61999CC0239_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
1. This reference for a preliminary ruling 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 Instance on general grounds, but only in so far as they imposed a duty on the products of the two manufacturers who had brought proceedings in good time under what was then Article 173 of the EEC Treaty (now, after amendment, Article 230 EC). To what extent may a Community importer of ball bearings manufactured by its Japanese parent company, to whose products the duty also applies but which was not involved or referred to in the annulment proceedings, rely on that annulment before its national courts in order to seek remission or repayment of the anti-dumping duty levied? That is, in essence, the question raised by the Finanzgericht (Finance Court), Düsseldorf, in the present case.
The anti-dumping procedure
2. A definitive anti-dumping duty on imports of ball bearings with a greatest external diameter of more than 30 mm (hereinafter simply ball bearings) originating in Japan was first imposed by Council Regulation No 1739/85. It applied to all such ball bearings, with the exception of those manufactured by four named companies. Individual rates of duty were set for the products of 10 other named manufacturers, of whom only four need be mentioned here. A duty of 3.2% was imposed on ball bearings manufactured by NTN Toyo Bearing Co Ltd (NTN), of 5.5% on those manufactured by Koyo Seiko Co Ltd (Koyo Seiko), of 16.7% on those manufactured by Nippon Seiko KK (NSK) and of 13.9% on those manufactured by Nachi Fujikoshi Corporation (Nachi Fujikoshi).
3. In May 1989, the Commission announced a review of those anti-dumping measures which, in accordance with Article 15(1) of Council Regulation No 2423/88 (the basic regulation), were due to expire in 1990. They were, however, maintained in force in accordance with Article 15(4) of that regulation, pending the outcome of the review.
4. The review came to an end on 28 September 1992 with Council Regulation No 2849/92 (the contested regulation), some three and a half years after its initiation and over two years after Regulation No 1739/85 had been due to expire. In its reasoning, the Council found dumping 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 of the Community clearly lay in maintaining 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 duties in existence. The basic level of duty was set at 13.7%, with lower levels for ball bearings manufactured by four named producers (Article 1(2) of the operative provisions) and exemption for a further seven named producers (Article 1(3)).
5. As a result, the rates of duty were now 11.6% for NTN (up from 3.2%), 13.7% for Koyo Seiko (up from 5.5%), 6.5% for NSK (down from 16.7%) and 7.7% for Nachi Fujikoshi (down from 13.9%) (Article 1(2)).
The judicial review
At first instance
6. Regulation No 2849/92 was challenged before the Court of Justice by NTN and Koyo Seiko (the two Japanese manufacturers most adversely affected by the changed rates of duty) by applications within the two-month time-limit laid down in what was then the third paragraph of Article 173 of the EEC Treaty. Those actions against the Council were subsequently transferred to the Court of First Instance as Cases T-163/94 and T-165/94. In those proceedings, the Council was supported by the Commission and by the Federation of European Ball Bearing Manufacturers' Associations, but none of the other Japanese manufacturers or European importers concerned sought to intervene in support of NTN or Koyo Seiko. NTN asked the Court to annul Article 1 of Regulation No 2849/92 in so far as it imposes an anti-dumping duty on the applicant and Koyo Seiko asked it to declare Regulation No 2849/92 void in so far as it affects the applicant.
7. In its judgment of 2 May 1995, the Court of First Instance found it necessary to examine only two of the applicants' pleas, both of which it held to be well founded.
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 regulation, under which, essentially, a determination of injury may be made only where the injury or threatened injury to a Community 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 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 on the existence of a recession, which could not be taken into account for the purpose of determining injury. It concluded that it was possible that in the absence of such errors of fact and law the Council would not have found that there was a threat of injury.
9. In the second plea examined, the applicants argued that Article 7(9)(a) of the basic regulation, under which an investigation should normally be concluded within one year of its initiation, had been infringed because there was no adequate statement of reasons to explain why that period had not been observed. The Court of First Instance held that an investigation must not be extended beyond a reasonable period and that the Council had not provided adequate reasons to explain the length of time taken in this case (paragraphs 119 to 124 of the judgment).
10. On both those grounds, the Court of First Instance annulled Article 1 of the contested regulation in so far as it imposes an anti-dumping duty on the applicants.
On appeal
11. On 12 July 1995, the Commission 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 law, first, in its interpretation of the definition of injury under the basic regulation and, second, in its interpretation and application of Article 7(9)(a) of that regulation, in so far as it considered that the excessive duration of the investigation necessarily entailed the annulment of the contested regulation.
12. In the appeal proceedings, NSK and eight of its European subsidiaries applied for and were granted leave to intervene in support of NTN and Koyo Seiko.
13. In its judgment of 10 February 1998, the Court of Justice rejected the Commission's contention that the criteria for establishing the existence of injury set out in Article 4 of the basic regulation did not apply in the context of a review of existing anti-dumping measures but only where measures were being imposed for the first time, and therefore dismissed its first plea. Since the Court of First Instance had found that the Council had failed to establish any injury or threat of injury within the meaning of that article, and since that finding was sufficient to warrant the annulment of Article 1 of the contested regulation, this Court did not examine the Commission's second plea.
14. In their statement in intervention in the appeal, NSK and its subsidiaries had asked the Court not only to grant the forms of order sought by NTN and Koyo Seiko but also to confirm that the annulment of Article 1 of the contested regulation applied equally to NSK. At paragraph 24 of its judgment, the Court of Justice held that the latter claim was inadmissible under 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.
15. On 3 June 1998 the Commission published a Notice concerning anti-dumping measures on imports of ball bearings with a greatest external diameter exceeding 30 mm originating in Japan, in which it stated that, following the annulment of Article 1 of the contested regulation as far as NTN and Koyo Seiko were concerned and the dismissal of the appeal against that annulment, as to definitive duties collected after the entry into force of the regulation in question, importers may request their refund from national customs authorities with regard to products manufactured by NTN and Koyo Seiko.
The proceedings in the present case
16. Nachi Europe GmbH is a European subsidiary of Nachi Fujikoshi. In November and December 1995, it imported ball bearings of Japanese origin, paying a total of DEM 58 891.51 in anti-dumping duty, imposed by tax notices of 17 November 1995 and 29 December 1995.
17. In a letter received by the Hauptzollamt (Principal Customs Office) Krefeld on 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.
18. The Hauptzollamt refused the request for repayment by a ruling of 11 January 1999. Nachi Europe applied for reconsideration of that refusal, but the Hauptzollamt declined on the ground that it was not in a position to determine whether the contested regulation was unlawful.
19. Nachi Europe then brought proceedings before the Finanzgericht Düsseldorf, which considered that the claim for repayment would be bound to succeed if Article 1(2) of the contested regulation could be established to be invalid. The Finanzgericht 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 Court had reached its decision were of general application and that the judgment of the Court of Justice on appeal was based on equally general considerations.
20. The Finanzgericht therefore stayed the proceedings before it and sought a preliminary ruling on the following questions:
1. Is Article 1(2) of Regulation (EEC) No 2849/92 invalid?
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?
21. Written observations have been submitted by Nachi Europe, by the Council and by the Commission, all of whom also presented oral argument at the hearing.
Analysis
22. The national court asks whether Article 1(2) of the contested regulation is invalid and, if so, from what point in time it is to be regarded as invalid vis-à-vis Nachi Europe.
23. The form of the second question and the whole tenor of the order for reference indicate that the question as to validity is not posed in general terms but should rather be read as asking whether the annulment in favour of NTN and Koyo Seiko had any effect on the validity of the regulation as regards 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 direct challenge within the time-limit prescribed for that purpose, is now barred from pleading the invalidity of the regulation before a national court.
25. Before broaching either question, however, 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 contested regulation could be brought before the Court of First Instance.
Rights of action against the contested regulation
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 measures without being required to establish a specific interest. The fourth paragraph of that article, however (previously the third paragraph of Article 173 of the EEC Treaty), allows natural or legal persons to challenge decisions addressed to them or other measures which are of direct and individual concern to them. All such actions must be brought within two months of publication, notification or cognisance of the measure, as the case may be.
27. Regulations, being measures of general application, are in principle not susceptible to challenge by individuals under those provisions. Some regulations, however, 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 Article 230 EC.
28. Anti-dumping regulations are frequently (and accurately) described as being 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 least exporters specified by name and importers linked to such exporters by a relationship of exclusivity.
29. In the present case, it is indisputable that Nachi Fujikoshi itself could have brought an action directly before the Court of First Instance to seek the annulment of the regulation in so far as its products were concerned, in the same way that NTN and Koyo Seiko, who were in an exactly comparable position, actually did. Manufacturers or exporters of products on which an anti-dumping duty is imposed are always capable of being regarded as directly and individually concerned, at least in so far as they are identified in the regulation or concerned by the preliminary investigations.
30. However, the national proceedings here are brought not by the parent company Nachi Fujikoshi, on whose products the duty was imposed, but by its subsidiary Nachi Europe, which imports those products and pays the duty. The situation as regards importers may vary, although the rules are well established.
31. Applications for annulment brought by importers are admissible where, as provided for in Article 2(8)(b) of the basic regulation, there is an association between the importer and the exporter or manufacturer on whose products the duty has been imposed and the importer's resale prices have been used to establish the existence of the dumping or the anti-dumping duty itself. In addition, the Court has accepted applications where, as in Extramet, the importer can establish the existence of some other circumstances meeting the Plaumann test.
32. In the present case, it is stated in paragraph 6 of the preamble to the contested regulation that the Commission sought and verified all information it 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 were reconstructed on the basis of resale prices to the first independent buyer in the Community ...
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 in order to establish the dumping margins involved.
34. In those circumstances, there can be no doubt that Nachi Europe could have brought proceedings directly before the Court of First Instance to challenge the validity of the contested regulation. It may also be noted that there was no difficulty with regard to notification as the starting-point of the time-limit for bringing such an action, since the contested regulation was published in the Official Journal of the European Communities and must be presumed to have come to the notice of Nachi Europe. Moreover, that company can scarcely have been unaware of its rights in that regard since not only has its parent company on several occasions brought proceedings for the annulment of an anti-dumping regulation but in the first of those proceedings it acted jointly with two European subsidiaries, one of which was Nachi (Deutschland) GmbH, apparently a former designation of Nachi Europe.
35. Against that backdrop, I shall now consider the first of the two essential questions which arise in this case.
Effect of the annulment as regards imports of Nachi Fujikoshi ball bearings
36. In Case T-163/94 NTN sought annulment of Article 1 of the contested regulation in so far as it imposes an anti-dumping duty on the applicant and in Case T-165/94 Koyo Seiko asked for a declaration that the regulation was void in so far as it affects the applicant. The Court of First Instance annulled Article 1 in so far as it imposes an anti-dumping duty on the applicants.
37. But Article 1 begins by imposing a definitive anti-dumping duty in principle on all ball bearings of the specified type originating in Japan. It is contained in a regulation, which has general application. Moreover, the annulment was on grounds relating to the inadequacy and/or unreliability of the reasoning in general and not with specific regard to any particular manufacturer. Since a judgment annulling a Community measure is recognised as having authority erga omnes, it might be wondered whether the annulment here did not of necessity extend in general to the imposition of the anti-dumping duty. This, indeed, appears to be the approach advocated by Nachi Europe.
38. The Council and the Commission, however, point to the clearly circumscribed terms of the operative part of the annulling judgment and refer to the AssiDomän case, in which the Court considered that the annulment of a decision vis-à-vis certain addressees as a result of an action brought by them has no effect on its validity vis-à-vis other addressees who were not parties to the proceedings.
39. I agree essentially with that latter view, although there are differences between the situation in AssiDomän and the present.
40. The issue in AssiDomän was whether, following the annulment of a Commission decision in so far as it imposed fines on certain participants in an alleged price concertation, the Commission was obliged, in order to comply fully with the annulling judgment, to reconsider the fines imposed in the same decision on other addressees who had not sought its annulment. However, the raising of that issue and the conclusion finally reached by the Court that the Commission was under no duty of the kind alleged presuppose that the annulment could have had no effect as regards those other addressees.
41. A partial annulment of that kind operating in favour of only those addressees or directly and individually concerned parties who have challenged the measure is possible only as regards measures which are in reality decisions or bundles of decisions. Where a true regulation is challenged, any annulment, even partial, of its provisions will be effective erga omnes. As far as exporters and their associated importers are concerned, an anti-dumping regulation falls into the former category, so that a partial annulment may be limited in its effects to individual parties.
42. It is in my view clear that the judgment annulling the contested regulation here in so far as it affected NTN and Koyo Seiko did not have any effect on the duty imposed on any other ball bearings concerned.
43. In the first place, the operative part of the judgment was explicitly confined to the duty imposed on the applicants. It is true, as pointed out by the Court in AssiDomän, that the authority erga omnes of an annulling judgment attaches both to the operative part and to the ratio decidendi and the latter may cast light on the precise scope of the former. However, there can be no ground for extending the explicitly limited scope of the operative part on the basis that the reasoning in the judgment could equally well have justified a broader scope. Moreover, the authority of a ground of a judgment annulling a measure cannot apply to the situation of persons who were not parties to the proceedings and with regard to whom the judgment cannot therefore have decided anything whatever.
44. Not only was the operative part of the annulling judgment expressly circumscribed, but its scope could not have been made any broader. As the Court held in AssiDomän, citing its consistent case-law, since it would be ultra vires for the Community judicature to rule ultra petita ..., the scope of the annulment which it pronounces may not go further than that sought by the applicant. Since NTN and Koyo Seiko sought annulment only in so far as the regulation concerned them, the Court of First Instance had no jurisdiction to annul it in any other respect.
45. And not only did NTN and Koyo Seiko seek annulment only to that limited extent but they were precluded from seeking any more extensive annulment. In parallel anti-dumping proceedings concerning ball bearings with a greatest external diameter of not more than 30 mm, the Council adopted a regulation in 1984 imposing specified duties on such products manufactured by, inter alia, NTN, Koyo Seiko, NSK and Nachi Fujikoshi. All four of those companies brought direct actions against that regulation, each seeking a general declaration that the regulation was void. In each case, the Council contended that the application should be declared admissible only in so far as it related to the specific applicant's products and in each case the Court agreed, in effectively identical terms.
46. It held, for example, with regard to Nachi Fujikoshi:
it should be noted that the contested regulation does not lay down general rules which apply to a whole group of traders without distinguishing between them but imposes different anti-dumping duties on a series of manufacturers or exporters of small ball-bearings established in Japan and Singapore who are expressly named, and also on other undertakings which are not named but which pursue the same activities in those same countries. Under those circumstances it must be concluded that Nachi is individually concerned only by those provisions of the contested regulation which impose on it a specific anti-dumping duty and determine the amount thereof, and not by those provisions which impose anti-dumping duties on other undertakings.
It follows from the foregoing that the objection of inadmissibility raised by the Council must be upheld and the applicant's principal claim for a declaration that Regulation No 2089/84 is void in its entirety must be dismissed. It is, however, necessary to declare the application admissible and to examine its merits in so far as it seeks a declaration that those provisions of the contested regulation which are of concern exclusively to Nachi are void.
47. It is true that in the very first group of anti-dumping cases to come before the Court, the Court annulled the regulation in its entirety. There, however, the Court considered that all the manufacturers concerned by the regulation were parties to the proceedings. It does not seem that the Court has ever annulled such a regulation so as to affect the products of manufacturers or associated importers who were not parties to the proceedings.
48. I am therefore satisfied that the Court of First Instance did not annul, and could not have annulled, the regulation contested in this case other than in so far as it concerned NTN and Koyo Seiko.
49. I should perhaps mention, however, a circumstance that might seem to support the view that the effects of the annulment were broader than that, namely the approach taken by the Court of Justice in granting NSK and its European subsidiaries leave to intervene in the NTN and Koyo Seiko appeal.
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 that, since it had not brought an action for annulment, its intervention must be confined to supporting the forms of order sought by NTN and Koyo Seiko. The subsidiaries, the Court stated, imported ball bearings manufactured by NSK on which they paid a specific duty pursuant to the regulation. From this, it concluded that their interests would be affected by the outcome of the appeal and that they had established a direct and present interest in ensuring that the forms of order sought by NTN and Koyo Seiko were granted.
51. In those circumstances, however, I do not see what interest NSK or its subsidiaries had established in the result of the case at least in so far as they were supporting NTN and Koyo Seiko. The maintenance or annulment of the duty on NTN's and Koyo Seiko's products could have no direct effect on NSK's business. It could have had an indirect effect, since 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.
52. I confess that I consider the order granting leave to intervene to have been mistaken. It is conceivable that NSK could have established an interest in the result of the appeal for the purposes of for example a review by the Commission of the anti-dumping measures but there is no hint in the order that any such consideration was put forward by NSK or was present in the Court's mind. It appears rather that leave to intervene was sought and granted on the basis of a general interest, unrelated to the result of the particular case. However, the Court was quite clear in its refusal to entertain NSK's request for confirmation that the annulment applied equally to its own products.
53. I am thus unshaken in my view that neither the judgment annulling the contested regulation in so far as it concerned NTN and Koyo Seiko nor the judgment on appeal could have had any effect whatever on the validity of the imposition of an anti-dumping duty on ball bearings manufactured by Nachi Fujikoshi although this does not, as I shall make clear below, mean that Nachi Fujikoshi or Nachi Europe could have derived no comfort from it whatever.
54. I shall now turn to the second question which arises in this case and which, although it jostles for attention with the first, is in many respects an entirely separate matter.
Right of Nachi Europe to plead the illegality of the contested regulation before the national court
Application of the TWD principle
55. It is settled law that, for reasons of legal certainty, a decision which has not been challenged by the addressee before the Community Courts within the time-limit laid down by Article 230 EC becomes definitive as against him, and according to the judgment in TWD the same holds true for a person other than the addressee who is directly and individually concerned by the decision. Also according to TWD, the validity of such a decision cannot thereafter be challenged or called into question by him before the national courts either.
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 decision and of its undoubted right to challenge it but had not done so within the time-limit, pleading subsequently the illegality of the decision before the national courts in proceedings concerning the national measure recovering the aid. The Court held that, in such factual and legal circumstances, the definitive nature of the Commission's decision made it binding on the national court by virtue of the principle of legal certainty.
57. In Accrington Beef, the Court apparently accepted that the principle set out in TWD applied also where the measure in question was a regulation. In that case, it rejected an objection to the admissibility of a plea of illegality, raised before a national court and referred to the Court for a preliminary ruling, not on the ground simply that the contested measure was a regulation but on the ground that it was a regulation and that it was not obvious that an action by the applicants challenging that regulation under [Article 230 EC] would have been admissible.
58. Thus, according to that case-law, wherever a party has a clear right to seek the annulment of a measure in a direct action before the Community Courts, it must either do so or forever hold its peace. Where it has no such right, or where it does not obviously have that right, it must be allowed to call the validity of that measure into question before the national courts, which must seek a ruling from the Court of Justice.
59. I have made it clear above that Nachi Europe did have a right, unambiguously enshrined in the case-law, to challenge the contested regulation directly before the Court of First Instance. Consequently, having failed to bring such a challenge within the two-month time-limit, according to the principle expressed in TWD it may no longer seek to do so in the national courts.
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. However, I shall demonstrate below that application of the rule in TWD does not mean that those factors could not have been taken into account in any way. First, though, I must turn to a specific objection raised by Nachi.
The right to bring an indirect challenge without limitation in time
61. Nachi Europe argued at the hearing that the rule in TWD was incompatible with the right afforded by Article 241 EC to invoke before the Court of Justice the inapplicability of a regulation at issue in proceedings, notwithstanding the expiry of the time-limit for bringing a direct challenge under Article 230.
62. It is worth stressing that Article 241 EC does not itself apply directly in preliminary ruling procedures; it seems to be framed in terms relevant to direct actions only, and it is not required in the context of Article 234, which contains its own provision for questions to be referred on the validity of a Community measure when the issue is raised in national proceedings. However, the general principle which it embodies is of equal application in the context of Article 234.
63. In Universität Hamburg the Court held that according to a general principle of law which finds its expression in [Article 241 EC], in proceedings brought under national law against the rejection of his application the applicant must be able to plead the illegality of the Commission's decision on which the national decision adopted in his regard is based and that the question of the validity of the decision may therefore be referred to the Court in proceedings for a preliminary ruling.
64. As I see it, the principle in question is that a party adversely affected by a (national or Community) measure of direct and individual concern may not be denied the right to challenge that measure simply because the challenge could not succeed without calling into question a Community measure of general application which forms the basis for the individual measure and which can no longer be challenged directly following the expiry of the period prescribed for that purpose. In those circumstances, the general measure may still be impugned to the extent necessary in order to establish the unlawfulness of the individual measure.
65. The two-month limit laid down in Article 230 will therefore not apply in relation to the indirect challenge to the basic, general measure. A Community implementing measure must of course still be challenged within the two-month period, but Article 241 EC allows the party concerned to plead the invalidity of the basic measure regardless of the time which has elapsed since its adoption. Where the implementing measure is a national one, any time-limits imposed on the challenge to the implementing measure will be those laid down by national law.
66. Where the party concerned is a natural or legal person and not a privileged applicant such as a Member State, enjoying an automatic right to challenge even measures of general application before the Court the failure to challenge the basic measure within the time-limit will almost certainly have been due not to a delay in bringing proceedings but to the fact that the party lacked standing to bring a direct challenge at all.
67. This was taken into account in the judgment in Simmenthal, in which the Court confirmed that Article 241 EC gives expression to a general principle conferring upon any party to proceedings the right to challenge, 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 institutions which form the legal basis of the decision which is being attacked, 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.
68. The right of indirect challenge applies to general measures only and does not extend to measures of direct and individual concern. That follows from the reference in Article 241 to a regulation (although it would also apply to a directive used as the legal basis for a later measure) and has been confirmed by the Court in Salerno, where it was stated that such a plea may only be raised indirectly in proceedings against an implementing measure, the validity of the regulation being challenged in so far as it constitutes the legal basis of that measure, and, in relation to a Member State, in Commission v Belgium, where the Court stressed that Article 241 can in no case be invoked by a Member State to whom an [earlier] individual decision has been addressed.
69. Since the principle which applies in an indirect challenge to the validity of a Community measure in the national courts, involving a reference to this Court, is the same as that embodied in Article 241, the same limitations must apply also in that context. If that were not so, the time-limit in Article 230 would become for practical purposes a dead letter as regards measures of direct and individual concern to natural or legal persons.
70. In the specific context of anti-dumping legislation, the type of situation in which the principle comes into operation is exemplified in Nakajima. In that case the applicant, a Japanese manufacturer on whose products a definitive anti-dumping duty had been imposed by Regulation No 3651/88, brought an action before the Court of Justice seeking, directly, a declaration that that regulation was void in so far as it concerned Nakajima and, pursuant to what is now Article 241 EC, a declaration that certain provisions of the basic regulation, on the basis of which Regulation No 3651/88 had been adopted, were inapplicable to it.
71. What is not contemplated is a situation in which the regulation imposing the duty, which is of direct and individual concern to the applicant, may be challenged by indirect means outside the time-limit in other words, there is simply no scope for applying the principle to a case such as the present, where only the individual and not the basic measure is being challenged.
72. It is true that in Universität Hamburg the applicant was able to call the validity of a Commission decision into question when challenging, before a national court, a refusal by the national authorities, pursuant to that decision, to exempt a certain importation from duty. However, as the Court pointed out in TWD, that was a case in which the applicant in the national proceedings had never been in a position to challenge the Community measure directly.
73. Nachi Europe cannot argue that it was not able to challenge the contested regulation but only the national decision to collect the duty. The contested regulation left the national authorities no discretion in its implementation, such implementation being purely automatic and resulting from Community rules without the application of any other intermediate rules. Indeed, in Nachi Fujikoshi v Council, the Court dismissed an objection of inadmissibility to the effect that only the national implementing measures could be challenged by importers before the national courts, pointing out that such implementation is purely automatic and, moreover, in pursuance not of intermediate national rules but of Community rules alone.
74. In so far as the underlying general principle applies also to such national measures, its operation may properly be circumscribed in cases including many in the fields of competition, State aid and anti-dumping where the person affected had a clear right to challenge the Community measure directly. The rationale of the principle is to prevent a denial of justice, and there is no such denial if a person in that position did have the right of challenge and is precluded merely from awaiting an enforcing measure and then belatedly invoking the illegality of the parent measure. In those circumstances, I do not see any incompatibility between the application of the ruling in TWD to the present case, and the principle enshrined in Article 241 EC.
TWD and the problem of locus standi
75. Although the issue does not arise directly here, brief mention may be made of the concern expressed by a number of commentators over the TWD judgment, to the effect that application of the principle expressed there is dependent on establishing a clear right of action under Article 230 EC and that it is often difficult to establish such a clear right.
76. I considered in my Opinion in that case that it is only where locus standi is clear beyond doubt that the availability of a direct action should preclude the party concerned from bringing an indirect challenge before a national court. The Court took a similar line by emphasising that its decision was based on the factual and legal circumstances of the case, in particular the fact that TWD was aware of its undoubted right of challenge.
77. Those, I think, must remain the conditions for application of the rule. Wherever there is no doubt that the applicant could have brought a direct challenge but failed to do so and in many areas, including 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 contention that the national court's question in this case should be held inadmissible on the basis of the TWD judgment, even though the factual and legal circumstances leave no doubt as to Nachi Europe's right to bring a direct challenge.
Conclusions to be drawn in the present case
78. The conclusions which I have reached so far, namely that the judgment of the Court of First Instance annulling the contested regulation in so far as it affected the products of NTN and Koyo Seiko could have no repercussions on the duty levied on those of Nachi Fujikoshi and that, having failed to challenge the regulation directly, Nachi Europe is now barred from doing so indirectly, may be sufficient to deal with the matter in issue here.
79. Those conclusions deal with different hypotheses but as regards the main proceedings the result is the same in both cases: the national court is bound by the contested regulation in so far as it imposed an anti-dumping duty on Nachi Fujikoshi's ball 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.
81. Unlike a decision imposing a fine or ordering the recovery of State aid both of which require the payment of a single sum an anti-dumping regulation repeatedly produces new effects every time goods in respect of which it remains valid are imported. There is a certain paradox in the idea that the contested regulation could continue, from a position of absolute impregnability, to produce such effects despite the finding by the Court of First Instance that its adoption had been tainted by illegality.
82. The basic anti-dumping regulation provides for an interim review of the need for the continued imposition of anti-dumping measures to be carried out at the request of, inter alia, any exporter or importer producing sufficient evidence substantiating the need for review. Depending on the outcome of the review, measures in force may be repealed, maintained or amended. 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 as a matter of good administration, rather than of compliance with its obligations under Article 233 EC, which was the issue in AssiDomän to take such a judgment into account and in particular to consider the grounds on which the regulation was found invalid.
83. In fact, it is interesting to note that in the present case such a review was initiated 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, culminated in 1997 with the repeal 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 factors was not attributed to the imports concerned.
84. Finally, although no specific provision is made in the basic regulation for retroactive repeal as a result of an interim review, it may be noted that in a recent judgment the Court of First Instance found, in specific factual circumstances, that an amendment arising out of a review must be given retroactive effect where the consequences flowing from the review findings so require.
Conclusion
85. I am of the opinion that the Court should reply to the Finanzgericht Düsseldorf to the following effect:
Neither the judgment of the Court of First Instance in Joined Cases T-163/94 and T-165/94 NTN Corporation and Koyo Seiko v Council nor that of the Court of Justice in Case C-245/95 P Commission v NTN Corporation and Koyo Seiko had any effect on the validity of the anti-dumping duty imposed by Council Regulation (EEC) No 2849/92 on ball bearings manufactured by Nachi Fujikoshi Corporation.
An importer of those products, such as Nachi (Europe) GmbH, which had a clear right to challenge the validity of the imposition of that duty directly before the Court of First Instance but failed to do so within the period allowed for that purpose, may not subsequently call its validity into question indirectly in national proceedings even where it is able to invoke the grounds on which the same regulation was found in those judgments to be invalid in respect of the imposition of other duties.