61981CJ0307_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 307/81
ALUSUISSE ITALIA SPA, 31 VIA VITTOR PISANI, MILAN, REPRESENTED BY GIUSEPPE CELONA AND GIAN CARLO GABARDINI, ADVOCATES HAVING A RIGHT OF AUDIENCE BEFORE THE SUPERIOR COURTS OF THE ITALIAN REPUBLIC, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF GEORGES MARGUE, 20 RUE PHILIPPE-II,
APPLICANT,
V
COUNCIL OF THE EUROPEAN COMMUNITIES, REPRESENTED BY FRANCO GIUFFRIDA, ADVISER IN THE LEGAL DEPARTMENT OF THE COUNCIL, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF H . J . PABBRUWE, DIRECTOR OF THE LEGAL AFFAIRS DIRECTORATE OF THE EUROPEAN INVESTMENT BANK, 100 BOULEVARD KONRAD-ADENAUER, KIRCHBERG,
AND
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISERS, PETER GILSDORF AND ANTONIO MARCHINI-CAMIA, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ORESTE MONTALTO, A MEMBER OF THE COMMISSION ' S LEGAL DEPARTMENT, JEAN MONNET BUILDING, KIRCHBERG,
DEFENDANTS,
Subject of the case
OBJECTION, AT THE PRESENT STAGE OF THE PROCEEDINGS, OF THE INADMISSIBILITY OF AN ACTION BROUGHT UNDER THE SECOND PARAGRAPH OF ARTICLE 173 OF THE EEC TREATY FOR A DECLARATION THAT COMMISSION REGULATION ( EEC ) NO 1411/81 OF 25 MAY 1981 IMPOSING A PROVISIONAL ANTI-DUMPING DUTY ON ORTHOXYLENE ( O-XYLENE ) ORIGINATING IN PUERTO RICO AND THE UNITED STATES OF AMERICA
( OFFICIAL JOURNAL L 141, P . 29 ) AND COUNCIL REGULATION ( EEC ) NO 2761/81 OF 22 SEPTEMBER 1981 IMPOSING A DEFINITIVE ANTI-DUMPING DUTY ON O-XYLENE ( ORTHOXYLENE ) ORIGINATING IN PUERTO RICO AND THE UNITED STATES OF AMERICA ( OFFICIAL JOURNAL L 270, P . 1 ) ARE VOID,
Grounds
1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 3 DECEMBER 1981 ALUSUISSE ITALIA SPA, MILAN, BROUGHT AN ACTION UNDER THE SECOND PARAGRAPH OF ARTICLE 173 OF THE EEC TREATY FOR A DECLARATION THAT COMMISSION REGULATION ( EEC ) NO 1411/81 OF 25 MAY 1981 IMPOSING A PROVISIONAL ANTI-DUMPING DUTY ON ORTHOXYLENE ( O-XYLENE ) ORIGINATING IN PUERTO RICO AND THE UNITED STATES OF AMERICA ( OFFICIAL JOURNAL L 141, P . 29 ) AND COUNCIL REGULATION ( EEC ) NO 2761/81 OF 22 SEPTEMBER 1981 IMPOSING A DEFINITIVE ANTI-DUMPING DUTY ON O-XYLENE ( ORTHOXYLENE ) ORIGINATING IN PUERTO RICO AND THE UNITED STATES OF AMERICA ( OFFICIAL JOURNAL L 270, P . 1 ) WERE VOID .
2 THOSE REGULATIONS IMPOSED, PROVISIONALLY IN ONE CASE AND DEFINITIVELY IN THE OTHER, AN ANTI-DUMPING DUTY ON ORTHOXYLENE FALLING UNDER SUBHEADING 29.01 D I OF THE COMMON CUSTOMS TARIFF AND CORRESPONDING TO NIMEXE CODE 29.01-65, AND WHICH ORIGINATED IN THE TWO ABOVEMENTIONED COUNTRIES, WITH THE EXCEPTION, HOWEVER, OF ORTHOXYLENE EXPORTED BY CERTAIN UNDERTAKINGS EXPRESSLY NAMED . THE COMMISSION REGULATION, WHICH WAS APPLICABLE FOR FOUR MONTHS OR UNTIL THE ADOPTION BY THE COUNCIL OF DEFINITIVE MEASURES, MADE THE RELEASE FOR FREE CIRCULATION OF THAT PRODUCT SUBJECT TO THE PROVISION OF A SECURITY EQUIVALENT TO THE AMOUNT OF THE PROVISIONAL DUTY . THE COUNCIL REGULATION, ON THE OTHER HAND, SPECIFIED INTER ALIA THE EXTENT TO WHICH THE AMOUNTS SECURED BY WAY OF PROVISIONAL DUTY WERE TO BE DEFINITIVELY COLLECTED .
3 THE APPLICANT PRODUCES PHTHALIC ANHYDRIDE INTENDED FOR THE MANUFACTURE OF PHTHALIC PLASTICIZERS AND RESINS . THE PRINCIPAL RAW MATERIAL NECESSARY FOR SUCH PRODUCTION IS ORTHOXYLOL ( ORTHOXYLENE ), WHICH THE APPLICANT IMPORTS AS AN INDEPENDENT IMPORTER, THAT IS TO SAY ONE WHICH IS NOT LINKED TO A MANUFACTURING OR EXPORTING UNDERTAKING, INTER ALIA FROM THE UNITED STATES AND FROM PUERTO RICO .
4 SINCE THE COUNCIL AND THE COMMISSION RAISED AN OBJECTION OF INADMISSIBILITY UNDER ARTICLE 91 ( 1 ) OF THE RULES OF PROCEDURE, THE COURT DECIDED TO ADJUDICATE ON THE QUESTION OF THE ADMISSIBILITY OF THE APPLICATION FOR A DECLARATION THAT THE MEASURES WERE VOID, WITHOUT EXAMINING THE SUBSTANTIVE ISSUES OF THE CASE .
5 THE OBJECTION RAISED BY THE COUNCIL IS THAT COUNCIL REGULATION NO 2761/81 IS A REGULATION OF GENERAL APPLICATION WHICH IS NOT OF INDIVIDUAL CONCERN TO THE APPLICANT AND THAT, UNDER THE SECOND PARAGRAPH OF ARTICLE 173 OF THE TREATY, THE LATTER IS NOT ENTITLED TO SEEK A DECLARATION THAT A REGULATION IS VOID . THE COMMISSION FOR ITS PART CHALLENGES THE ADMISSIBILITY OF THE APPLICATION IN SO FAR AS IT IS DIRECTED AGAINST COMMISSION REGULATION NO 1411/81 ON THE GROUND THAT THE TIME-LIMIT LAID DOWN BY THE THIRD PARAGRAPH OF ARTICLE 173 WAS NOT MET AND SUPPORTS THE ARGUMENTS OF THE COUNCIL WITH REGARD TO THE ADMISSIBILITY OF THE ACTION BROUGHT AGAINST THE COUNCIL REGULATION .
6 IT IS COMMON GROUND THAT COMMISSION REGULATION NO 1411/81 HAS ESSENTIALLY THE SAME OBJECTIVE AS COUNCIL REGULATION NO 2761/81, SINCE THE TWO MEASURES IMPOSE AN ANTI-DUMPING DUTY ON THE SAME PRODUCT COMING FROM THE SAME NON-MEMBER COUNTRIES . IT FOLLOWS FROM THIS THAT IF THE APPLICATION, IN SO FAR AS IT IS DIRECTED AGAINST THE DEFINITIVE MEASURE OF THE COUNCIL, IS INADMISSIBLE BY REASON OF ITS LEGISLATIVE NATURE AS REGARDS THE APPLICANT, THE SAME RESULT APPLIES TO THE PROVISIONAL MEASURE OF THE COMMISSION . CONSEQUENTLY, IT IS NECESSARY TO CONSIDER WHETHER THIS APPLICATION FOR A DECLARATION THAT THE TWO REGULATIONS ARE VOID IS ADMISSIBLE UNDER THE SECOND PARAGRAPH OF ARTICLE 173 OF THE TREATY .
7 THE SECOND PARAGRAPH OF ARTICLE 173 OF THE TREATY MAKES THE ADMISSIBILITY OF PROCEEDINGS INSTITUTED BY AN INDIVIDUAL FOR A DECLARATION THAT A MEASURE IS VOID DEPENDENT ON FULFILMENT OF THE CONDITION THAT THE CONTESTED MEASURE, ALTHOUGH IN THE FORM OF A REGULATION, IN FACT CONSTITUTES A DECISION WHICH IS OF DIRECT AND INDIVIDUAL CONCERN TO HIM . THE OBJECTIVE OF THAT PROVISION IS IN PARTICULAR TO PREVENT THE COMMUNITY INSTITUTIONS, MERELY BY CHOOSING THE
FORM OF A REGULATION, FROM BEING ABLE TO EXCLUDE AN APPLICATION BY AN INDIVIDUAL AGAINST A DECISION OF DIRECT AND INDIVIDUAL CONCERN TO HIM AND THUS TO MAKE CLEAR THAT THE CHOICE OF FORM MAY NOT ALTER THE NATURE OF A MEASURE .
8 NEVERTHELESS AN ACTION BROUGHT BY AN INDIVIDUAL IS NOT ADMISSIBLE IN SO FAR AS IT IS DIRECTED AGAINST A REGULATION HAVING GENERAL APPLICATION WITHIN THE MEANING OF THE SECOND PARAGRAPH OF ARTICLE 189 OF THE TREATY, THE TEST FOR DISTINGUISHING BETWEEN A REGULATION AND A DECISION, ACCORDING TO THE SETTLED CASE-LAW OF THE COURT, BEING WHETHER OR NOT THE MEASURE IN QUESTION HAS GENERAL APPLICATION . IT IS THEREFORE NECESSARY TO APPRAISE THE NATURE OF THE CONTESTED MEASURES AND IN PARTICULAR THE LEGAL EFFECTS WHICH THEY ARE INTENDED TO PRODUCE OR IN FACT PRODUCE .
9 IN THAT CONNECTION IT SHOULD BE BORNE IN MIND THAT THE REGULATIONS AT ISSUE HAVE AS THEIR OBJECT THE IMPOSITION OF AN ANTI-DUMPING DUTY ON ALL IMPORTS OF ORTHOXYLENE ORIGINATING IN THE UNITED STATES OF AMERICA AND PUERTO RICO, SUBJECT TO CERTAIN EXEMPTIONS LAID DOWN FOR PRODUCTS EXPORTED BY UNDERTAKINGS EXPRESSLY NAMED . CONSEQUENTLY, SUCH MEASURES CONSTITUTE, AS REGARDS INDEPENDENT IMPORTERS WHO, IN CONTRAST TO EXPORTERS, ARE NOT EXPRESSLY NAMED IN THE REGULATIONS, MEASURES HAVING GENERAL APPLICATION WITHIN THE MEANING OF THE SECOND PARAGRAPH OF ARTICLE 189 OF THE TREATY, BECAUSE THEY APPLY TO OBJECTIVELY DETERMINED SITUATIONS AND ENTAIL LEGAL EFFECTS FOR CATEGORIES OF PERSONS REGARDED GENERALLY AND IN THE ABSTRACT .
10 THE APPLICANT CLAIMS IN THAT CONNECTION THAT, ALTHOUGH THE CONTESTED MEASURES WERE ADOPTED IN THE FORM OF REGULATIONS, THEY IN FACT CONSTITUTE DECISIONS CONCERNING IT SINCE IMPORTERS OF ORTHOXYLENE WHO ARE ALSO USERS OF THAT SUBSTANCE FORM A CLOSED CATEGORY OF TRADERS OF A LIMITED NUMBER WHOSE IDENTITY WAS KNOWN AT THE DATE WHEN THE REGULATIONS WERE ADOPTED .
11 THAT ARGUMENT MUST BE REJECTED . AS THE COURT HAS ALREADY STATED, A MEASURE DOES NOT CEASE TO BE A REGULATION BECAUSE IT IS POSSIBLE TO DETERMINE THE NUMBER OR EVEN THE IDENTITY OF THE PERSONS TO WHOM IT APPLIES AT ANY GIVEN TIME AS LONG AS IT IS ESTABLISHED THAT SUCH APPLICATION TAKES EFFECT BY VIRTUE OF AN OBJECTIVE LEGAL OR FACTUAL SITUATION DEFINED BY THE MEASURE IN RELATION TO ITS
PURPOSE . THAT APPLIES TO INDEPENDENT IMPORTERS OF ORTHOXYLENE . UNDER THE REGULATIONS THE ANTI-DUMPING DUTY IS IMPOSED ON PERSONS IMPORTING THE PRODUCT FROM THE COUNTRIES IN QUESTION SOLELY BY REFERENCE TO THE OBJECTIVE CRITERION THAT THEY ARE IMPORTERS OF THAT PRODUCT . CONSEQUENTLY, THE REGULATIONS AT ISSUE CONSTITUTE, AS REGARD SUCH IMPORTERS, MEASURES HAVING GENERAL APPLICATION WITHIN THE MEANING OF THE SECOND PARAGRAPH OF ARTICLE 189 OF THE TREATY AND NOT DECISIONS OF DIRECT AND INDIVIDUAL CONCERN TO THEM .
12 IN FAVOUR OF THE ADMISSIBILITY OF ITS APPLICATION THE APPLICANT ALSO ARGUES THAT THE PARTICULAR FEATURES OF THE PROCEDURE LEADING TO THE ADOPTION OF THE ANTI-DUMPING REGULATIONS, IN PARTICULAR THE PARTICIPATION OF THE VARIOUS INTERESTED PARTIES IN THE SUCCESSIVE STAGES OF THAT PROCEDURE, LEAD TO THE CONCLUSION THAT THE MEASURES IN QUESTION CONSTITUTE INDIVIDUAL ADMINISTRATIVE MEASURES WHICH MAY BE CONTESTED BY INDIVIDUALS UNDER THE SECOND PARAGRAPH OF ARTICLE 173 OF THE TREATY .
13 THAT ARGUMENT MUST ALSO BE REJECTED SINCE THE DISTINCTION BETWEEN A REGULATION AND A DECISION MAY BE BASED ONLY ON THE NATURE OF THE MEASURE ITSELF AND THE LEGAL EFFECTS WHICH IT PRODUCES AND NOT ON THE PROCEDURES FOR ITS ADOPTION . THAT SOLUTION IS FURTHERMORE IN CONFORMITY WITH THE SYSTEM OF REMEDIES PROVIDED FOR BY COMMUNITY LAW SINCE IMPORTERS MAY CONTEST BEFORE THE NATIONAL COURTS INDIVIDUAL MEASURES TAKEN BY THE NATIONAL AUTHORITIES IN APPLICATION OF THE COMMUNITY REGULATIONS .
14 FOR ALL THOSE REASONS, IT MUST BE CONCLUDED THAT THE CONTESTED MEASURES ARE REGULATIONS AND NOT DECISIONS WITHIN THE MEANING OF THE SECOND PARAGRAPH OF ARTICLE 173 OF THE TREATY, SO THAT THE APPLICATION MUST BE DISMISSED AS INADMISSIBLE .
Decision on costs
COSTS
PURSUANT TO ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . SINCE THE APPLICANT HAS FAILED IN ITS SUBMISSIONS, IT MUST BE ORDERED TO PAY THE COSTS .
Operative part
ON THOSE GROUNDS,
THE COURT ( THIRD CHAMBER )
HEREBY :
1 . DISMISSES THE APPLICATION AS INADMISSIBLE ;
2 . ORDERS THE APPLICANT TO PAY THE COSTS .