61985CO0260_EN
Parties
Subject of the case
Grounds
Operative part
Parties
IN CASE 260/85 R
TOKYO ELECTRIC COMPANY LTD ( TEC ), WHOSE REGISTERED OFFICE IS IN TOKYO, JAPAN, TEC BELGIUM SA, WHOSE REGISTERED OFFICE IS IN BRUSSELS, BELGIUM, TEC ELECTRONIC GMBH, WHOSE REGISTERED OFFICE IS IN RATINGEN, FEDERAL REPUBLIC OF GERMANY, TEC EUROPE LIMITED, WHOSE REGISTERED OFFICE IS IN LONDON, ENGLAND, AND TEC FRANCE SA, WHOSE REGISTERED OFFICE IS IN GENTILLY, FRANCE, ALL REPRESENTED BY J.-F . BELLIS
AND I . VAN BAEL, OF THE BRUSSELS BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF MESSRS ELVINGER AND HOSS, 15 COTE D ' EICH,
APPLICANTS,
SUPPORTED BY
UTAX GMBH ORGANISATIONS SYSTEMS, WHOSE REGISTERED OFFICE IS AT HAMBURG, FEDERAL REPUBLIC OF GERMANY, REPRESENTED BY DR P . CZIRMICH, RECHTSANWALT, MUNICH, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF MESSRS ELVINGER AND HOSS, 15 COTE D ' EICH,
INTERVENER,
V
COUNCIL OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS AGENTS, H.-J . LAMBERS, DIRECTOR OF ITS LEGAL DEPARTMENT, AND E.-H . STEIN, A LEGAL ADVISER IN THAT DEPARTMENT, ASSISTED BY FRANCIS JACOBS, QUEEN ' S COUNSEL, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF JORG KASER, DIRECTOR OF THE LEGAL DEPARTMENT OF THE EUROPEAN INVESTMENT BANK, 100 BOULEVARD KONRAD-ADENAUER,
DEFENDANT,
SUPPORTED BY
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS AGENT, J . TEMPLE LANG, A MEMBER OF ITS LEGAL DEPARTMENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF G . KREMLIS, JEAN MONNET BUILDING, KIRCHBERG,
AND
COMMITTEE OF EUROPEAN TYPEWRITER MANUFACTURERS, HEREINAFTER REFERRED TO AS CETMA, WHOSE REGISTERED OFFICE IS IN COLOGNE, FEDERAL REPUBLIC OF GERMANY, REPRESENTED BY DR D . EHLE, U . FELDMANN AND DR V . SCHILLER, RECHTSANWALTE, COLOGNE, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF MESSRS ARENDT AND HARLES, 34 B RUE PHILIPPE-II,
INTERVENERS,
Subject of the case
APPLICATION, PRIMARILY, FOR AN ORDER SUSPENDING THE DEFINITIVE ANTI-DUMPING DUTY IMPOSED BY ARTICLE 1 OF COUNCIL REGULATION NO 1698/85 OF 19 JUNE 1985 IMPOSING A DEFINITIVE ANTI-DUMPING DUTY ON IMPORTS OF ELECTRIC TYPEWRITERS ORIGINATING IN JAPAN, INCLUDING THOSE OF THE APPLICANTS ( OFFICIAL JOURNAL 1985, L 163, P . 1 ), IN SO FAR AS THAT DUTY EXCEEDS THE LEVEL OF THE PROVISIONAL ANTI-DUMPING DUTY IMPOSED BY ARTICLE 1 ( 3 ) OF COMMISSION REGULATION NO 3643/84 OF 20 DECEMBER 1984 ( OFFICIAL JOURNAL 1984, L 335, P . 43 ),
Grounds
1 BY AN APPLICATION DATED 22 AUGUST 1985, TOKYO ELECTRIC COMPANY LTD, TEC BELGIUM, TEC ELECTRONIC GMBH, TEC EUROPE LIMITED AND TEC FRANCE REQUESTED THE COURT, PRIMARILY, TO SUSPEND THE DEFINITIVE ANTI-DUMPING DUTY IMPOSED BY ARTICLE 1 OF REGULATION NO 1698/85, CITED ABOVE, ON IMPORTS OF ELECTRONIC TYPEWRITERS MANUFACTURED BY TOKYO ELECTRIC COMPANY LTD, IN SO FAR AS THAT DUTY EXCEEDS THE LEVEL OF THE PROVISIONAL ANTI-DUMPING DUTY IMPOSED BY ARTICLE 1 ( 3 ) OF REGULATION NO 3643/84 OR, IN THE ALTERNATIVE, TO SUSPEND THE TIME-LIMIT OF THREE MONTHS FOR APPLICATIONS FOR REIMBURSEMENT UNDER ARTICLE 16 ( 2 ) OF COUNCIL REGULATION NO 2176/84 OF 23 JULY 1984 ( OFFICIAL JOURNAL 1984, L 201, P . 1 ) IN RESPECT OF THE PROVISIONAL AND DEFINITIVE ANTI-DUMPING DUTIES COLLECTED ON THE PRODUCTS MANUFACTURED BY THE APPLICANTS .
2 THAT APPLICATION, WHICH WAS LODGED AT THE COURT REGISTRY ON 23 AUGUST 1985, WAS MADE UNDER ARTICLES 185 AND 186 OF THE EEC TREATY AND ARTICLE 83 OF THE RULES OF PROCEDURE .
3 THE APPLICANTS REFER TO THE APPLICATION FOR THE ANNULMENT OF ARTICLES 1 AND 2 OF THE AFORESAID REGULATION NO 1698/85, WHICH APPLICATION THEY LODGED ON 19 AUGUST 1985 .
4 BY AN ORDER DATED 4 SEPTEMBER 1985 UTAX WAS GRANTED LEAVE, UNDER THE SECOND PARAGRAPH OF ARTICLE 37 OF THE STATUTE OF THE COURT OF JUSTICE OF THE EEC, TO INTERVENE IN CASE 260/85 R IN SUPPORT OF THE CONCLUSIONS OF THE APPLICANTS . IT LODGED WRITTEN OBSERVATIONS ON 13 SEPTEMBER 1985 .
5 BY TWO ORDERS DATED 4 SEPTEMBER 1985, THE COMMISSION AND CETMA WERE GRANTED LEAVE, UNDER THE FIRST AND THE SECOND PARAGRAPHS OF ARTICLE 37 OF THE STATUTE OF THE COURT OF JUSTICE OF THE EEC RESPECTIVELY, TO INTERVENE IN CASE 260/85 R IN SUPPORT OF THE CONCLUSIONS OF THE DEFENDANT . THE COMMISSION LODGED WRITTEN OBSERVATIONS ON 13 SEPTEMBER 1985 .
6 BY TWO TELEX MESSAGES OF 9 OCTOBER 1985 THE COURT PUT QUESTIONS TO CETMA AND THE COMMISSION . CETMA WAS REQUESTED TO SUBMIT ITS REPLIES IN WRITING BY 9.30 AM ON 14 OCTOBER 1985, AND THE COMMISSION WAS REQUESTED TO REPLY AT THE HEARING ON THE SAME DATE .
7 THE DEFENDANT LODGED WRITTEN OBSERVATIONS ON 13 SEPTEMBER 1985 . THE PARTIES PRESENTED ORAL ARGUMENT ON 14 OCTOBER 1985 .
8 IT IS NECESSARY TO SET OUT THE STAGES WHICH LED UP TO THE COUNCIL ' S ADOPTION OF REGULATION NO 1698/85 . ON 15 FEBRUARY 1984, A COMPLAINT WAS LODGED WITH THE COMMISSION BY CETMA ALLEGING THE DUMPING OF TYPEWRITERS ORIGINATING IN JAPAN, INCLUDING THOSE OF THE APPLICANTS . ON THE BASIS OF THE INVESTIGATIONS CONDUCTED AS A RESULT OF THAT COMPLAINT, THE COMMISSION ADOPTED, ON 20 DECEMBER 1984, REGULATION NO 3643/84 ( OFFICIAL JOURNAL 1984, L 335, P . 43 ). ARTICLE 1 ( 3 ) OF THAT REGULATION IMPOSED A PROVISIONAL ANTI-DUMPING DUTY OF 6.9% ON TYPEWRITERS EXPORTED BY THE APPLICANTS, A DUTY WHICH IS THE SUBJECT OF AN APPLICATION FOR ANNULMENT PENDING BEFORE THE COURT OF JUSTICE . ON 19 JUNE 1985 THE COUNCIL ADOPTED REGULATION NO 1698/85 . ARTICLE 1 ( 4 ) OF THAT REGULATION IMPOSES A DEFINITIVE ANTI-DUMPING DUTY OF 21% ON TYPEWRITERS EXPORTED BY THE APPLICANTS AND ARTICLE 2 PROVIDES FOR THE DEFINITIVE COLLECTION OF THE PROVISIONAL ANTI-DUMPING DUTIES WHICH HAD BEEN IMPOSED BY REGULATION NO 3643/84 .
9 THE APPLICANTS CLAIM THAT, IF THEY ARE NOT TO SUFFER SERIOUS AND IRREPARABLE DAMAGE, THE EFFECT OF THAT REGULATION MUST BE SUSPENDED AS REGARDS THEM UNTIL THE COURT HAS GIVEN JUDGMENT ON THE MAIN APPLICATION .
10 ACCORDING TO ARTICLE 185 OF THE EEC TREATY, ACTIONS BROUGHT BEFORE THE COURT OF JUSTICE SHALL NOT HAVE SUSPENSORY EFFECT . THE COURT OF JUSTICE MAY, HOWEVER, IF IT CONSIDERS THAT THE CIRCUMSTANCES SO REQUIRE, ORDER THAT APPLICATION OF THE CONTESTED ACT BE SUSPENDED AND PRESCRIBE ANY OTHER INTERIM MEASURE PURSUANT TO ARTICLES 185 AND 186 OF THE TREATY .
11 AS A CONDITION ENABLING SUCH MEASURES TO BE GRANTED, ARTICLE 83 ( 2 ) OF THE RULES OF PROCEDURE PROVIDES THAT AN APPLICATION FOR INTERIM MEASURES MUST STATE THE CIRCUMSTANCES GIVING RISE TO URGENCY AND THE FACTUAL AND LEGAL GROUNDS ESTABLISHING A PRIMA FACIE CASE FOR THE INTERIM MEASURES APPLIED FOR .
12 IN THAT CONNECTION THE CHIEF GROUND WHICH, IN THE APPLICANTS '
SUBMISSION, ESTABLISHES A PRIMA FACIE CASE FOR THE MEASURES WHICH THEY SEEK IS THE FACT THAT THEY WERE DISCRIMINATED AGAINST, AS COMPARED WITH NAKAJIMA ALL, WHICH WAS THE ONLY JAPANESE PRODUCER OF ELECTRONIC TYPEWRITERS ON WHOM NO PROVISIONAL OR DEFINITIVE ANTI-DUMPING DUTY WAS IMPOSED . IN SUPPORT OF THAT ARGUMENT, THEY STATE IN PARTICULAR THAT THE REASONABLE MARGIN OF PROFIT - AS REFERRED TO BY ARTICLE 2 ( 3 ) ( B ) ( II ) OF COUNCIL REGULATION NO 2176/84 OF 23 JULY 1984 ( OFFICIAL JOURNAL 1984, L 201, P . 1 ), THE BASIC REGULATION ON DUMPING - WHICH THE COMMISSION APPLIED IN CALCULATING THE NORMAL VALUE OF THEIR PRODUCTS WAS NEVER THE SAME AS THAT APPLIED IN THE CASE OF NAKAJIMA ALL .
13 IN THAT REGARD IT SHOULD BE NOTED THAT THE COMMISSION ADOPTED, ON 7 OCTOBER 1985, REGULATION NO 2812/85 ( OFFICIAL JOURNAL 1985, L 266, P . 5 ), ARTICLE 1 ( 2 ) OF WHICH IMPOSES A PROVISIONAL ANTI-DUMPING DUTY OF 28% ON IMPORTS OF ELECTRONIC TYPEWRITERS MANUFACTURED BY NAKAJIMA ALL . RECITAL 8 OF THAT REGULATION STATES THAT THE PROFIT MARGIN APPLIED TO NAKAJIMA ALL IS THAT REFERRED TO IN RECITAL 16 OF COUNCIL REGULATION NO 1698/85, CITED ABOVE .
14 WHILE THE DUTY IMPOSED BY REGULATION NO 2812/85 IS ONLY PROVISIONAL, THE ECONOMIC IMPACT WHICH IT WILL HAVE DURING THE PERIOD LAID DOWN IN THAT REGULATION WILL BE SUBSTANTIALLY THE SAME AS THE ECONOMIC EFFECT OF THE DEFINITIVE ANTI-DUMPING DUTY IMPOSED ON THE APPLICANTS '
PRODUCTS BY COUNCIL REGULATION NO 1698/85, IN VIEW OF THE FACT THAT IT IS POSSIBLE, OR EVEN LIKELY, THAT THE COUNCIL WILL IMPOSE DEFINITIVE ANTI-DUMPING DUTIES ON NAKAJIMA ALL ' S ELECTRONIC TYPEWRITERS AND ORDER THE DEFINITIVE COLLECTION OF THE PROVISIONAL ANTI-DUMPING DUTIES .
15 WHILE IT IS POSSIBLE THAT THE APPLICANTS MAY AT ONE TIME HAVE BEEN DISCRIMINATED AGAINST, AS COMPARED WITH NAKAJIMA ALL, IT MUST BE STATED THAT THERE IS NO LONGER ANY DIFFERENCE IN TREATMENT AT THE DATE OF THE PRESENT ORDER . THERE IS THEREFORE NO PURPOSE IN CONSIDERING WHETHER THAT GROUND MIGHT HAVE ESTABLISHED A PRIMA FACIE CASE FOR THE INTERIM MEASURES REQUESTED BY THE APPLICANTS .
16 AS REGARDS THE APPLICANTS '
REQUEST FOR AN ORDER SUSPENDING THE TIME-LIMIT OF THREE MONTHS, PRESCRIBED FOR APPLICATIONS FOR REIMBURSEMENT UNDER ARTICLE 16 ( 2 ) OF COUNCIL REGULATION NO 2176/84 IN RESPECT OF THE PROVISIONAL AND DEFINITIVE ANTI-DUMPING DUTIES COLLECTED ON ELECTRONIC TYPEWRITERS PRODUCED BY THE APPLICANTS, IT APPEARS THAT THAT PROBLEM WILL ONLY ARISE IF THE COURT, IN THE JUDGMENT ON THE MAIN APPLICATION, DECIDES THAT ARTICLES 1 AND 2 OF COUNCIL REGULATION NO 1698/85 SHOULD BE ANNULLED IN PART . IN ORDER TO RESOLVE THIS PROBLEM SHOULD IT ARISE, THE COMMISSION ' S REPRESENTATIVE STATED AT THE HEARING THAT THE COMMISSION WAS PREPARED TO ALLOW THE APPLICANTS TO LODGE PRO FORMA APPLICATIONS FOR REIMBURSEMENT OF THE ANTI-DUMPING DUTIES, WITHIN THE PRESCRIBED TIME-LIMIT, IN PLACE OF THE LONGER AND MORE COMPLICATED APPLICATIONS WHICH MUST NORMALLY BE COMPLETED . IF SUCH PRO FORMA APPLICATIONS ARE TO BE VALID, HOWEVER, THEY WOULD HAVE TO CONTAIN THE ESSENCE OF THE INFORMATION THAT IS NEEDED . THE COMMISSION STATED THAT IT WAS PREPARED TO DISCUSS WITH COUNSEL FOR THE APPLICANTS PRECISELY WHAT INFORMATION WOULD HAVE TO BE GIVEN IN SUCH PRO FORMA APPLICATIONS . THE PRESIDENT TAKES FORMAL NOTE OF THOSE STATEMENTS, WHICH WILL ENABLE THE POSSIBLE DANGER REFERRED TO BY THE APPLICANTS TO BE AVERTED . IT WOULD THEREFORE SERVE NO USEFUL PURPOSE FOR THE PRESIDENT TO EXAMINE THE QUESTION WHETHER THEIR APPLICATION FOR INTERIM MEASURES SATISFIES THE OTHER REQUIREMENTS FOR THE GRANT THEREOF .
17 ON THE BASIS OF THE FOREGOING CONSIDERATIONS, IT APPEARS THAT, AS REGARDS THEIR FIRST REQUEST, THE APPLICANTS HAVE NOT PUT FORWARD FACTUAL AND LEGAL GROUNDS ESTABLISHING A PRIMA FACIE CASE FOR THE INTERIM MEASURES WHICH THEY SEEK, AND THAT, AS REGARDS THEIR SECOND REQUEST, THEY HAVE FAILED TO ESTABLISH SUFFICIENTLY THAT THEY WOULD SUFFER IRREPARABLE DAMAGE .
Operative part
ON THOSE GROUNDS,
THE PRESIDENT,
BY WAY OF INTERIM DECISION,
HEREBY ORDERS AS FOLLOWS :
( 1 ) THE APPLICATION FOR THE ADOPTION OF INTERIM MEASURES IS DISMISSED ;
( 2 ) COSTS ARE RESERVED .