Opinion of Mr Advocate General Lenz delivered on 14 April 1994. - AC-ATEL Electronics Vertriebs GmbH v Hauptzollamt München-Mitte. - Reference for a preliminary ruling: Finanzgericht München - Germany. - Reference for a preliminary ruling - Assessment of the validity of a measure - Anti-dumping duty - Regulation - Corrigendum - Scope. - Case C-30/93.



European Court reports 1994 Page I-02305



Opinion of the Advocate-General

++++

Mr President,

Members of the Court,

A ° Introduction

1. This reference for a preliminary ruling from the Finanzgericht (Finance Court) Munich concerns a Commission regulation imposing a provisional anti-dumping duty on imports of certain electronic microcircuits. The Finanzgericht doubts the validity of the regulation, as amended by a corrigendum published in the Official Journal after the regulation was issued, on the ground that the corrigendum may have altered the material scope of the original text. The question referred for a preliminary ruling is set in the context of a dispute between an importer ("the plaintiff") and the Hauptzollamt (Principal Customs Office) Muenchen-Mitte (hereinafter "the Hauptzollamt"), concerning the collection of the security lodged by the plaintiff in respect of the provisional duty.

2. The DRAMs (dynamic random access memories) contemplated by the disputed Commission Regulation (EEC) No 165/90 of 23 January 1990 (1) are monolithic integrated circuits with thousands of memory cells, each of which can be accessed individually (random access). The information contained in the memory cells needs to be regenerated after a certain period to prevent it being lost. This regeneration cycle makes the memory "dynamic". (2) Recital (15) of the disputed regulation draws a distinction between finished DRAMs on the one hand and DRAMs in the form of wafers and chips on the other.

3. As appears from the facts stated in the order for reference, these proceedings concern the importation of finished DRAMs. The Finanzgericht states, referring to the Combined Nomenclature, that "the integrated circuits imported by the plaintiff indisputably fall within CN code 8542 11 43". (3) Under Commission Regulation (EEC) No 2886/89, (4) the version of the Combined Nomenclature current when the goods were imported on 5 April 1990 placed wafers under CN code 8542 11 10 and chips under CN code 8542 11 30, whilst CN code 8542 11 43 covered "Dynamic random-access memories (D-RAMs) with a storage capacity exceeding 256 Kbits but not exceeding 4 Mbits".

4. The numbering of the tariff classification for goods of the type in question had changed shortly before disputed regulation in question was issued. In the version of the Combined Nomenclature under Commission Regulation (EEC) No 3174/88, (5) they had been classified since 1 January 1989 under CN code 8542 11 71 with the heading "Memories" (that expression being qualified by reference to the terms and descriptions for the previous numbers). By contrast, the version of the Combined Nomenclature under Regulation No 2886/89, applicable from 1 January 1990, places finished DRAMs under three separate numbers, according to storage capacity. Those numbers are CN codes 8542 11 41 and 8542 11 45, and also CN code 8542 11 43, referred to above, which covered the goods imported by the plaintiff. The latter version of the Combined Nomenclature also refers to one (and only one) further type of "random access memory" namely the "static" type. Those memories are likewise classified into various subheadings according to storage capacity. Finally, this version of the Combined Nomenclature no longer contains CN code 8542 11 71.

5. The text of Regulation No 165/90, at issue in this case, as originally published in the Official Journal, still referred to the numbering under Regulation No 3174/88. Recital (2) of the former regulation stated:

"As from 1 January 1989, DRAMs fall within CN codes ex 8542 11 10, ex 8542 11 30 and ex 8542 11 71." (6)

6. Similarly, recital (15) states:

"Finished DRAMs fall within CN code ex 8542 11 71, wafers fall within CN code ex 8542 11 10; dice fall within CN code ex 8542 11 30 (chips)." (7)

7. Finally, Article 1 of the regulation reads as follows:

"1. A provisional anti-dumping duty is hereby imposed on imports of certain types of microcircuits known as DRAMs (dynamic random access memories) falling within CN codes ex 8473 30 00, ex 8542 11 10, ex 8542 11 71 or ex 8548 00 00 ... originating in Japan.

2. For the purpose of this Regulation, DRAMs comprise all types and densities including unfinished forms such as wafers and dice (mounted or unmounted) and multi-combinational forms such as 'stack DRAMs' and 'modules' ." (8)

8. It was in relation to the latter regulation that the corrigendum referred to at the beginning of my Opinion was published in the Official Journal of the European Communities on 10 February 1990. (9) It takes account of the CN code changes which took effect on 1 January 1990, so that in recital (2) of the regulation at issue (10) the date "1 January 1989" is replaced by "1 January 1990" and the subheading ex 8542 11 71 is replaced by the subheadings 8542 11 41, 8542 11 43 and 8542 11 45. (11) The code numbers in recital (15) (12) and Article 1(1) of the regulation (13) were changed in the same way.

9. After first extending the period of validity of the provisional anti-dumping duty, (14) the Council imposed a definitive anti-dumping duty on 23 July 1990, with definitive collection of the provisional duties, by issuing Regulation No 2112/90. (15) The CN numbers given in the latter regulation correspond to those in Regulation No 165/90 in its corrected version.

10. The importation by the plaintiff, which is the subject-matter of the dispute in the main proceedings, took place after the corrigendum but before Regulation No 2112/90 was issued. On 5 April 1990, the plaintiff presented goods of the type in question, manufactured by a Japanese company, for customs clearance and release into free circulation. As appears from the order for reference, it declared the goods as "dynamic random access memories ..." under code number 8542 11 43 0020.

11. By way of further background information, the Finanzgericht also states that, when the goods were declared, the customs office retained DM 20 659.12 as security for the provisional anti-dumping duty. When the plaintiff objected, the Hauptzollamt pointed out that the Commission, upon enquiry from the Federal Minister of Finance, had stated that the goods in dispute fell under Regulation No 165/90, because only Video-RAMs (VRAMs) were exempt on the basis of a static-RAM (SRAM) cell structure.

12. On 30 April 1991, the Hauptzollamt issued the contested notice of amended taxation, on the basis of Regulation No 2112/90. According to the figures supplied by the Finanzgericht, a definitive anti-dumping duty of DM 20 659.12 was determined for the imported goods and set off against the security lodged.

13. Having unsuccessfully objected to that notice of amended taxation, the plaintiff initiated the main proceedings before the Finanzgericht. It referred to recital (35) of Regulation No 165/90, which states, under the heading Video RAMs:

"One exporter argued that video RAMs (VRAMs) have technical specifications different to DRAMs and should therefore be excluded from the scope of the like product definition.

The Commission notes that certain DRAMs may be used for certain video applications whereas VRAMs are technically different products.

The Commission therefore determines that VRAMs proper are not to be regarded as like products whereas DRAMs used for video applications are like products."

14. The plaintiff has argued that according to that passage VRAMs should not be regarded as like products. It ordered the goods in Hong Kong and imported them on that basis. Council Regulation No 2112/90 confirms that video RAMs are not to be regarded as like products.

15. The relevant passage of Regulation No 2112/90 (recital (7), final indent and final paragraph) reads as follows:

"The Commission determined in its preliminary findings that ... video RAMs (VRAMs), which are not based on DRAM technology but on other technologies such as static RAM (SRAM) technology, are not to be regarded as like products, but products which are used in video applications which are based on DRAM technology are like products.

Given that no new arguments were raised in this respect, the Council confirms these determinations."

16. The Finanzgericht did not adopt a position on the plaintiff' s argument. It was more concerned to state that Regulation No 165/90, prior to the corrigendum, did not yet cover goods under CN code 8542 11 43, and thus did not cover the goods imported by the plaintiff. Since Regulation No 2112/90, which referred to that code number, could not have produced legal effects until 23 July 1990, the Hauptzollamt had no legal justification for imposing anti-dumping duty on the goods imported by the plaintiff as early as April 1990.

17. In the opinion of the Hauptzollamt Regulation No 165/90 was in any case effectively amended by the corrigendum of 10 February 1990, referred to above, so that the collection of provisional duty on goods falling under code number 8542 11 43 was justified even from that stage.

18. The Finanzgericht doubts, however, whether a Community regulation may be amended by a simple "corrigendum" of that kind. It is not apparent from the published version of that corrigendum on what legal measure it is based. Moreover, in the absence of any precise indication, there is much to suggest that the document does not constitute a legal measure for the purposes of Article 189 of the Treaty. Furthermore, the manner of publication of the corrigendum runs counter to the practice of the institutions of specifying the place and date of the measure, having it signed by the the Commissioner concerned and inserting in it a concluding provision. Finally, the "corrigendum" does not merely rectify clerical and translation errors, as is apparent from the extension of the category of products to the imported articles, but also makes substantive changes to Regulation No 165/90.

19. In the opinion of the Finanzgericht an amending regulation was needed in order to alter the substance of Regulation No 165/90 to such an extent.

20. The Finanzgericht has therefore referred to the Court the following question for a preliminary ruling:

Is Commission Regulation (EEC) No 165/90 of 23 January 1990 imposing a provisional anti-dumping duty on imports of certain types of electronic microcircuits known as DRAMs (dynamic random access memories), as amended by the corrigendum of 10 February 1990, valid?

21. In the written procedure before the Court only the Commission has made its views known. In its opinion, the question must be answered in the affirmative. The absence of code number 8542 11 43 in the original text is a typical example of a "falsa demonstratio" which could be clarified by a simple corrigendum without formal amendment. The relevant goods are correctly and adequately described in Article 1(2) and recital (15) (16) of Regulation No 165/90, as they were in Regulation No 2112/90. A provisional anti-dumping duty was therefore to be levied in accordance with Regulation No 165/90 (in its original version), even without regard to the aforesaid code numbers.

22. The Commission goes on to state that the inaccuracy of the code numbers originally given was also obvious. Anyone applying the law, and who had examined the Combined Nomenclature in the (applicable) version in Regulation No 2886/89, would have noticed it. In that regulation there was no longer any code number "ex 8542 11 71", (17) whilst the following code number 8542 11 72 concerned a completely different product. By contrast, the goods in question in the version of the Combined Nomenclature (at the time no longer applicable) in Regulation No 3174/88 were in fact classified under the code number given in Regulation No 165/90.

23. The plaintiff gave its views only at the hearing. In its view, the answer to the question referred to the Court should be that Video-RAMs under code number 8542 11 43 are not covered by Regulation No 165/90. Whilst Video-RAMs fall within the abstract definition of DRAMs given in Regulation No 165/90, they are expressly described in recital (35) as not being like products and therefore exempted from provisional duty. The plaintiff appears to assume that this advantage was withdrawn from traders by the alteration of the code numbers, and argues that such a change could not be made by a simple corrigendum that was not in the nature of a regulation. In answer to a question put by the Court, the plaintiff explained, through its managing director, the difference, in its view, between DRAMs and Video-RAMs. A Video-RAM was a "DRAM combined with a SRAM" (18) Video-RAMs were primarily used in the area of image processing and graphics, where rapid access was the most important factor. DRAMs could not achieve that, and were also unable to store data without regeneration. They were used primarily in cases where a background store was required, as for example in the area of personal computers. The plaintiff also argued that, contrary to recital (7) of Regulation No 2112/90, there are no such things as VRAMs on a static RAM basis, and that such VRAMs are not even technically feasible.

24. The plaintiff did not expressly describe the technical specifications of the imported goods, but stated that it declared those goods not as DRAMs but as Video-RAMs.

25. In response to those submissions the Commission maintained that the plaintiff had put facts before the Court that differed from those stated in the order for reference, which was not permissible in proceedings under Article 177 of the Treaty. For the rest, the Commission essentially adhered to its arguments in the written proceedure. It added that, even if the wording in recital (35) was somewhat imprecise, it did nevertheless indicate that Video-RAMs based on DRAM technology were caught by the provisional duty.

B ° Analysis

The arguments put forward by the plaintiff at the hearing and the scope of the question referred for a preliminary ruling

26. Since the Commission argued at the hearing that the arguments put forward by the plaintiff at the hearing could not be taken into account in these proceedings, I must first examine the case-law on the relationship between preliminary references and observations submitted pursuant to Article 20 of the Protocol on the Statute of the Court of Justice of the EEC.

27. It is clear from the case-law that Article 177 of the Treaty provides for direct cooperation between the Court of Justice and the courts and tribunals of the Member States by way of a non-contentious procedure excluding any initiative of the parties, who are merely invited to be heard in the course of that procedure. (19) This has two consequences. First, if it was the discernible intention of the national court to refrain from raising a particular legal question, it is not open to the Court of Justice to disregard that choice and examine the question anyway. (20) Secondly, the Court of Justice cannot take into consideration factual information supplied by the parties that does not disclose a sufficient connection with the situation put before it by the referring court, particularly if that information is imprecise. (21) Still less can such information be considered if it diverges from the account of the facts given by the referring court. (22)

28. If the present case is examined in the light of those principles, it can be seen at once that the Finanzgericht did not supply any particulars about the imported goods that would permit the conclusion that they were anything other than DRAMs or DRAMs with particular technical specifications. Whilst it set out the plaintiff' s argument to the effect that the imported goods were "Video-RAMs", it did not make that argument its own. On the contrary, it was content to note that the imported goods "indisputably" were to be classified under code number 8542 11 43. It then developed its argument, which underlies the question submitted for a preliminary ruling, quite independently of the plaintiff' s argument on the question of Video-RAMs. (23)

29. For the purposes of these proceedings, I must therefore assume that the imported goods were DRAMs with no particular specifications, which, under the nomenclature applicable from 1 January 1990, were to be classified under code number 8542 11 43. That is so a fortiori because, as I have already said, the plaintiff put forward general explanations at the hearing about the difference between DRAMs and Video-RAMs, but without clearly stating its views concerning the (alleged) particularities of the goods that it had imported.

30. Moreover, I do not think there can be any question in these proceedings of taking into consideration the particulars given by the plaintiff about the customs declaration, which diverge from the findings of the Finanzgericht. It must therefore be assumed that the plaintiff declared "DRAMs" falling under code number 8542 11 43, and not "special" DRAMs or anything else.

31. Following on from these considerations, it now falls to be determined what is the substance of the question (which, once posed, can no longer, as we have seen, be influenced by the plaintiff) on which a preliminary reply is sought. In this question the Finanzgericht asks for information on the point whether, in a case like the present one, doubt may be cast on the validity of a rectified regulation because, by means of the corrigendum, new code numbers, corresponding to the Combined Nomenclature in force since the issue of the regulation, were inserted into the provisions on the scope of the regulation in place of a code number corresponding to a nomenclature no longer in force. The context of that question is characterized by the fact that

° the definition of the goods covered by the regulation has not been altered, and

° the scope of the regulation by reference to the new code numbers is no different from that which would have resulted from reference to the numbers under the previous nomenclature, had it still been in force when the regulation was issued.

The answer to the question referred to the Court

32. As so defined, the question raises the problem of how to interpret an anti-dumping regulation in which the definition of the goods in question covers a particular product which, however, is not covered by the code numbers given in the operative part of the regulation because the numbers are taken from a nomenclature that is no longer valid. If the regulation (before rectification) could be interpreted to the effect that it was applicable to the goods in question notwithstanding the inaccuracy referred to above, then the corrigendum could not alter the content of the regulation but only make its content (which was correct) clearer. In such a case, I consider that it would be excessively formalistic to require the standard form of amendment of a legal measure and, consequently, compliance with all the formal and procedural requirements to be respected.

33. I share the Commission' s view that the regulation was to be interpreted in the sense given above before it was corrected. The Court has consistently held that, in interpreting a provision of Community law, not only its wording, but also its context and the aims pursued by the legislation of which it forms part, must be considered. (24) Recourse to literal interpretation of a provision is particularly inappropriate where there is no clearly formulated legislative text. (25)

34. In that respect, it must first be borne in mind that there is nothing in Regulation No 165/90 to suggest that the code numbers given in Article 1(1) were to take priority over other parts of the text in determining the scope of the regulation. (26) It is significant that the original version of the disputed regulation always referred to code number "ex 8542 11 71". As is known, the prefix "ex", which was also attached to all the other code numbers in the original version of the regulation, means that not all the goods corresponding to the code number in question were to be covered by the regulation, but only those corresponding to the definition given in the regulation. Thus, as regards the definition of its scope, this regulation attributes decisive significance to the definition rather than to the code numbers.

35. Secondly, Article 1(2) of the regulation at issue makes clear the Commission' s intention that DRAMs of "all types and densities" should be subject to the provisional anti-dumping duty. The preamble to the regulation gives an exhaustive definition of those products. (27) Moreover, the Commission dealt in the preamble with the various objections put forward as grounds for asserting that some DRAMs should not be regarded as like products, and rejected all of them. (28)

36. Finally, I repeat an argument already put forward by the Commission. The reference to code number 8542 11 71, which was nugatory in the context of the new nomenclature, corresponded under the previous nomenclature to the relevant group of goods. I would add that reference back to the previous nomenclature is also suggested by the text of Regulation No 165/90. As already mentioned, the original text provides in recital (15) that finished DRAMs fall under "CN code ex 8542 11 71", and that they do so, moreover, as recital (2) expressly states, "as from 1 January 1989". That is precisely the date of the entry into force of Regulation No 3174/88 which introduced that version of the Combined Nomenclature (which itself gave way to the new version referred to above on 1 January 1990, shortly before Regulation No 165/90 was issued (29)).

37. In those circumstances the absence of code number 8542 11 43 in Article 1(1) of Regulation No 165/90 was not to be understood as meaning that the goods which under the new nomenclature were to be classified under that number were to be exempted from the provisional duty. The corrigendum of 10 February 1990 did not, therefore, alter the content of the original text and could not render the regulation in question invalid.

38. Before I formulate my proposal on that basis, I would like to comment on the Commission' s argument that the oversight in the original version of the regulation was "obvious". That, in my opinion, is not the point. The sole decisive factor is that the true meaning of the text in question could, notwithstanding the oversight, be clearly established by interpretation.

39. In that regard, the degree of the difficulties that an average trader would have to overcome in order to discover the true meaning of the text is not a relevant consideration. That aspect might, at most, be of relevance in proceedings inter partes on the apportionment of liability for losses which individuals may have suffered as a result of the incorrect references in the original version of the regulation.

C ° Conclusion

40. I therefore propose that the Court give the following answer to the question submitted by the Finanzgericht Munich:

Consideration of the question referred to the Court for a preliminary ruling has not disclosed any factor of such a kind as to affect the validity of Commission Regulation No 165/90, as amended by the corrigendum of 10 February 1990.

(*) Original language: German.

(1) ° Commission Regulation (EEC) No 165/90 of 23 January 1990 imposing a provisional anti-dumping duty on imports of certain types of electronic microcircuits known as DRAMs (dynamic random access memories) originating in Japan, accepting undertakings offered by certain exporters in connection with the anti-dumping proceeding concerning imports of these products and terminating the investigation in their respect (OJ 1990 L 20, p. 5).

(2) ° See the definition given in the footnote to recital (15) of Regulation No 165/90.

(3) ° In the third paragraph of section II of the order for reference, italics in the original.

(4) ° OJ 1989 L 282, p. 1.

(5) ° OJ 1988 L 298, p. 1.

(6) ° My italics.

(7) ° My italics.

(8) ° My italics.

(9) ° OJ 1990 L 38, p. 44.

(10) ° See paragraph 5 above.

(11) ° See paragraph 4 above.

(12) ° See paragraph 6 above.

(13) ° See paragraph 7 above.

(14) ° Council Regulation (EEC) No 1361/90 (OJ 1990 L 131, p. 6).

(15) ° Council Regulation (EEC) No 2112/90 of 23 July 1990, imposing a definitive anti-dumping duty on imports of certain types of electronic microcircuits known as DRAMs (dynamic random access memories) originating in Japan and collecting definitively the provisional duty (OJ 1990 L 193, p. 1).

(16) ° See paragraphs 2 and 7 above.

(17) ° See paragraph 4 above.

(18) ° A SRAM is a static random access memory; see paragraph 15 above.

(19) ° See the judgment in Case C-364/92 SAT Fluggesellschaft v Eurocontrol [1994] ECR I-43, paragraph 9, and the judgment in Case 44/65 Hessische Knappschaft v Singer [1965] ECR 965, at p. 970.

(20) ° See the judgment in Case 247/86 Alsatel v Novasam [1988] ECR 5987, paragraph 8.

(21) ° See the judgment in Alsatel v Novasam, referred to in the preceding footnote, paragraph 22.

(22) ° See the judgment in Case 17/81 Pabst & Richarz v Hauptzollamt Oldenburg [1982] ECR 1331, paragraphs 11 and 12.

(23) ° See paragraphs 16 and 19 above.

(24) ° For an example of this concerning an anti-dumping regulation, see the judgment in Case C-136/91 Findling Waelzlager v Hauptzollamt Karlsruhe [1993] ECR I-1793, paragraph 11, and the references therein.

(25) ° See paragraph 14 of the judgment in Findling Waelzlager and, commenting on that judgment, the Opinion of Advocate General Van Gerven in Case C-304/92 Lloyd-Textil v Hauptzollamt Bremen-Freihafen [1993] ECR I-7007, paragraph 10.

(26) ° For an example of a case of that kind, see the judgment in Lloyd-Textil v Hauptzollamt Bremen-Freihafen [1993] ECR I-7007, especially paragraphs 12 and 13.

(27) ° See paragraph 2 and footnote 2 above.

(28) ° See recitals (17) to (35) of the regulation at issue.

(29) ° See paragraph 4 above.