61981C0307
OPINION OF MRS ADVOCATE GENERAL ROZÈS
DELIVERED ON 16 SEPTEMBER 1982 (
1
)
Mr President,
Members of the Court,
Alusuisse Italia SpA [hereinafter referred to as “Alusuisse”] has brought an action before the Court 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 antidumping duty on orthoxylene (o-Xylene) originating in Puerto Rico and the United States of America and Council Regulation (EEC) No 2761/81 of 22 September 1981 imposing a definitive antidumping duty on the same product are void.
1. The facts are as follows:
(a)
The applicant manufactures at its plant in the vicinity of Scanzorosciate, Bergamo, phtalic anhydride, an intermediate product employed in the production of plasticizers and resins. Orthoxylene, which is a raw material required for such production, is imported from the United States and from Puerto Rico, directly or through a broker in Amsterdam. Thus, unlike its competitors in the field of phthalic plasticizers and resins, Alusuisse does not itself manufacture the orthoxylene which it requires and furthermore does not belong to a group of undertakings which includes a manufacturer of that product. It is an independent importer.
The contested regulations were adopted on the basis of Council Regulation No 3017/79 of 20 December 1979 on protection against dumped or subsidized imports from countries not members of the European Economic Community. They imposed an antidumping duty on all imports of orthoxylene from the United States and Puerto Rico (Articles 1 (1)), with the exception of imports from certain expressly named undertakings (Articles 1 (2)). They fixed the rate of duty at 14.47% of the customs value, except for exports made by a number of other undertakings, which were also named, for which the rate was reduced (Articles 1 (3)).
(b)
With regard to that application, which was lodged on 3 December 1981, both the defendants have requested the Court pursuant to Article 91 (1) of the Rules of Procedure to decide on the objection of inadmissibility without examining the substantive issues of the case. By order of 9 June 1982 the Court acceded to that request and decided to open the oral procedure with regard to the objection alone. By a second order of the same date it also decided to assign the case to the Third Chamber.
My opinion accordingly relates only to the admissibility of the application.
The Council bases its objection of inadmissibility on the argument that the regulation adopted by it constitutes a regulation having general application which is not of individual concern to Alusuisse. The two conditions prescribed by the second paragraph of Article 173 are therefor not fulfilled.
The Commission challenges the admissibility of the action brought against its regulation on the ground that the time-limit prescribed 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 latter.
It is common ground that the action brought against the Commission regulation is subsidiary to that brought against the Council regulation. It follows that, if the action brought against Regulation No 2761/81 is inadmissible on account of the legislative nature of that regulation, the same applies to the action brought against the Commission regulation, since it is not contested that in that respect the Commission regulation does not differ from the subsequent Council regulation.
(c)
Essentially this case turns on the admissibility of an action brought by an independent against measures introducing an antidumping duty.
As the Court is aware, such measures have hitherto led to a single group of judgments, namely those delivered on 29 March 1979 in the Japanese ball-bearings cases. (
2
) However, Alusuisse's action is not comparable to the actions in those cases, which were brought either by the Japanese manufacturers and exporters in conjunction with their European subsidiaries or (in the ISO case) by the European subsidiary of a Japanese manufacturer and exporter. Furthermore, the measure which was challenged on that occasion (Council Regulation No 1778/77) expressly named the manufacturing and exporting undertakings on whose products the antidumping duty was imposed.
Likewise the action brought by Alusuisse is not comparable to that brought by the Celanese Chemical Company (Case 236/81, at present before the Court), which concerns Council Regulation No 1282/81 of 12 May 1981, which imposed an antidumping duty on vinyl acetate monomer originating in the United States of America. First, the Celanese Chemical Company is a manufacturer of that product and not an importer; secondly, it is expressly named in Article 1 (3) of the regulation in question.
2.
As I have stated, the essential problem posed by this case is that of ascertaining whether the conditions — which are undoubtedly restrictive (
3
) — to which the second paragraph of Article 173 of the Treaty subjects the admissibility of an application made by an ordinary applicant for a declaration that a measure of the Council or of the Commission is void are met where an action is brought by an importer against a regulation imposing an antidumping duty on the products which he imports into the Community.
(a)
As is made clear in particular by the judgment of the Court of 17 June 1980 in the Calpak case, (
4
) the second paragraph of Article 173 “empowers individuals to contest, inter alia, any decision which, although in the form of a regulation, is of direct and individual concern to them” (paragraph 7 of the decision at p. 1961). It therefore lays down three conditions for the admissibility of an action brought under that article for a declaration that a measure is void:
—
The contested measure must be a regulation in form only and in reality constitute a decision.
—
It must be of direct concern to the applicant.
—
It must be of individual concern to him.
It is not disputed that Regulation No 2761/81 is of direct concern to Alusuisse.
(b)
It appears to me more logical in this case to begin my examining the condition concerning the nature of the measure and to determine whether in reality it constitutes a decision. From its very first judgment concerning the second paragraph of Article 173 the Court has held that “the criterion for the distinction between the terms ‘decision’ and ‘regulation’ should be sought in the general ‘application ’or otherwise of the measure in question”. (
5
) The Court has also held from the outset that a measure has general application when it “applies to objectively determined situations and involves legal effects in respect of categories of persons regarded generally and in the abstract”. (
6
)
Furthermore the Court has held that a measure does not cease to be a regulation merely because it is possible to determine with a greater or lesser degree of accuracy 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 (settled case-law of the Court from the judgment of 11 July 1968 in Case 6/68 Zuckerfabrik Watenstedt (
7
) to the abovementioned judgment of 25 March 1982 in the Moksel case, at paragraph 17).
(c)
According to Alusuisse, owing to the special nature of the procedure leading to the adoption of the antidumping regulations, they cannot be regarded as measures of general application and of a legislative nature, displaying all the characteristics of a legislative measure. The participation of the various interested parties in the successive stages of the procedure, namely the lodging of the complaint, the hearing of the interested parties and the latter's right to request a review, is a typical feature of administrative measures. Moreover, the inclusion in the procedure for adopting such measures of elements peculiar to judicial procedure (initiation of the procedure by complaint, rules of evidence, right of review), as is emphasized by the report of the European Parliament known as the Welsh Report, (
8
) renders them still more different and removed from legislative measures.
It is clear that in the light of the Court's previous decisions that line of argument cannot be upheld. In fact it is evident that it wrongly assimilates the stage preparatory to the adoption of the regulation to the adoption itself. In other words, it confuses the nature of the investigation with the nature of the measure. As I have pointed out to the Court, the distinction in its case-law between a regulation and a decision is founded on the nature and effects of the measure and not on the manner of its adoption.
This is confirmed by the judgments in which the court has already rejected arguments similar to those of Alusuisse. In the Koninklijke Scholten Honig case the applicant, in support of its argument that the regulation at issue in reality constituted a group of individual decisions, relied upon the fact that the Commission, in organizing a hearing for traders adversely affected by that regulation, did not issue an open invitation worded in general terms but invited the representatives of the clearly defined group of manufacturers of glucose with a high fructose content. (
9
) In its judgment of 5 May 1977 the Court dismissed the application as inadmissible without giving an express ruling on that argument. However, in its judgment of 18 March 1975 (
10
) the Court expressly rejected the same argument when it held that “the mere fact that those organizations [the applicants] took part in the discussions which preceded the disputed measure is not sufficient to change the nature of the right of action which, in the context of Article 173, they may possess in relation to that measure” (paragraph 19, p. 410).
(d)
The second argument put forward by Alusuisse in reply to the objection is that the category of addressees of the regulation to which it belongs is closed and that it forms a genus limitatum which cannot be modified. Alusuisse bases that argument on the judgments in which the Court has upheld the admissibility of applications based on the second paragraph of Article 173, refusing to consider the contested measure to be legislation on the ground that when it was adopted the number of persons affected by it could not be increased. (
11
) It refers in particular to paragraph 11 of the judgment of 29 March 1979 in one of the ball-bearing cases, (
12
) where the Court stated that “Article 3 [of Regulation No 1778/77] constitutes ... a collective decision relating to named addressees” and that “the special feature ... which sets it apart is that it does not concern all importers but only those who have imported the products manufactured by the four major Japanese producers named in that article”.
Alusuisse considers that the category of known importers of orthoxylene in the Community is a closed category because in the absence of independent middlemen (brokers or traders) it is restricted to users of that substance, namely producers of phthalic anhydride. Such producers constitute a stable group owing to the complexity and cost of their plant. Consequently, the number of importers was known and invariable at the time at which the procedure leading to the adoption of the antidumping regulation began, at the date of their adoption and indeed afterwards.
In my opinion that argument must also be rejected.
On a point of fact it should be noted that the argument is at variance with the information provided by Alusuisse itself, according to which it imports the orthoxylene which it requires partly through a broker in Amsterdam.
However, it is principally on legal grounds that the argument appears to me to be open to challenge. As I have stated, it is in fact of little importance whether the Community institutions are aware of the number or even the identity of the persons to whom a measure applies as long as -it-- is established that such application takes effect by virtue of an objective situation defined by that measure in relation to its purpose. Even if it were assumed that the number of persons known to be importers might be considered to be a numerus clausus — which is far from certain, since the words “known to be” provide room for discretion — that case-law would still apply if it were established that Regulation No 2761/81 is applied to importers of orthoxylene by virtue of an objective situation defined by that measure in relation to its purpose.
That is indeed the case. The applicant has not even tried to show that the antidumping duty on orthoxylene originating in Puerto Rico and the United States of America, provided for by Regulation No 2761/81, is not imposed on importers of that product solely by reason of their being importers — an objective criterion — after the existence of dumping has been established by the Commission in accordance with Council Regulation No 3017/79 of 20 December 1979 and with the sole objective of putting an end to that unlawful practice in international trade.
In that respect Alusuisse's position is not comparable to that of the importers of ball bearings from Japan mentioned in Article 3 of Regulation No 1778/77 who were covered by that article not solely by reason of their being importers but because they were importers of products manufactured by the four big Japanese manufacturers.
In fact apart from such exceptional cases importers are not, with regard to an antidumping regulation which forms the basis for the charging of such duties, in a different position from that resulting from regulations amending the Common Customs Tariff which give rise to the imposition of customs duties; moreover, both kinds of regulation are adopted within the framework of the commercial policy of the Community (Article 113 (1) of the Treaty). No importer has ever claimed that the regulations concerning the Common Customs Tariff are not of general application and constitute a group of individual decisions addressed to each actual or potential importer. The position cannot differ therefore with regard to regulations adopted to prevent dumping.
Consequently, I consider that it cannot be seriously doubted that Council Regulation No 2761/81 indeed constitutes a measure of general application aimed at and affecting all importers of orthoxylene originating in the United States of America and Puerto Rico. That consideration alone renders Alusuisse's application inadmissible in so far as it is directed against that regulation and also in so far as it is directed against Commission Regulation No 1411/81, which preceded it and which does not differ from it in this respect.
(e)
Furthermore, the very fact that these measures, because they have general application, apply in the same fashion to all importers of orthoxylene originating in the United States and Puerto Rico (other than those importing the products of the undertakings specified in the regulations) means that they cannot be of individual concern to the importers, according to the interpretation which has been placed on those words by the Court. The measures affect them solely by reason of their membership of the category, which is defined in the abstract, of importers of the product referred to, and not by reason of certain attributes which are peculiar to them or by reason of circumstances which distinguish them from all other persons, by virtue of which they are identified individually just as in the case of the person addressed. (
13
)
In conclusion I can only propose that the Court should dismiss the action brought by Alusuisse against Commission Regulation No 1411/81 and Council Regulation No 2761/81 and order it to pay the costs pursuant to the first subparagraph of Article 69 (2) of the Rules of Procedure.
(
1
)	Translated from the French.
(
2
)	Case- 113/77 NTN Toyo Bearing Company [1979] ECR 1185, Case 118/77 ISO [1979] ECR 1277, Case 119/77 Nippon Seiko [1979] ECR 1303, Caie 120/77 Koyo Seiko [1979] ECR 1337, Case 121/77 Nachi Fujikoshi [1979] ECR 1363.
(
3
)	Judgment of 14 December 1962 in Joined Cases 16 and 17/62, Confédération Nationale des Producteurs de Fruits et Légumes and Others [1962] ECR 471.
(
4
)	Joined Cases 789 and 790/79 [1980] ECR 1949.
(
5
)	Judgment of 14 December 1962 in the Confédération Case (cited above), at p. 478; judgment of 26 February 1981 in Case 64/80 Giuffrida and Campogrande [1981] ECR 693, at paragraph 3; judgment of 25 March 1982 in Case 45/81 Aíoíje/[1982] ECR 1129, paragraphs 11 and 12.
(
6
)	Judgment of 17 June 1980 in Joined Cases 789 and 790/79 Calpak and Others (cited above), at paragraph 9 of the decision; judgment of 26 February 1981 in Case 64/80 Giuffrida and Campogrande (cited above), at p. 479 (the wording is slightly different).
(
7
)	[1968] ECR409, at p. 415.
(
8
)	Report of 1 September 1981 drawn up on behalf of the Committee on External Economic Relations of the European Parliament on the Community's antidumping activities (Document I-422/81).
(
9
)	Case 101/76 [1977] ECR 797, at p. 804.
(
10
)	Case 72/74 Union Syndicale-Service Public Européen and Othen [1975] ECR 401.
(
11
)	Cf. in particular judgment of 13 May 197! in Joined Cases 41 to 44/70 NV International Fruit Company and Others [1971] ECR 411, at pp. 421 and 422, paragraphs 16 to 21.
(
12
)	Case 113/77 NTN Toyo Bearing Company (cited above), at p. 1205.
(
13
)	Cf. in particular judgment of 15 July 1963 in Case 25/62 Plaumann 6 Co. [1963] UCR 95, at p. 107.