Cases T-185/96, T-189/96 and T-190/96 Riviera auto service and Others v Commission [1999] ECR II-93, paragraph 90, Joined Cases T-189/95, T-39/96 and T-123/96 SGA v Commission [1999] ECR II-3587, paragraph 72; and Joined Cases T-9/96 and T-211/96 Européenne automobile v Commission [1999] ECR II-3639, paragraph 61). 135. In the present case there is a close connection between the application for compensation and the application for annulment. Consequently, the claim for compensation must be rejected since the pleas in support of the application for annulment have not revealed any illegality committed by the Council and thus no fault of such a nature as to render it liable. 136. In those circumstances, the claim for compensation must be rejected and it is not necessary to consider whether the applicant's submissions on the nature and scope of the damage and the causal link between the Council's alleged conduct and that damage are sufficient for the purposes of Article 19 of the Statute of the Court of Justice and Article 44(1)(c) of the Rules of Procedure of the Court of First Instance (see, in particular, SGA v Commission, paragraph 73, and Européenne automobile v Commission, paragraph 62). Costs 137. Under Article 87(2) of the Rules of Procedure of the Court of First Instance, the unsuccessful party must be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the applicant has been unsuccessful and the Council has applied for costs, the applicant must be ordered to bear its own costs and to pay the costs of the Council. The Commission, as intervener, is to bear its own costs in accordance with the first subparagraph of Article 87(4) of the Rules of Procedure. On those grounds, THE COURT OF FIRST INSTANCE (Fourth Chamber, Extended Composition), hereby: 1. Dismisses the application; 2. Orders the applicant to bear its own costs and to pay the costs of the Council; 3. Orders the Commission to bear its own costs. Vilaras Tiili Pirrung Mengozzi Meij Delivered in open court in Luxembourg on 4 July 2002. H. Jung M. Vilaras Registrar President 1: Language of the case: English.