(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.