Keywords

Summary



Keywords

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1. Procedure ° Status of res judicata ensuing from judgment dismissing an action on the substance ° Scope ° Inadmissibility of a second action ° Conditions ° Same parties, purpose and submissions in both actions

2. Community law ° Principles ° Proportionality ° Basic anti-dumping regulation ° Proportional character ° Criteria for assessment ° Discretion of the Community legislature in matters of common commercial policy ° Review by the Court ° Limits

(EC Treaty, Art. 3b, third para., and Art. 113; Council Regulation No 2423/88)

3. Common commercial policy ° Anti-dumping measures °Request for reimbursement of anti-dumping duties under Article 16 of Regulation No 2423/88 ° Importer associated with the exporter ° Condition requiring the resale price to the first independent purchaser to be increased by an amount which is double the dumping margin ° Legality ° Breach of the principle of proportionality ° None ° Contravention of the GATT anti-dumping code ° None ° Difference of treatment between associated importers and independent importers justified by the difference in their respective circumstances as regards dumping

(Council Regulation No 2423/88, Arts 2(8) and 16; Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade ("the 1979 Anti-Dumping Code"), Arts 2(5) and (6) and 8(3)

Summary

1. The status of res judicata of a judgment dismissing an action as unfounded will bar the admissibility of a second action only if the proceedings in both cases were between the same parties, had the same purpose and were based on the same submissions, those conditions necessarily being cumulative. Since the act whose annulment is sought is an essential element of the subject-matter of the action, a judgment' s status as res judicata cannot affect the admissibility of a second action where the latter is directed against measures other than those contested in the first.

Moreover, where the legal context of the measure contested in the second action differs in several respects from that of the measure challenged previously, the fact that the complaints put forward in support of the second action largely coincide with those in the previous case does not mean that the second action can be deemed to be a mere replication of the first.

2. By virtue of the principle of proportionality, which had already been recognized by settled case-law as one of the general principles of Community law before being embodied in the third paragraph of Article 3b of the Treaty, the legality of Community rules is subject to the condition that the means employed must be appropriate to attainment of the legitimate objective pursued by the rules concerned and must not go further than is necessary to attain it, and, where there is a choice of appropriate measures, in principle the least onerous should be chosen.

However, in an area in which the Community legislature has a broad discretion which corresponds to the political responsibilities given to it by the Treaty, only if a measure is manifestly inappropriate having regard to the objective which the competent institution is required to pursue can its lawfulness be affected.

That applies to the common commercial policy, in particular where anti-dumping rules are enacted, and also where, under Article 113 of the Treaty, taking account of divergent interests, the basic anti-dumping regulation is implemented, or when, under that regulation, specific anti-dumping measures are adopted.

It follows that review by the Community judicature must be limited, in the sphere of anti-dumping action, to determining whether the measures adopted by the Community legislature are manifestly inappropriate having regard to the objective pursued.

3. By including in Articles 16 and 2(8) of the basic regulation, Regulation No 2423/88, the condition that an importer associated with a dumping exporter will be entitled to reimbursement of the duties paid only if his resale price to the first independent purchaser is increased by an amount which is double the dumping margin previously found, the legislature did not exceed the limits of its discretion, and consequently did not infringe the principle of proportionality, and did not contravene the 1979 GATT Anti-Dumping Code or the principle of non-discrimination.

First, that condition does not appear to be manifestly inappropriate in the case of an associated importer, having regard to the objective pursued by the introduction of an anti-dumping duty, which is to ensure that the exporter concerned and its importer definitively cease dumping and it is not therefore open to criticism by the Court, even if other methods, used subsequently to achieve the same result, were available to the Community legislature.

Secondly, the 1979 GATT Anti-Dumping Code, although providing that the amount of the anti-dumping duty must not exceed the dumping margin and that any duty in excess of that margin must be refunded as quickly as possible, does not deal explicitly or implicitly with the question of the legality of such a condition.

Finally, the difference of treatment as between independent importers and associated importers arising from that condition is justified by the difference in their respective situations in relation to the dumping and therefore does not constitute discrimination. Whereas independent importers are not involved in the dumping, importers who are associated with the exporter are thereby placed on the other side of the "dumping fence" in the sense that they participate in the practices which constitute dumping and, in any event, are in a position to have full knowledge of the circumstances underlying it