Keywords

Summary



Keywords

1. Actions for annulment ° Locus standi ° Legal persons ° Definition ° Possession of legal personality under national law or recognized by the Community institutions as an independent legal entity

(EEC Treaty, Art. 173; Rules of Procedure of the Court of Justice, Art. 38(5)(a); Rules of Procedure of the Court of First Instance, Art. 44(5)(a))

2. Actions for annulment ° Natural or legal persons ° Measures of direct and individual concern to them ° Regulation imposing an anti-dumping duty ° Export undertaking of a non-member country subject to investigation and the only undertaking to participate therein

(EEC Treaty, Art. 173, second para.)

3. Common commercial policy ° Protection against dumping ° Dumping margin ° Determination of the export price ° Calculation on the basis of the information available ° Use, owing to a lack of other truly reliable information, solely of the information given in the originating complaint ° Whether permissible

(Council Regulation No 2423/88, Arts 2(8)(a) and 7(7)(b))

4. Community law ° Principles ° Rights of the defence ° Observance of those rights in administrative procedures ° Anti-dumping ° Duty of the institutions to accede to requests for information from undertakings under investigation ° Limits ° Request out of time

(Council Regulations No 2423/88, Art. 7(4)(c)(i)(cc), and No 2833/91, Art. 3)

5. Common commercial policy ° Protection against dumping ° Injury ° Community industry concerned ° Definition ° Determination of injury in respect solely of the complainant Community undertaking ° Permissible where an undertaking accounts for over 25% of Community output

(Council Regulation No 2423/88, Art. 4(1))

Summary

1. The admissibility of an action for annulment brought by an entity under Article 173 of the EEC Treaty depends primarily on the legal personality of the applicant. Under the Community judicial system, an applicant is a legal person if, at the latest by the expiry of the period prescribed for bringing proceedings, it has acquired legal personality in accordance with the law governing its constitution or if it has been treated as an independent legal entity by the Community institutions.

In that regard, Article 38(5)(a) of the Rules of Procedure of the Court of Justice and Article 44(5)(a) of the Rules of Procedure of the Court of First Instance provide that, where the applicant is a legal person governed by private law, its application must be accompanied by the instrument(s) constituting or regulating that legal person or a recent extract from the register of companies, firms or associations or any other proof of its existence in law. For the purposes of those provisions, a licence attesting to the applicant' s registration as an undertaking with its own capital and an independent accounting system constitutes proof of its existence in law.

In any event, it cannot be denied that a legal person is an independent legal entity where it has been treated as such by the Community institutions during the administrative procedure prior to adoption of the contested act.

2. Although, in the light of the criteria set out in the second paragraph of Article 173 of the EEC Treaty, regulations imposing anti-dumping duties are indeed, as regards their nature and their scope, of a legislative character in that they apply to all the traders concerned taken as a whole, their provisions may none the less be of individual concern to certain traders.

Thus, measures imposing anti-dumping duties may be of direct and individual concern to importers and exporters who are able to establish that they were identified in the measures adopted by the Commission or the Council or were concerned by the preliminary investigations and, more generally, to any trader who can establish the existence of certain attributes which are peculiar to him and which, as regards the measure in question, differentiate him from all other traders.

That is the position where an undertaking has been deeply involved in the preliminary investigation and examined by the Commission in the course of the proceeding which led to the imposition of the anti-dumping duty, even where it was ultimately decided not to accept the information provided by the applicant with regard to the central points at issue. Furthermore, the fact that the applicant may be the only undertaking in its home country to have participated in the investigation constitutes a factor of a kind which differentiates it, as regards the measure in which the investigation culminated, from all other traders.

3. The Community institutions are entitled to decide to apply, for determination of the export price, Article 7(7)(b) of Regulation No 2423/88, the basic anti-dumping regulation, and to found their assessments solely on data provided by the complainant undertaking, which they may regard as the only truly reliable data, where the information provided by the only export undertaking of the non-member country subject to investigation to have agreed to cooperate in that investigation does not appear to be representative and where the use of information from other sources, such as customs statistics and information provided by undertakings engaged in reselling the product in question on the Community market, does not seem likely to lead to reliable assessments.

4. In the course of an administrative procedure, such as that preceding the imposition of anti-dumping duties, proper regard is shown for the rights of the defence if the undertaking concerned is afforded the opportunity during the administrative procedure to make known its views on the truth and relevance of the facts and circumstances alleged and its observations on any documents used. In this connection, an undertaking cannot complain that Article 7(4)(c) of Regulation No 2423/88 has been infringed where that undertaking has been invited to make known its views in writing and request a hearing, and where its request for information on the calculation of the provisional dumping margin was not submitted until after the expiry of the period laid down in Article 3 of the provisional regulation, No 2833/91, for submitting observations and in Article 7(4)(c)(i)(cc) of the basic regulation, No 2423/88, for submitting requests for information.

5. The Community institutions cannot be criticized for having imposed anti-dumping duties in relation to the injury suffered by the Community industry as determined in respect of the complainant Community undertaking alone, since the latter' s production during the period covered by the investigation accounted for 35% of the total Community output of the product in question.

The term "Community industry" in Article 4(1) of Regulation No 2423/88 is defined in Article 4(5) thereof as referring to the Community producers as a whole or to those of them whose collective output constitutes a major proportion of the total Community production, which proportion is to be interpreted not as 50% or more, but rather as 25% or more.