Keywords

Summary



Keywords

1. Appeals - Pleas in law - Admissibility - Conditions - Plea not referring to all the reasons of the Court of First Instance - No effect

(EC Statute of the Court of Justice, Art. 51, first para.; Rules of Procedure of the Court of Justice, Art. 112(1))

2. Appeals - Pleas in law - Plea put forward for the first time at the stage of the appeal - Inadmissibility

(EC Statute of the Court of Justice, Art. 51)

3. Actions for annulment - Judgment annulling a measure - Effects - Obligation to adopt measures to comply with the judgment - Scope - Annulment of a regulation adopting anti-dumping duties - Resumption of the investigation - Reference period

(EC Treaty, Arts 174 and 176 (now Arts 231 EC and 233 EC); Council Regulation No 2423/88, Arts 7(1)(c) and 13)

4. Community law - Principles - Rights of the defence - To be observed in administrative procedures

Summary

1. It is clear from the first paragraph of Article 51 of the Statute of the Court of Justice and Article 112(1)(c) of the Rules of Procedure that an appeal must indicate precisely the contested elements of the judgment of the Court of First Instance and also the legal arguments advanced in support of the action to have the judgment set aside.

The fact that an appeal, or a plea in support of an appeal, does not refer to all the reasons which led the Court of First Instance to adopt a position on a question does not result in the plea being inadmissible.

( see paras 65 to 67 )

2. To allow a party to put forward for the first time before the Court of Justice a plea in law which it has not raised before the Court of First Instance would mean allowing that party to bring before the Court, whose jurisdiction in appeals is limited, a wider case than that heard by the Court of First Instance. In an appeal the Court's jurisdiction is thus confined to examining the assessment by the Court of First Instance of the pleas argued before it.

( see para. 74 )

3. Pursuant to Articles 174 and 176 of the Treaty (now Articles 231 EC and 233 EC), the institution or institutions whose act has been declared void are required to take the necessary measures to comply with the judgment of the Court of Justice.

In order to comply with a judgment annulling a measure and to implement it fully, the institution is required to have regard not only to the operative part of the judgment but also to the grounds which led to the judgment and constitute its essential basis, in so far as they are necessary to determine the exact meaning of what is stated in the operative part. It is those grounds which, on the one hand, identify the precise provision held to be illegal and, on the other, indicate the specific reasons which underlie the finding of illegality contained in the operative part and which the institution concerned must take into account when replacing the annulled measure.

The procedure for replacing such a measure may thus be resumed at the very point at which the illegality occurred.

Where annulment of a regulation adopting a definitive anti-dumping duty is based on factors relating to the determination of injury, which arose in the course of the anti-dumping proceeding and which do not concern and do not affect the initiation of the proceeding, the Commission may look in more detail at the issue of determining injury in the course of the anti-dumping proceeding which is still open.

As regards the selection of the reference period, the period provided for in Article 7(1)(c) of the basic anti-dumping regulation (No 2423/88) is a guide rather than mandatory. Furthermore, the institutions have a wide discretion regarding the determination of the period to be taken into account for the purposes of determining injury in an anti-dumping proceeding. Lastly, it is clear from the scheme of the basic regulation that injury must be established in relation to the time when any decision imposing protective measures is adopted. The adoption of anti-dumping duties is not a penalty relating to earlier behaviour but is a protective and preventive measure against unfair competition resulting from dumping practices. It is for that reason that under Article 13 of the basic anti-dumping regulation anti-dumping duties cannot, as a general rule, be adopted or increased with retroactive effect.

In order to be able to determine the anti-dumping duties appropriate for protecting the Community industry against dumping, it is therefore necessary to carry out the investigation on the basis of as recent information as possible.

The existence of sufficient evidence of dumping and the injury resulting therefrom is always a prerequisite for the opening of an investigation, within the meaning of Article 7 of the basic anti-dumping regulation (No 2423/88), whether at the initiation of an anti-dumping proceeding or in the course of a review of a regulation imposing anti-dumping duties. The same is true of the resumption of an investigation in the course of an anti-dumping proceeding which has remained open following a judgment annulling a regulation imposing anti-dumping duties.

( see paras 80-82, 84-85, 88-92, 94 )

4. In performing their duty to provide information, the Community institutions must act with all due diligence by seeking to provide the undertakings concerned, as far as is compatible with the obligation not to disclose business secrets, with information relevant to the defence of their interests, choosing, if necessary on their own initiative, the appropriate means of providing such information. In any event, the undertakings concerned must have been placed in a position during the administrative procedure in which they can effectively make known their views on the correctness and relevance of the facts and circumstances alleged and on the evidence presented by the Commission in support of its allegation concerning the existence of dumping and the resultant injury.

( see para. 99 )