Order of the President of the Court of 18 October 1985. - Tokyo Electric Company Ltd (TEC) and others v Council of the European Communities. - Dumping. - Case 260/85 R.



European Court reports 1985 Page 03467



Parties

Subject of the case

Grounds

Operative part



Keywords

APPLICATION FOR THE ADOPTION OF INTERIM MEASURES - SUSPENSION OF THE OPERATION OF A MEASURE - INTERIM MEASURES - CONDITIONS FOR GRANTING - IRREPARABLE DAMAGE - NONE , OWING TO COMMITMENTS ENTERED INTO BEFORE THE COURT

( EEC TREATY , ARTS 185 AND 186 ; RULES OF PROCEDURE , ART . 83 ( 2 ))

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 .