Order of the President of the Court of 25 June 1987. - Nashua Corporation v Commission of the European Communities. - Dumping - Undertaking - Definitive duty - Plain paper photocopiers originating in Japan. - Case 133/87 R.



European Court reports 1987 Page 02883



Summary

Parties

Grounds

Operative part



Keywords

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APPLICATION FOR INTERIM MEASURES - SUSPENSION OF THE OPERATION OF A MEASURE - REQUEST FOR THE SUSPENSION OF THE OPERATION OF A MEASURE OTHER THAN THE MEASURE CHALLENGED IN THE MAIN PROCEEDINGS, AND EMANATING FROM ANOTHER INSTITUTION - INADMISSIBILITY

( EEC TREATY, ART . 185; RULES OF PROCEDURE, ART . 83*(1 )*)

Summary

IT DOES NOT LIE WITHIN THE JURISDICTION OF THE JUDGE HEARING AN APPLICATION FOR INTERIM MEASURES TO ALLOW A REQUEST FOR THE SUSPENSION OF THE OPERATION OF A COUNCIL REGULATION IMPOSING A DEFINITIVE ANTI-DUMPING DUTY WHEN THE ACTION IN THE MAIN PROCEEDINGS, ON TO WHICH THE REQUEST IS GRAFTED, SEEKS THE ANNULMENT OF THE COMMISSION' S REFUSAL OF A PROPOSED UNDERTAKING ON PRICING . THE TWO MEASURES IN QUESTION ARE DIFFERENT, AS ARE THE TWO INSTITUTIONS FROM WHICH THEY EMANATE .

Parties

IN CASE 133/87*R

NASHUA CORPORATION, A COMPANY INCORPORATED UNDER AMERICAN LAW, REPRESENTED BY M . HUTCHINGS AND J . PHEASANT, SOLICITORS OF MESSRS LOVELL, WHITE AND KING, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF J.-C . WOLTER, 8 RUE ZITHE,

APPLICANT,

V

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,

DEFENDANT,

APPLICATION PRIMARILY FOR THE GRANT OF AN INTERIM MEASURE ORDERING THE SUSPENSION OF THE OPERATION, IN THE APPLICANT' S CASE, OF COUNCIL REGULATION NO 535/87 OF 23 FEBRUARY 1987 IMPOSING A DEFINITIVE ANTI-DUMPING DUTY ON IMPORTS OF PLAIN PAPER PHOTOCOPIERS ORIGINATING IN JAPAN ( OFFICIAL JOURNAL 1987, L 54, P . 12 ), ON CONDITION THAT THE APPLICANT SUPPLIES A BANK GUARANTEE IN PERFORMANCE OF ITS OBLIGATIONS UNDER THAT REGULATION,

THE PRESIDENT OF THE COURT OF JUSTICE

OF THE EUROPEAN COMMUNITIES

MAKES THE FOLLOWING

ORDER

Grounds

1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 27 APRIL 1987, NASHUA CORPORATION ( HEREINAFTER REFERRED TO AS "NASHUA ") BROUGHT AN ACTION UNDER THE SECOND PARAGRAPH OF ARTICLE 173 OF THE EEC TREATY SEEKING THE ANNULMENT OF A COMMISSION DECISION NOTIFIED TO IT ON 27*JANUARY 1987 REJECTING THE UNDERTAKING WHICH NASHUA HAD OFFERED ON 9 DECEMBER 1986 PURSUANT TO ARTICLE 10 OF COUNCIL REGULATION NO 2176/84 OF 23 JULY 1984 ON PROTECTION AGAINST DUMPED OR SUBSIDIZED IMPORTS FROM COUNTRIES NOT MEMBERS OF THE EEC ( OFFICIAL JOURNAL 1984, L*201, P . 1 ), IN THE COURSE OF THE ANTI-DUMPING INVESTIGATION CONCERNING THE IMPORTATION OF PLAIN PAPER PHOTOCOPIERS ORIGINATING IN JAPAN .

2 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 22 MAY 1987, THE APPLICANT, PURSUANT TO ARTICLES 186 OF THE EEC TREATY, 36 OF THE STATUTE OF THE COURT OF JUSTICE AND 83 OF THE RULES OF PROCEDURE, REQUESTED THE COURT TO MAKE THE FOLLOWING INTERIM ORDERS :

FIRST, THE SUSPENSION, WITH IMMEDIATE EFFECT AND PENDING THE DELIVERY BY THE COURT OF ITS JUDGMENT IN THE MAIN PROCEEDINGS, OF THE OBLIGATION IMPOSED BY THE AFORESAID COUNCIL REGULATION ( EEC ) NO 535/87 TO PAY A DEFINITIVE ANTI-DUMPING DUTY ON PHOTOCOPIERS EXPORTED BY NASHUA FROM JAPAN TO THE COMMUNITY (" THE FIRST DECISION "); AND

SECONDLY, THE WITHDRAWAL, IN RESPECT OF THE ENTIRE PERIOD ( AS DEFINED ABOVE ) COVERED BY THE INTERIM MEASURES, OF THE OBLIGATION UNDER THE AFORESAID COUNCIL REGULATION TO PAY ANTI-DUMPING DUTIES ON PHOTOCOPIERS EXPORTED BY NASHUA FROM JAPAN TO THE COMMUNITY, NAMELY BY ORDERING THE ANNULMENT OF THE OBLIGATION IN RESPECT OF THE ENTIRE PERIOD COVERED BY THE INTERIM MEASURES IN THE EVENT THAT, IN THE MAIN PROCEEDINGS, THE COURT SHOULD DECLARE VOID THE COMMISSION' S DECISION TO REJECT THE UNDERTAKING . THE "PERIOD COVERED BY THE INTERIM MEASURES" MEANS THE PERIOD FROM 27*AUGUST 1986 UNTIL THE DATE ON WHICH THE COMMISSION HAS COMPLIED WITH THE ORDERS OF THE COURT IN THE MAIN PROCEEDINGS, OR - SHOULD THE COURT NOT MAKE ANY SUCH ORDER - ON THE DATE OF THE COURT' S JUDGMENT IN THE MAIN PROCEEDINGS (" THE SECOND DECISION ").

THE APPLICANT' S REQUEST FURTHER SEEKS THE GRANT OF ANY OTHER NECESSARY INTERIM MEASURES WHICH MAY BE SUITABLE, AND IN PARTICULAR, PURSUANT TO THE SECOND DECISION, A DECLARATION THAT ALL THE SUMS PAID BY NASHUA BY WAY OF PROVISIONAL OR DEFINITIVE ANTI-DUMPING DUTIES IN COMPLIANCE WITH COUNCIL REGULATION ( EEC ) NO 535/87 DURING THE PERIOD COVERED BY THE INTERIM MEASURES ARE TO BE RETURNED TO IT, AND THE ADOPTION OF ANY OTHER DECISIONS ( ADDRESSED TO ALL AUTHORIZED PERSONS ) WHICH MAY BE NECESSARY TO ENSURE THE EFFICACY OF THAT DECISION .

3 THE DEFENDANT SUBMITTED ITS WRITTEN OBSERVATIONS ON 5 JUNE 1987 . SINCE THE WRITTEN STATEMENTS OF THE PARTIES INCLUDE ALL THE INFORMATION NEEDED TO ENABLE THE COURT TO MAKE AN ORDER ON THE APPLICATION FOR THE ADOPTION OF INTERIM MEASURES, IT HAS NOT APPEARED NECESSARY TO HEAR ORAL ARGUMENTS FROM THE PARTIES .

4 UNDER ARTICLE 185 OF THE EEC TREATY, ACTIONS BROUGHT BEFORE THE COURT OF JUSTICE MAY NOT HAVE SUSPENSORY EFFECT . HOWEVER, THE COURT MAY, IF IT CONSIDERS THAT CIRCUMSTANCES SO REQUIRE, ORDER THAT APPLICATION OF THE CONTESTED ACT BE SUSPENDED . PURSUANT TO ARTICLE 186, IT MAY ALSO PRESCRIBE ANY NECESSARY INTERIM MEASURES .

5 ARTICLE 83*(1 ) OF THE RULES OF PROCEDURE PROVIDES THAT AN APPLICATION TO SUSPEND THE OPERATION OF ANY MEASURE ADOPTED PURSUANT TO ARTICLE 185 OF THE EEC TREATY IS ADMISSIBLE ONLY IF THE APPLICANT IS CHALLENGING THAT MEASURE IN PROCEEDINGS BEFORE THE COURT . UNDER THE SECOND SUBPARAGRAPH OF ARTICLE 83*(1 ), AN APPLICATION SUBMITTED UNDER ARTICLE 186 OF THE TREATY FOR THE ADOPTION OF INTERIM MEASURES IS ADMISSIBLE ONLY IF IT IS MADE BY A PARTY TO A CASE BEFORE THE COURT AND RELATES TO THAT CASE .

6 IN THE WRITTEN OBSERVATIONS WHICH IT SUBMITTED IN CONNECTION WITH THESE INTERLOCUTORY PROCEEDINGS, THE COMMISSION MAINTAINS THAT NASHUA' S APPLICATION FOR INTERIM MEASURES IS INADMISSIBLE ON THE GROUND THAT THE INTERIM MEASURES REQUESTED ARE CONCERNED WITH THE SUSPENSION, IN NASHUA' S CASE, OF THE EFFECTS OF A REGULATION ADOPTED BY THE COUNCIL, AN INSTITUTION WHICH IS NOT A PARTY TO THIS ACTION, AND NOT BY THE COMMISSION - THE SOLE DEFENDANT IN THESE PROCEEDINGS . THE COMMISSION TAKES THE VIEW THAT SUCH A CONCLUSION CANNOT BE DISMISSED MERELY BY CLAIMING - AS THE APPLICANT DOES - THAT THE APPLICATION OF COUNCIL REGULATION NO 535/87 IS THE DIRECT CONSEQUENCE OF THE COMMISSION' S DECISION REJECTING THE UNDERTAKING OFFERED BY NASHUA .

7 WHILST IT LIES WITHIN THE JURISDICTION OF THE JUDGE HEARING AN APPLICATION FOR INTERIM MEASURES TO ORDER THE SUSPENSION OF THE OPERATION OF AN ACT OTHER THAN THE ACT CHALLENGED IN THE MAIN PROCEEDINGS ( SEE IN PARTICULAR THE ORDER OF THE PRESIDENT OF THE COURT OF 8 APRIL 1965 IN CASE 18/65*R GUTMANN V COMMISSION (( 1966 )) ECR 135 ), IT IS NONE THE LESS APPARENT FROM THE VERY ESSENCE OF PROCEEDINGS FOR INTERIM MEASURES THAT SUCH JURISDICTION MAY NOT AS A MATTER OF PRINCIPLE BE EXERCISED UNLESS BOTH THE ACTS IN QUESTION EMANATE FROM ONE AND THE SAME INSTITUTION AND THAT INSTITUTION IS A PARTY TO THE PROCEEDINGS .

8 IN THIS CASE THE DECISION UNDER CHALLENGE IN THE MAIN PROCEEDINGS WAS ADOPTED BY THE COMMISSION, WHEREAS THE REGULATION ESTABLISHING DEFINITIVE ANTI-DUMPING DUTIES, THE OPERATION OF WHICH THE APPLICANT WISHES TO HAVE SUSPENDED BY WAY OF AN INTERIM MEASURE, IS THE ACT OF THE COUNCIL . IT FOLLOWS THAT THE JUDGE HEARING THE INTERLOCUTORY PROCEEDINGS IS NOT EMPOWERED TO ALLOW SUCH AN APPLICATION FOR AN INTERIM MEASURE, SINCE TO DO SO WOULD HAVE THE EFFECT OF SUSPENDING AN ACT OF A LEGISLATIVE NATURE, EMANATING FROM AN INSTITUTION WHICH IS NOT A PARTY TO THE PROCEEDINGS .

9 IT SHOULD ALSO BE BORNE IN MIND THAT, AS IS CLEARLY DEMONSTRATED BY THE ORDER OF THE PRESIDENT OF THE COURT OF 17 DECEMBER 1986 IN CASE 294/86*R TECHNOINTORG V COMMISSION (( 1986 )) ECR 3979 ), IT IS ALWAYS OPEN TO THE APPLICANT TO MAKE A VALID APPLICATION FOR THE ADOPTION OF THE INTERIM MEASURES WHICH IT HAS REQUESTED IN THIS CASE IN INTERLOCUTORY PROCEEDINGS BASED ON AN ACTION FOR A DECLARATION THAT COUNCIL REGULATION NO 535/87 IMPOSING A DEFINITIVE ANTI-DUMPING DUTY ON IMPORTS OF PLAIN PAPER PHOTCOPIERS ORIGINATING IN JAPAN IS VOID .

Operative part

On those grounds,

THE PRESIDENT,

by way of interim decision,

hereby orders as follows :

( 1 ) The application is dismissed as inadmissible;

( 2 ) The applicant is ordered to pay the costs .

Luxembourg, 25 June 1987 .