Judgment of the Court (Fifth Chamber) of 5 October 1988. - Brother Industries Ltd v Commission of the European Communities. - Imposition of provisional anti-dumping duties on electronic typewriters. - Case 56/85.



European Court reports 1988 Page 05655



Summary

Parties

Grounds

Decision on costs

Operative part



Keywords

++++

Application for a declaration that a measure is void - Action brought against a regulation imposing a provisional anti-dumping duty - Adoption during the proceedings of a regulation ( also challenged ) imposing a definitive anti-dumping duty at a lower rate, which was rendered applicable ab initio - Application devoid of purpose - Decision unnecessary

( EEC Treaty, Art . 173 )

Summary

An application against a regulation imposing a provisional anti-dumping duty becomes devoid of purpose, with the result that the Court no longer has to give a decision upon it, where that regulation is replaced during the proceedings by a regulation - which is also challenged by the applicant - imposing a definitive anti-dumping duty and the definitive rate of duty, which is lower than the rate of the provisional duty, applies to the collection of the amounts secured by the latter .

Parties

In Case 56/85

Brother Industries Ltd, whose registered office is in Nagoya ( Japan ), acting in its own name and on behalf of its subsidiaries in the Community :

Brother International ( Belgium ) SA, Zellik ( Belgium ),

Brother International Maskin A/S, Ishoj ( Denmark ),

Brother International GmbH, Bad Vilbel ( Federal Republic of Germany ),

Brother-Jones SMC Ltd, Manchester ( United Kingdom ),

Brother International Corporation ( Irl .) Ltd, Dublin ( Ireland ),

Brother International ( Nederland ) BV, Badhoevedorp ( Netherlands ), and

Brother France SA, Aulnay-sous-Bois ( France ),

represented by P . Didier, of the Brussels Bar, with an address for service in Luxembourg at the Chambers of L . Mosar, 8 rue Notre-Dame,

applicant,

v

Commission of the European Communities, represented by its Legal Advisers, J . Temple Lang and M.-J . Jonczy, acting as Agents, with an address for service in Luxembourg at the office of Georgios Kremlis, a member of the Commission' s Legal Department, Jean Monnet Building, Kirchberg,

defendant,

APPLICATION for a declaration that Commission Regulation ( EEC ) No 3643/84 of 20 December 1984 imposing a provisional anti-dumping duty on imports of electronic typewriters originating in Japan ( Official Journal 1984, L 335, p . 43 ) is void in so far as it concerns the applicant,

THE COURT ( Fifth Chamber )

composed of : G . Bosco, President of Chamber, J . C . Moitinho de Almeida, U . Everling, Y . Galmot, and R . Joliet, Judges,

Advocate General : Sir Gordon Slynn

Registrar : B . Pastor, Administrator

having regard to the Report for the Hearing and further to the hearing on 22 September 1987,

after hearing the Opinion of the Advocate General delivered at the sitting on 8 March 1988,

gives the following

Judgment

Grounds

1 By application lodged at the Court Registry on 25 February 1985, Brother Industries Ltd ( hereinafter referred to as "Brother "), whose registered office is in Nagoya, Japan, brought an action under the second paragraph of Article 173 of the EEC Treaty for a declaration that Commission Regulation ( EEC ) No 3643/84 of 20 December 1984 ( Official Journal 1984, L 335, p . 43 ) imposing a provisional anti-dumping duty on imports of electronic typewriters originating in Japan was void in so far as it concerned the applicant .

2 Brother is a company whose activities include, amongst other things, the manufacture of electronic typewriters which it sells mainly abroad . In 1984, together with other Japanese manufacturers, it was the subject of a complaint made to the Commission by an association of European manufacturers, the Committee of European Typewriter Manufacturers ( Cetma ), which accused it of selling its products in the Community at dumping prices .

3 The anti-dumping procedure initiated by the Commission on the basis of Council Regulation ( EEC ) No 2176/84 of 23 July 1984 on protection against dumped or subsidized imports from countries not members of the European Economic Community ( Official Journal 1984, L 201, p . 1 ) led to the adoption of Regulation No 3643/84 imposing on Brother a provisional anti-dumping duty of 43.7 %.

4 That regulation, whose substantive provisions were to apply, according to the second paragraph of Article 3 thereof, only for a period of four months unless the Council adopted definitive measures before the expiry of that period, was replaced during these proceedings by Council Regulation ( EEC ) No 1698/85 of 19 June 1985 imposing a definitive anti-dumping duty on imports of electronic typewriters originating in Japan ( Official Journal 1985, L 163, p . 1 ), which entered into force on 23 June 1985 and is contested in a second action which was brought by Brother on 12 August 1985 .

5 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the course of the procedure and the submissions and arguments of the parties .

6 In those circumstances, and in view of the fact that the amounts secured by the provisional anti-dumping duty were collected, pursuant to Article 2 of Regulation No 1698/85, at the rate of duty definitively imposed, which in the case of Brother was lower than the rate set provisionally, it must be held that Brother cannot rely on any legal effect resulting from Regulation No 3643/84 .

7 In the light of the foregoing, the application has become devoid of purpose and it is unnecessary to give a decision upon it .

Decision on costs

Costs

8 Under Article 69 ( 5 ) of the Rules of Procedure, where a case does not proceed to judgment, the costs are in the discretion of the Court . Since Brother has been unsuccessful in its action against Regulation No 1698/85 which replaced Regulation No 3643/84, that action having been dismissed by the Court by judgment delivered today, it must be ordered to bear the costs in this case .

Operative part

On those grounds,

THE COURT ( Fifth Chamber )

hereby :

( 1 ) Declares that it is unnecessary to give a decision on the application .

( 2 ) Orders the applicant to pay the costs .