62002TO0155_EN
Parties
Grounds
Operative part
Parties
In Case T-155/02 R,
VVG International Handelsgesellschaft mbH, established in Salzburg (Austria),
VVG (International) Ltd, established in Europort Gibraltar (Gibraltar),
Metalsivas Metallwarenhandelsgesellschaft mbH, established in Vienna (Austria),
represented by W. Schuler, lawyer,
applicants,
v
Commission of the European Communities, represented by G. zur Hausen and B. Eggers, acting as Agents, with an address for service in Luxembourg,
defendant,
APPLICATION for suspension of the operation of Commission Regulation (EC) No 560/2002 of 27 March 2002 imposing provisional safeguard measures against imports of certain steel products (OJ 2002 L 85, p. 1) or for any other provisional measure likely to permit the applicants to import into the Community, in addition to the tariff quota and free of additional duties, 95 129 tonnes of alloy hot-rolled flat products covered by reference 4 of that regulation,
THE PRESIDENT OF THE COURT OF FIRST INSTANCE
OF THE EUROPEAN COMMUNITIES
makes the following
Order
Grounds
Legal context
1 On 27 March 2002 the Commission adopted Commission Regulation (EC) No 560/2002 of 27 March 2002 imposing provisional safeguard measures against imports of certain steel products (OJ 2002 L 85, p. 1, the contested regulation), which introduces tariff quotas lasting six months for fifteen groups of steel products, calculated on the basis of the annual average level of imports into the Community during 1999, 2000 and 2001, plus 10%. After those quotas have been exhausted, imported quantities are subject to the payment of additional duties fixed for each group of products. The contested regulation entered into force on 29 March 2002.
2 The contested regulation is based on Council Regulation (EC) No 3285/94 of 22 December 1994 on common rules for imports and repealing Regulation (EC) No 518/94 (OJ 1994 L 349, p. 53). Article 8 of Regulation No 3285/94 reads as follows:
1. The provisions of this Title [Community investigation procedure] shall not preclude the use, at any time, of surveillance measures in accordance with Articles 11 to 15 or provisional safeguard measures in accordance with Articles 16, 17 and 18.
Provisional safeguard measures shall be applied:
- in critical circumstances where delay would cause damage which it would be difficult to repair, making immediate action necessary, and
- where a preliminary determination provides clear evidence that increased imports have caused or are threatening to cause serious injury.
2. The duration of such measures shall not exceed 200 days.
...
4. The Commission shall immediately conduct whatever investigation measures are still necessary.
5. Should the provisional safeguard measures be repealed because no serious injury or threat of serious injury exists, the customs duties collected as a result of the provisional measures shall be automatically refunded as soon as possible. The procedure laid down in Article 235 et seq. of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code [OJ 1992 L 302, p. 1] shall apply.
3 Article 1 of the contested regulation provides as follows:
1. A tariff quota is hereby opened in relation to imports into the Community of each of the 15 products concerned specified in Annex 3 (defined by reference to the CN codes specified in relation to it) from the date on which this regulation enters into force until the day before the corresponding date of the sixth month following.
2. The conventional rate of duty provided for these products in Council Regulation (EC) No 2658/97, or any preferential rate of duty, shall continue to apply.
3. Imports of those products which are in excess of the volume of the relevant tariff quota specified in Annex 3, or without a request for benefit, shall be subject to an additional duty at the rate specified in Annex 3 for that product. That additional duty shall apply to the customs value of the product being imported.
...
4 The table in Annex 2 to the contested regulation shows the growth in imports of alloy hot-rolled flat products (reference 4) in 1999, 2000 and 2001. It indicates that in those three years the imports in question totalled 25 719 tonnes, 154 916 tonnes and 468 000 tonnes respectively.
5 Under reference 4 of Annex 3 to the contested regulation it is stated that the tariff quota for alloy hot-rolled flat products is 23 778 tonnes net and the rate of additional duty for those products is fixed at 26%.
6 According to Article 3 of the contested regulation:
The tariff quotas shall be managed by the Commission and the Member States in accordance with the management system for tariff quotas provided for in Articles 308a, 308b and 308c of Regulation (EEC) No 2454/93, as last amended by Regulation (EC) No 993/2001 ....
Facts and procedure
7 The applicants are companies whose business consists almost exclusively in importing into the Community steel products covered by the contested regulation, in particular alloy hot-rolled flat products, cut into sheets or coils under reference 4 of Annex 3 to the contested regulation. They purchase these products in large quantities from various steel producers in non-member countries and resell them to wholesalers, retailers, factories and storage facilities in the European Union.
8 By application lodged at the Court Registry on 14 May 2002, the applicants brought an action under the fourth paragraph of Article 230 EC for the annulment of the contested regulation.
9 By a separate application lodged at the Court Registry on 19 June 2002, they also sought suspension of the operation of the contested regulation or any other provisional measure likely to permit them to import into the Community, in addition to the tariff quota and free of additional duties, 95 129 tonnes of alloy hot-rolled flat products covered by reference 4 of the contested Regulation.
10 On 3 July 2002 the Commission submitted written observations on the present application for interim measures.
11 After the applicants were requested by the President of the Court of First Instance to respond to the Commission's observations, they lodged their observations at the Court Registry on 11 July 2002.
12 On 12 July 2002 the Commission raised an objection of inadmissibility in relation to the application for annulment in the main proceedings pursuant to Article 114 of the Rules of Procedure.
13 In view of the Commission's plea of an absolute bar to proceeding with the present case, the parties were requested to submit their observations on the judgment of 25 July 2002 of the Court of Justice in Case C-50/00 P Unión de Pequeños Agricultores v Council [2002] ECR I-6677 by 31 July 2002.
14 The applicants and the Commission replied on 30 and 31 July 2002 respectively.
15 In the light of the documents submitted, the President considers that he has sufficient information to be able to rule on the present application for interim measures and that it is not necessary to hear oral argument from the parties before doing so.
Law
16 Under Articles 242 EC and 243 EC and Article 4 of Council Decision 88/591/ECSC, EEC, Euratom of 24 October 1988 establishing a Court of First Instance of the European Communities (OJ 1988 L 319, p. 1), as amended by Council Decision 93/350/ECSC, EEC, Euratom of 8 June 1993 (OJ 1993 L 144, p. 21), the Court of First Instance may, if it considers that circumstances so require, order that application of the contested act be suspended or prescribe any other necessary interim measures.
17 The first subparagraph of Article 104(1) of the Rules of Procedure of the Court of First Instance states that an application to suspend the operation of any measure is to be admissible only if the applicant is challenging that measure in proceedings before the Court of First Instance. That rule is not a mere formality but is based on the premiss that the main action to which the application for interim measures relates can in fact be considered by the Court of First Instance.
18 It is settled case-law that in principle the issue of the admissibility of the main action should not be examined in relation to an application for interim measures so as not to prejudge the substance of the case. Nevertheless, where, as in this case, it is contended that the main action to which the application for interim measures relates is manifestly inadmissible, it may prove necessary to establish whether there are any grounds for concluding prima facie that the main action is admissible (see, in particular, the order of the President of the Court of Justice in Case C-300/00 P(R) Federación de Cofradías de Guipúzcoa and Others v Council [2000] ECR I-8797, paragraph 34; order of the President of the Court of First Instance in Case T-139/01 R Comafrica and Dole Fresh Fruit Europe v Commission [2001] ECR II-2415, paragraph 49).
19 In this case the President of the Court considers that it is necessary to ascertain whether the application for annulment is likewise manifestly inadmissible.
20 The fourth paragraph of Article 230 EC provides that any natural or legal person may ... institute proceedings against a decision addressed to that person or against a decision which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern to the former.
21 The applicants are seeking annulment of the contested regulation, which provides that a tariff quota is to be opened in relation to imports into the Community of each of the 15 categories of specified products and that imports of those products which are in excess of the volume of the relevant tariff quota, or without a request for benefit, are to be subject to an additional duty. The President observes that the provisions of the regulation are addressed in abstract terms to undefined classes of persons and apply to objectively determined situations (see, in particular, Case C-213/91 Abertal and Others v Commission [1993] ECR I-3177, paragraph 19).
22 Consequently, the provisions of the contested regulation are, by nature, of general application. Under Article 230 EC, a regulation, as a measure of general application, cannot be challenged by natural or legal persons other than the institutions, the European Central Bank and the Member States (Unión de Pequeños Agricultores, paragraph 35).
23 However, a measure of general application such as a regulation can, in certain circumstances, be of individual concern to certain natural or legal persons and is thus in the nature of a decision in their regard (Unión de Pequeños Agricultores, paragraph 36). That is so where the measure in question affects a specific natural or legal person by reason of certain attributes peculiar to him, or by reason of a factual situation which differentiates him from all other persons and distinguishes him individually in the same way as the addressee of that measure (Unión de Pequeños Agricultores, paragraph 36).
24 If that condition is not fulfilled, a natural or legal person does not, under any circumstances, have standing to bring an action for annulment of a regulation (Unión de Pequeños Agricultores, paragraph 37).
25 In the light of the foregoing, it is necessary to ascertain whether, in the present case, the contested regulation is of individual concern to the applicants by reason of certain attributes peculiar to them or whether a factual situation exists which, in relation to that regulation, differentiates them from all other persons.
26 To show that the contested regulation is of individual concern to them, the applicants put forward, in substance, seven grounds in their application for interim measures.
27 In their written observations of 11 July 2002, they dispute the Commission's argument regarding the admissibility of the main action and rely on the Opinion of Advocate General Jacobs in Unión de Pequeños Agricultores, and on the judgment in Case T-177/01 Jégo-Quéré v Commission [2002] ECR II-2365. The applicants observe that, even though the contested regulation applies to all Community importers, they are specifically affected by it. They are among the few totally independent traders in steel and they do not import several types of steel products but almost exclusively products covered by reference 4 of Annex 3 to the contested regulation, and have done so for several years.
28 In the observations which they lodged on 30 July 2002, the applicants contend that the facts in Unión de Pequeños Agricultores differ considerably from those of the present case. In particular, they consider that the contested regulation must be regarded as a bundle of individual decisions relating to each of the categories of products in question. The applicants add that where the validity of a regulation such as the contested regulation is limited in time, account must be taken of the fact that an action for annulment pursuant to Article 230 EC is the only legal remedy providing effective judicial protection. Therefore the applicants must be distinguished individually by reason, in particular, of the fact that they cannot obtain in time judicial protection by means of any other legal remedy.
29 In their first submission, repeated in the observations lodged on 11 and 30 July 2002, the applicants plead the effect of the contested regulation on their economic situation. As a consequence of the inclusion of the additional 26% duty in the selling price of the products in question, their customers will cancel the purchase and delivery contracts with the applicants. In practice, the regulation has the effect of prohibiting the importation of those products, thereby ruining the applicants. In past years they have imported into the Community up to 8 000 tonnes per month of the products in question, that is to say, a quarterly volume double that of the tariff quota laid down by the contested regulation (23 778 tonnes).
30 In this connection, the President considers that, even if the contested regulation is of a nature such as to affect the applicants' economic situation by reason of its consequences, that circumstance is not sufficient to differentiate them from all other persons. The contested regulation is of concern to them by reason only of their objective position as economic operators trading in steel between non-member countries and the European Community, in the same way as other traders in a similar position (Case C-451/98 Antillean Rice Mills v Council [2001] ECR I-8949, paragraph 51; order in Joined Cases T-14/97 and T-15/97 Sofivo and Others v Council [1998] ECR II-2601, paragraph 37). In that context, it must be observed that this is expressly confirmed by the applicants when they state in their application for interim measures that, apart from Community producers, the other operators in the market, including [themselves], are individually affected by the [contested] regulation. This conclusion remains the same if the effects of the contested regulation are considered separately for each of the product categories in question, which does not justify the conclusion that it is a bundle of individual decisions.
31 In addition, as regards the particularly serious economic impact of the contested regulation on the applicants' activities, it should be pointed out that the fact that a legislative measure may have differing specific effects on the different persons to whom it applies is not such as to distinguish them from all other traders concerned, since the measure is applied on the basis of an objectively determined situation (orders in Case C-409/96 P Sveriges Betodlares and Henrikson v Commission [1997] ECR I-7531, paragraph 37, Case C-96/01 P Galileo and Galileo International v Council [2002] ECR I-4025, paragraph 41, and Case T-39/98 Sadam Zuccherifici and Others v Council [1998] ECR II-4207, paragraph 22).
32 In their second submission, the applicants contend that the contested regulation gives rise to serious breaches of fundamental individual and Community rights (principle of equality, prohibition of discrimination, freedom of economic activity and trade, freedom of competition, etc.).
33 However, it must be observed that the applicants have not shown in what way the alleged breach of those rights is such as to distinguish them. As it stands, this submission is irrelevant.
34 Their fourth submission, namely that the introduction of the additional 26% duty without a sufficient transitional period did not enable the undertakings to adjust to the new quota situation, must be dismissed for the same reason. The applicants have not shown why the absence of a sufficient transitional period is likely to distinguish them.
35 In their third submission, the applicants claim that the contested regulation is a serious breach of the legal obligation to take account of their specific interests.
36 In this connection, the President observes that the Commission was under no obligation to take the applicants' specific situation into account at the time when the contested regulation was adopted. There was no rule of law of a higher order requiring the Commission to take their situation specifically into consideration as opposed to that of any other person concerned by that measure (Case 11/82 Piraiki-Patraiki and Others v Commission [1985] ECR 207, paragraphs 16 to 32; Case C-152/88 Sofrimport v Commission [1990] ECR I-2477, paragraphs 11 to 13; Joined Cases T-480/93 and T-483/93 Antillean Rice Mills and Others v Commission [1995] ECR II-2305, paragraphs 67 to 78; and Case T-135/96 UEAPME v Council [1998] ECR II-2335, paragraph 90). On this point, it must be observed that the applicants admit in their pleadings that there was no obligation to take specific account of their situation. Their application for interim measures (paragraph 3.6) claims that the contested regulation breaches the legal obligation to take account of the interests of all operators, in particular, the specific interests of the applicants, adding that the operators are not only the Community producers, but also the importers, stockholders, wholesalers, retailers, forwarding agents, transport undertakings and final consumers.
37 In addition, even assuming that, when the contested regulation was adopted, the Commission ought to have taken account, by virtue of a rule of law of a higher order, of the consequences of the proposed measure for the situation of certain individuals, including the applicants, such a constraint would certainly not have released the latter from the obligation to prove that they are affected by the contested regulation by reason of a factual situation which differentiates them from all other persons (see, to that effect, Antillean Rice Mills v Council, cited above, paragraphs 59 to 62, and the order in Case C-151/01 P La Conqueste v Commission [2002] ECR I-1179, paragraph 36).
38 According to the applicants' fifth submission, the protection of individual rights is in practice ruled out because the preliminary ruling procedure under Article 234 EC does not provide effective judicial protection, in particular because of the uncertainty as to a reference by the national court to the Court of Justice and the period required for the latter to rule on the validity of a regulation which was of limited duration, such as that in the present case.
39 The President observes that in Unión de Pequeños Agricultores the Court of Justice held that it is not acceptable to adopt an interpretation of the rules of admissibility in Article 230 EC to the effect that an action for annulment must be ruled admissible where it can be shown, following a specific examination of the national procedural rules by the Community Court, that those rules do not allow an individual to bring proceedings to contest the validity of the Community measure at issue. Such an interpretation would require the Community Court, in each individual case, to examine and interpret national procedural law. That would go beyond its jurisdiction when reviewing the legality of Community measures (paragraph 43). That applies all the more where, as in the present case, it is not disputed that a remedy is available before the national court for contesting the validity of the regulation in question.
40 Moreover, the fact, stressed particularly by the applicants in the observations of 30 July 2002, that the measures provided for by the contested regulation apply for a limited period, with the consequence that the remedy provided for by Article 234 EC does not give effective judicial protection, does not prove that the contested regulation is of individual concern to them because the measures in question apply to all the operators covered by the regulation in question. In addition, to allow this reasoning would amount to accepting generally that any Community regulation changing the rules for carrying on an economic activity for a certain period is of individual concern to each of the operators engaging in that activity. That precludes a finding that the conditions under which a regulation is of individual concern to a person (see paragraph 23 above) are fulfilled.
41 Finally, in so far as the sixth and seventh submissions, to the effect that, first, the choice of quota arrangements is an erroneous, excessive and unilateral safeguard measure and, secondly, the level of tariff quotas is insufficient, challenge the legality of the contested regulation, they cannot be considered in the context of an examination of admissibility under Article 230 EC.
42 It follows from all those considerations that it is not possible in this case for the President of the Court of First Instance to consider prima facie that the contested regulation is of individual concern to the applicants and that it is open to them to seek the annulment of that regulation under the fourth paragraph of Article 230 EC. Since they do not appear to meet one of the conditions of admissibility laid down in the fourth paragraph of Article 230 EC, it is not necessary to examine whether the contested regulation is of direct concern to them. The applicants' eighth submission must be dismissed as it seeks to show that the regulation is of direct concern to them.
43 In the light of all the foregoing, the main action for the annulment of the contested regulation is prima facie manifestly inadmissible.
44 The present application for interim measures must therefore be dismissed as inadmissible.
Operative part
On those grounds,
THE PRESIDENT OF THE COURT OF FIRST INSTANCE
hereby orders:
1. The application for interim measures is dismissed.
2. The costs are reserved.