3.3.

The most important submissions of the applicants are concerned with certain new facts to which they refer and which supposedly throw new light on the alleged injury. Those facts are as follows : (a) three decisions published on 12 December 1981 by the French Minister for Economic Affairs and Finance against restrictive agreements in the production and marketing of chemical fertilizer. The requests submitted by the applicants, on 1 February 1982, 22 February 1982 and 24 March 1982 which were based on those decisions and in which they sought a review of the anti-dumping measures adopted were rejected on 22 March 1982 by the Commission in a letter to Demufert SA and also in a subsequent letter (see the application and the corresponding annex thereto in Case 239/82); (b) the substantial rise in the value of the dollar since the initiation of the antidumping proceeding on 26 February 1980; (c) the substantial decline in Community imports of the chemical fertilizer in question (the market share of such imports fell from 50 % in 1979/80 to 28.5 % in 1981/82); (d) the new fact referred to by the applicants in their reply, namely the measures oh prices adopted on 14 June 1982 by the French Minister for Economic Affairs and Finance. As a result of the adoption of those measures, the applicants prices in the second half of 1982 were higher than the price level of French chemical fertilizer. As regards the first new fact, referred to under (a), however, the Commission has already pointed out in its defence that the measures which it adopted were based on its own market surveys conducted in a period coinciding with, or even following, the period to which the French decisions against the restrictive agreements related. Moreover, the applicants have failed to demonstrate, in the Commission's view, that the decisions in question also applied to urea ammonium nitrate solution fertilizer which is at issue in this case. That submission of course raises the question whether the Commission does not itself doubt whether the French chemical fertilizer producers do in fact manufacture that specific product which forms the subject-matter of the anti-dumping measures. I also have misgivings as regards the Commission's reply to Demufert SA of 22 March 1982 to the effect that, in the absence of the restrictive agreements referred to, the prices charged by the French fertilizer industry, which were already too low, would have been even lower and consequently the losses incurred by the fertilizer industry would have been even greater (see Annex 7 to the application in Case 239/82, which is referred to on page 6 of the Commission's defence). I doubt whether it is compatible with the purpose of the GATT Code and the basic regulation to establish a link between the extent of the injury and a level of prices in the importing country, which is artificially high as a result of restrictive agreements. As far as the second new fact, referred to under (b), is concerned, the Commission rightly points out in the first place that export prices were expressed in dollars and that consequently the increase in the value of the dollar had no effect on the dumping margin established. As regards the relevance of the increase in the value of the dollar in relation to the requirement as to the existence of injury, the Commission observes in its rejoinder that, in spite of that increase, imports of the chemical fertilizer in question from the United States rose by a further 60 % in the first four months of 1982. In reply to a question put to it by the Court, the Commission added during the oral procedure that the increase in the value of the currency of an exporting country can in principle be relevant only if the increase is very substantial, if it has not been interrupted for a sufficient length of time by an intervening depreciation and if it has had a serious impact on the injury sustained by Community producers. As far as the injury is concerned, the Commission claims to have established from the outset that the average import prices of the American chemical fertilizer at issue, in spite of the increase in the value of the dollar, were approximately 10 % lower than the selling prices of the four largest fertilizer producers in France. The Commission also claims to have found that imports of the fertilizer in question originating in the United States, after declining in 1981, rose in the first months of 1982 by over 60 % in comparison with the corresponding period in 1981. Similarly, according to the Commission, in the Federal Republic of Germany there was a substantial growth in the imports in question from the United States in the period between June 1981 and May 1982 following an initial decline. Those counter-arguments put forward by the Commission also contain the Commission's view as regards the third new fact relied upon by the applicants, and referred to under (c), namely the alleged decline in imports. As far as the fourth, new fact referred to under (d) is concerned, namely the price-freezing measures which were adopted on 14 June 1982, the Commission observes in its rejoinder that, at the time of the application of the provisional measures, the price-freezing measures could not yet have had an impact on the level of prices of French chemical fertilizer. I will not deny that the Commission's argument calls for a number of marginal comments and gives rise to a number of queries. The most important marginal comment is that it may appear from the statistics produced by the applicants at the hearing, after they have been checked to ascertain whether they are correct, that the injury established by the Commission which was caused to French producers in 1982 and also in 1983 is attributable to a far greater extent to imports from the Netherlands than to imports from the United States. This raises certain questions concerning the second sentence of Article 4 (1) of Regulation No 3017/79. It is also questionable whether the Commission was right to focus its investigation concerning the “injury to an established Community industry” on the injury caused to French producers, since it might perhaps be inferred from those statistics (and also from part of the Commission's defence) that during the period in question Netherlands producers held a larger share of the French market in urea ammonium nitrate solution (UAN) than French producers. In my view, however, those queries and marginal comments are not of decisive significance in the present proceedings. Provisional duties may generally be imposed under Article 11 of the basic regulation even on the basis of a provisional investigation and in that connection the Commission in general already enjoys a wide discretionary power. Where an undertaking has been withdrawn, within the meaning of Article 10 (6) of Regulation No 3017/79, by the contracting parties, the Commission's discretionary power becomes even wider in scope. By virtue of the second sentence of Article 10 (6) the Commission may, where the interests of the Community so require, immediately apply provisional measures, where on the basis of the information available, it comes to the conclusion that such provisional measures are warranted (that is to say, in my view, where the three conditions laid down in the first sentence of Article 11 (1) for the imposition of provisional measures are satisfied). In any event, it is clear from the Commision's arguments in defence that it has taken account of the new facts put forward by the applicants. The Commission has also convincingly demonstrated, in my view, that in connection with its discretionary power in relation to the adoption of provisional measures on the basis of Article 10 (6) of the regulation, it was under no obligation to attach any decisive significance to those new facts by comparison with the information from other sources which was available to it at the time. As the applicants have themselves acknowledged and as is clear from the correspondence produced after the hearing, they did not accede to the Commission's request for further evidence of those new facts. In my view, the Commission was entitled to consider, in the context of the discretion vested in it, that where an undertaking had been withdrawn in circumstances of that kind, the interests of the Community called for the immediate application of provisional measures in order to avoid a legal vacuum. I am therefore of the opinion that the applications for a declaration that the regulations contested by the applicants are void must be dismissed.