OPINION OF MR ADVOCATE GENERAL WARNER

DELIVERED ON 14 FEBRUARY 1979

Contents

I — Introductory II — Article VI of the GATT and the anti-dumping code III — The basic Community legislation IV — The bearings industry V — The events leading to the present actions VI — The present actions and the claims made in them VII — Admissibility of the claims under Article 173 VIII — The substance of the claims under Article 173 1. Formal points going to the validity of the whole of Regulation No 1778/77 2. Points going to the lawfulness of the process of accepting undertakings and then imposing and suspending a definitive duty 3. Points going to the lawfulness of imposing the definitive duty at a flat rate of 15 % 4. Points going to the validity of the Commission's methods of constructing prices, including its selections of representative types (a) The ‘construction’ of expon prices (b) The NTN-GKN point (c) The ISO point (d) Comparison between export prices and domestic prices . (e) The ‘construction’ of domestic prices (f) The selection of ‘representative types’ 5. Points about the right to be heard on whether there was dumping 6. Points about ‘injury’ 7. Points about bearings manufactured by NSK UK 8. Points going only to the validity of Regulation No 261/77 and hence of Article 3 of Regulation No 1778/77 . 9. Other points going only to the validity of Article 3 (a) ‘Discrimination’ as between the Big Four (b) ‘Discrimination’ as between the Big Four and the minor Japanese exporters. (c) Lawfulness of the collection of the provisional duty after acceptance of ‘retrospective’ undertakings IX — The claims for compensation for damage in Case 119/77 X — The outstanding applications in Case 119/77 . XI — Conclusions .

My Lords,

I — Introductory

These actions are brought by four Japanese manufacturers of ball and tapered roller bearings, and by a number of importers of their products into the Community, to challenge in whole or in part, the validity of a Regulation of the Council, namely Regulation No 1778/77 of 26 July 1977 (Official Journal, L 196 of 3 August 1977, p. 1) which is described in its title as ‘concerning the application of the anti-dumping duty on ball bearings and tapered roller bearings originating in Japan’. The Applicants rely, as entitling them to bring that challenge, on the second paragraph of Article 173 of the EEC Treaty. In one of the actions, Case 119/77, there are, in addition, claims for compensation for damage under Article 178 and the second paragraph of Article 215 of the Treaty.

This being the first occasion on which the Court has ever had to consider antidumping legislation, and the questions raised in these actions being of some complexity, I think I must, before stating in more detail who the Applicants are and what their claims are, explain, at some length, the background.

II — Article VI of the GATT and the anti-dumping code

The Council, which is of course the main Defendant in these actions, has mentioned in its pleadings the early history of anti-dumping legislation in such countries as Canada (where it was first introduced as long as 1904), New Zealand, South Africa, Australia and the USA. It seems to me that the only relevance of that early history is to show that the authors of the GATT, when they framed Article VI of that Agreement, were seeking, not so much to innovate, as to regulate.

Article VI of the GATT (as amended and now in force) provides, so far as here relevant, as follows:

‘1. The contracting parties recognize that dumping, by which products of one country are introduced into the commerce of another country at less than the normal value of the products, is to be condemned if it causes or threatens material injury to an established industry in the territory of a contracting party … For the purposes of this article, a product is to be considered as being introduced into the commerce of an importing country at less than its normal value, if the price of the product exported from one country to another

(a) Is less than the comparable price, in the ordinary course of trade, for the like product when destined for consumption in the exporting country, or,

(b) In the absence of such domestic price, is less than either (i) The highest comparable price for the like product for export to any third country in the ordinary course of trade, or (ii) The cost of production of the product in the country of origin plus a reasonable addition for selling cost and profit.

Due allowance shall be made in each case for differences in conditions and terms of sale, for differences in taxation, and for other differences affecting price comparability.

2. In order to offset or prevent dumping, a contracting party may levy on any dumped product an antidumping duty not greater in amount than the margin of dumping in respect of such product. For the purposes of this article, the margin of dumping is the price difference determined in accordance with the provisions of paragraph 1.

…

6. No contracting party shall levy any anti-dumping … duty on the importation of any product of the territory of another contracting party unless it determines that the effect of the dumping … is such as to cause or threaten material injury to an established domestic industry …’

The ‘interpretative notes’ to that Article say, again so far as here relevant:

‘Hidden dumping by associated houses (that is, the sale by an importer at a price below that corresponding to the price invoiced by an exporter with whom the importer is associated, and also below the price in the exporting country) constitutes a form of price dumping with respect to which the margin of dumping may be calculated on the basis of the price at which the goods are resold by the importer.

…

As in many other cases in customs administration, a contracting party may require reasonable security (bond or cash deposit) for the payment of antidumping … duty pending final determination of the facts in any case of suspected dumping …’

On 30 June 1967 there was signed at Geneva an Agreement on the implementation of Article VI of the GATT. That Agreement came into force on 1 July 1968. The parties to it include the EEC and Japan.

The Agreement recites that the parties to it recognize ‘that anti-dumping practices should not constitute an unjustifiable impediment to international trade and that anti-dumping duties may be applied against dumping only if such dumping causes or threatens material injury to an established industry … ’; that those parties consider ‘that it is desirable to provide for equitable and open procedures as the basis for a full examination of dumping cases’; and that they desire ‘to interpret the provisions of Article VI of the General Agreement and to elaborate rules for their application in order to provide greater uniformity and certainty in their implementation’.

Thus it is that that Agreement lays down an ‘Anti-Dumping Code’, of which Article 1 provides:

‘The imposition of an anti-dumping duty is a measure to be taken only under the circumstances provided for in Article VI of the General Agreement. The following provisions govern the application of this Article, in so far as action is taken under anti-dumping legislation or regulations.’

The Code itself is divided into five Sections:

A — Determination of Dumping;

B — Determination of Material Injury, etc.;

C — Investigation and Administration Procedures;

D — Anti-dumping Duties and Provisional Measures; and

E — Anti-dumping Action on behalf of a Third Country.

A number of the provisions in Sections A to D are relevant in these cases.

Section A of the Code contains only one Article, Article 2, which defines the circumstances in which a product is to be considered as being dumped. The general rule, which echoes the wording of paragraph (1) (a) of Article VI of the GATT, is in Article 2 (a) :

‘For the purposes of this Code a product is considered as being dumped, i.e. introduced into the commerce of another country at less than its normal value, if the export price of the product exported from one country to another is less than the comparable price, in the ordinary course of trade, for the like product when destined for consumption in the exporting country.’

After defining the term ‘like product’ (Article 2 (b)) and dealing with the case where products are not imported directly from the country of origin (Article 2 (c)), the Article goes on to provide for the steps that are to be taken if it is impossible, or at any rate inappropriate, to determine the margin of dumping by a straightforward comparison between domestic and export prices. Paragraph (d) of Article 2 relates to what Article VI (1) (b) of the GATT refers to as the‘absence’ of domestic prices ‘in the ordinary course of trade’. It provides so far as here relevant:

‘When there are no sales of the like product in the ordinary course of trade in the domestic market of the exporting country or when, because of the particular market situation, such sales do not permit a proper comparison, the margin of dumping shall be determined by comparison with … the cost of production in the country of origin plus a reasonable amount for administrative, selling and any other costs and for profits. As a general rule, the addition for profit shall not exceed the profit normally realized on sales of products of the same general category in the domestic market of the country of origin.’

As regards the ‘export price’ paragraph (e) provides:

‘In cases where there is no export price or where it appears to the authorities concerned that the export price is unreliable because of association or a compensatory arrangement between the exporter and the importer or a third party, the export price may be constructed on the basis of the price at which the imported products are first resold to an independent buyer, or if the products are not resold to an independent buyer, or not resold in the condition as imported, on such reasonable basis as the authorities may determine.’

Paragraph (f) requires the price comparison to be made ‘at the same level of trade, normally at the ex-factory level, and in respect of sales made as nearly as possible at the same time’. ‘Due allowance’ is to be made in each case ‘on its merits’ for differences in conditions and terms of sale, and in taxation, and for other differences affecting price comparability and, where the export price is constructed in accordance with paragraph (e), ‘for costs, including duties and taxes, incurred between importation and resale, and for profits accruing’.

In Section B of the Code, Article 3 contains elaborate provisions relating to the determination of the question of material injury or threat of such injury to a domestic industry. Article 3 (a) requires the dumping to be ‘demonstrably the principal cause’ of such injury or threat. In reaching their decision the authorities are to ‘weigh, on the one hand, the effect of the dumping and, on the other hand, all other factors taken together which may be adversely affecting the industry’. The determination is ‘in all cases’ to be ‘based on positive findings and not on mere allegations or hypothetical possibilities’. Paragraph (b) of the Article lays down that ‘the evaluation of the effects of the dumped imports on the industry in question … shall be based on examination of all factors having a bearing on the state of the industry in question, such as: development and prospects with regard to turnover, market share, profits, prices (including the extent to which the delivered, duty-paid price is lower or higher than the comparable price for the like product prevailing in the course of normal commercial transactions in the importing country), export performance, employment, volume of dumped and other imports, utilization of capacity of domestic industry, and productivity; and restrictive trade practices’. It is expressly stated that ‘No one or several of these factors can necessarily give decisive guidance’. Paragraph (c) of the Article further provides that:

‘In order to establish whether dumped imports have caused injury, all other factors which, individually or in combination, may be adversely affecting the industry shall be examined, for example: the volume and prices of undumped imports of the product in question, competition between domestic producers themselves, contraction in demand due to substitution of other products or to changes in consumer tastes.’

Detailed procedural requirements are laid down by Section C.

Investigations are normally to be initiated upon a request on behalf of the industry affected, which must be supported by evidence of dumping and injury (Article 5 (a)); upon initiation of an investigation and thereafter the evidence of dumping and injury is to be considered simultaneously (Article 5 (b)); and an investigation must be terminated promptly where the authorities are satisfied that there is not sufficient evidence of dumping or of injury or ‘where the margin of dumping or the volume of dumped imports, actual or potential, or the injury is negligible’ (Article 5 (c)).

Articles 6 and 7 deal respectively with evidence and with undertakings by exporters to revise their prices. Because of their importance in connexion with a number of issue in these actions, I must quote them in full:

‘Article 6

Evidence

(a) The foreign suppliers and all other interested parties shall be given ample opportunity to present in writing all evidence that they consider useful in respect to the anti-dumping investigation in question. They shall also have the right, on justification, to present evidence orally.

(b) The authorities concerned shall provide opportunities for the complainant and the importers and exporters known to be concerned and the governments of the exporting countries, to see all information that is relevant to the presentation of their cases, that is not confidential as defined in paragraph (c) below, and that is used by the authorities in an anti-dumping investigation, and to prepare presentations on the basis of this information.

(c) All information which is by nature confidential (for example, because its disclosure would be of significant competitive advantage to a competitor or because its disclosure would have a significantly adverse effect upon a person supplying the information or upon a person from whom he acquired the information) or which is provided on a confidential basis by parties to an antidumping investigation shall be treated as strictly confidential by the authorities concerned who shall not reveal it, without specific permission of the party submitting such information.

(d) However, if the authorities concerned find that a request for confidentiality is not warranted and if the supplier is either unwilling to make the information public or to authorize its disclosure in generalized or summary form, the authorities would be free to disregard such information unless it can be demonstrated to their satisfaction from appropriate sources that the information is correct.

(e) In order to verify information provided or to obtain further details the authorities may carry out investigations in other countries as required, provided they obtain the agreement of the firms concerned and provided they notify the representatives of the government of the country in question and unless the latter object to the investigation.

(f) Once the competent authorities are satisfied that there is sufficient evidence to justify initiating an anti-dumping investigation pursuant to Article 5 representatives of the exporting country and the exporters and importers known to be concerned shall be notified and a public notice may be published.

(g) Throughout the anti-dumping investigation all parties shall have a full opportunity for the defence of their interests. To this end, the authorities concerned shall, on request, provide opportunities for all directly interested parties to meet those parties with adverse interests, so that opposing views may be presented and rebuttal arguments offered. Provision of such opportunities must take account of the need to preserve confidentiality and of the convenience to the parties. There shall be no obligation on any party to attend a meeting and failure to do so shall not be prejudicial to that party's case.

(h) The authorities concerned shall notify representatives of the exporting country and the directly interested parties of their decisions regarding imposition or non-imposition of antidumping duties, indicating the reasons for such decisions and the criteria applied, and shall, unless there are special reasons against doing so, make public the decisions.

(i) The provision of this Article shall not preclude the authorities from reaching preliminary determinations, affirmative or negative, or from applying provisional measures expeditiously. In cases in which any interested party withholds the necessary information, a final finding, affirmative or negative, may be made on the basis of the facts available.

Article 7

Price undertakings

(a) Anti-dumping proceedings may be terminated without imposition of antidumping duties or provisional measures upon receipt of a voluntary undertaking by the exporters to revise their prices so that the margin of dumping is eliminated or to cease, to export to the area in question at dumped prices if the authorities concerned consider this practicable, e.g. if the number of exporters or potential exporters of the product in question is not too great and/or if the trading practices are suitable.

(b) If the exporters concerned undertake during the examination of a case, to revise prices or to cease to export the product in question, and the authorities concerned accept the undertaking, the investigation of injury shall nevertheless be completed if the exporters so desire or the authorities concerned so decide. If a determination of no injury is made, the undertaking given by the exporters shall automatically lapse unless the exporters state that it shall not lapse. The fact that exporters do not offer to give such undertakings during the period of investigation, or do not accept an invitation made by the investigating authorities to do so, shall in no way be prejudicial to the consideration of the case. However, the authorities are of course free to determine that a threat on injury is more likely to be realized if the dumped imports continue.’

In Section D of the Code the imposition and collection of anti-dumping duties is dealt with by Article 8. According to paragraph (a) of that Article it is ‘desirable’ that the duty imposed should be less than the margin of dumping if a lesser duty would be adequate to remove the injury to the domestic industry. Paragraph (b) provides, so far as relevant:

‘When an anti-dumping duty is imposed in respect of any product, such antidumping duty shall be levied, in the appropriate amounts in each case, on a non-discriminatory basis on imports of such product from all sources found to be dumped and causing injury. The authorities shall name the supplier or suppliers of the product concerned. If, however, several suppliers from the same country are involved, and it is impracticable to name all the suppliers, the authorities may name the supplying country concerned.

…’

Paragraph (c) provides that:

‘The amount of the anti-dumping duty must not exceed the margin of dumping as established under Article 2. Therefore, if subsequent to the application of the anti-dumping duty it is found that the duty so collected exceeds the actual dumping margin, the amount in excess of the margin shall be reimbursed as quickly as possible.’

Paragraph (d) sets out certain rules applicable where a ‘basic price system’ is adopted. Those rules are not directly in point here but they play a part in the anti-dumping machinery of the ECSC, which was referred to in the course of argument. Very briefly, under such a system a comparison is made between the export price and a ‘basic price’ established for the purpose. The rules prescribe, among other things, that the basic price must not exceed ‘the lowest normal price in the supplying country or countries where normal conditions of competition are prevailing’.

As to the duration of anti-dumping duties, Article 9 provides that such a duty is to remain in force ‘only as long as it is necessary in order to counteract dumping which is causing injury’ and that ‘the authorities concerned shall review the need for the continued imposition of the duty, where warranted, on their own initiative or if interested suppliers or importers of the product so request and submit information substantiating the need for review’.

Article 10 relates to ‘provisional measures’. Such measures may be taken ‘only when a preliminary decision has been taken that there is dumping and when there is sufficient evidence of injury’ (Article 10 (a)). They may ‘take the form of a provisional duty or preferably, a security — by deposit or bond — equal to the amount of the antidumping duty provisionally estimated, being not greater than the provisionally estimated margin of dumping’ (Article 10 (b)). The authorities concerned are to ‘inform representatives of the exporting country and the directly interested parties of their decisions regarding imposition or provisional measures indicating the reasons for such decisions and the criteria applied’ and the decisions are normally to be made public (Article 10 (c)). The measures must be limited to as short a period as possible and, more specifically, ‘shall not be imposed for a period longer than three months or, on decision of the authorities concerned upon request by the exporter and the importer, six months’ (Article 10 (d)).

Finally, there are the provisions of Article 11 about retroactivity. That Article establishes the general principle that anti-dumping duties and provisional measures are not to be imposed with retroactive effect. There are exceptions to that principle, of which one (contained in paragraph (i) of Article 11) is directly relevant in these cases and another (contained in paragraph (iii)) is of some relevance in connexion with the antidumping rules of the ECSC.

The exception in paragraph (i) is to the effect, briefly, that, where provisional measures have been taken, and dumped imports carried out during the period of their application would, in the absence of those measures, have caused material injury, duties may be levied retroactively for the period during which the provisional measures applied. Paragraph (i) concludes:

‘If the anti-dumping duty fixed in the final decision is higher than the provisionally paid duty, the difference shall not be collected. If the duty fixed in the final decision is lower than the provisionally paid duty or the amount estimated for the purpose of the security, the difference shall be reimbursed or the duty recalculated, as the case may be.’

Paragraph (iii) allows the imposition of a duty retroactive for 90 days in certain circumstances where ‘sporadic dumping’ (i.e. massive dumped imports of a product in a relatively short period) has taken place.

III — The basic Community legislation

Anti-dumping measures are under the EEC Treaty an aspect of the common commercial policy. They were during the transitional period a matter to which Article 111 of the Treaty applied and they are expressly mentioned in Article 113.

On 5 April 1968 the Council adopted, pursuant to Articles 111 and 113, Regulation (EEC) No 459/68 (Official Journal, L 93 of 17 April 1968, p. 1) of which the general effect, so far as here relevant, may be summarized by saying that it did two things: it translated the Anti-Dumping Code into Community law and it allocated to the Council, to the Commission and to the Member States their respective roles in the implementation of the resulting Community anti-dumping law. The preamble to the Regulation recites among other things that ‘in view of the international obligations of the Community and its Member States, this Regulation must be drawn up with due regard for the rules laid down in Article VI of the General Agreement on Tariffs and Trade and in the Agreement on Implementation of that Article’.

Article 1 of the Regulation is introductory. Paragraph (2) thereof states somewhat cryptically that, ‘provided such action does not run counter to obligations under the GATT’, the provisions of Articles 2 to 5 (which lay down the substantive requirements for the levying of anti-dumping duties) ‘shall not preclude the adoption of special measures’.

Article 2 (1) provides so far as material:

‘An anti-dumping duty may be applied to any dumped product whose introduction into Community commerce causes, or threatens to cause, material injury to an established Community industry …’

The rules relating to the determination of dumping are set out in Article 3 which follows very closely the wording of Article 2 of the Anti-Dumping Code.

The normal test of dumping, stated in Article 3 (1) (a), is that:

‘… the price of the product when exported to the Community is less than the comparable price, in the ordinary course of trade, of the like product … when destined for consumption in the exporting country of origin.’

Article 3 (2) provides tor the situation where ‘there are no sales of the like product in the ordinary course of trade in the domestic market of the exporting country’ or where ‘because of the particular market situation, such sales do not permit a proper comparison’. It is, so far as material, in terms identical to those of Article 2 (d) of the Anti-Dumping Code, and in particular permits, in such a situation, the ‘construction’ of the ‘domestic price’ on the basis of ‘the cost of production in the country of origin plus a reasonable amount for administration, selling and other costs and for profits’, with the proviso that ‘as a general rule, the addition for profit shall not exceed the profit normally realized on sales of products of the same general category in the domestic market of the country of origin’.

Article 3 (3) corresponds to Article 2 (e) of the Anti-Dumping Code. It provides in particular for the construction of the ‘export price’ on the basis of the price upon the first resale to an independent buyer, ‘where it appears that the export price is unreliable because of association or a compensatory arrangement between the exporter and the importer’.

Article 3 (4), corresponding to Article 2 (f) of the Anti-Dumping Code, requires (by subparagraph (a)) the comparison between the export price and the domestic price to be ‘based upon prices ruling at the same level of trade, normally the ex-factory level’, and ‘in respect of sales made as nearly as possible at the same time’; and (by subparagraph (b)) ‘due allowance’ to be made ‘for differences in conditions and terms of sale, for the differences in taxation, and for the other differences affecting price comparability’, and also in cases where export prices are constructed under Article 3 (3) ‘for costs incurred between importation and resale, and for profits accruing’.

Article 3 (7) defines ‘margin of dumping’ as meaning ‘the price difference determined in accordance with the foregoing provisions’.

Article 4 is concerned with the determination of injuryand reflects the provisions of Section B of the Anti-Dumping Code.

Article 4 (1) (a) provides that a determination of injury is to be made ‘only when the dumped imports are demonstrably the principal cause of such injury’ and that, in establishing whether injury exists, ‘the consequences of the dumping positively found to be as such shall be weighed against all other factors taken together which may be adversely affecting the Community industry in question’. Article 4 (1) (b) requires any determination of threat of injury to ‘be based on facts and not merely on allegation, conjecture or remote possibility’. Paragraph (2) of Article 4, which deals with the evaluation of injury, and paragraph (3), which deals with the question of causation, are identical in all material aspects to, respectively, paragraphs (b) and (c) of Article 3 of the Anti-Dumping Code.

Articles 6 and 7 of the Regulation lay down rules concerning anti-dumping complaints which go into greater detail than Article 5 (a) of the Anti-Dumping Code.

Article 6 (1) provides that a complaint must be in writing and may be lodged by ‘any natural or legal person, or any association not having legal personality, acting on behalf of a Community industry which considers itself injured or threatened by dumping’. Article 6 (2) envisages that such a complaint may be submitted to a Member State or to the Commission. In the latter case, which is that relevant here, the Commission is required by sub-paragraph (b) to forward the complaint immediately to the Member States.

Article 7 provides that the complaint must give a description of the product in question; the name of the exporting country; where possible, the names of the country of origin, of the producer and of the exporter; and ‘evidence both of dumping and of injury resulting therefrom for the industry which considers itself injured or threatened’.

Article 9, as amended by Article 4 of Council Regulation (EEC) No 2011/73, prescribes a procedure for the summary rejection of a complaint which does not contain the particulars specified in Article 7, or if it is apparent without investigation that the margin of dumping, the volume of dumped imports, actual or potential, or the injury is negligible (compare Article 5 (c) of the Anti-Dumping Code). Unless that procedure is applied, the Commission, acting in cooperation with the Member States, is required by Article 10 (1) immediately to commence an ‘examination of the matter’, covering both dumping and injury, at Community level.

In conducting such an examination the Commission is empowered by Article 10 (3) (a) ‘to obtain all necessary information from importers, exporters, traders and producers, and from trade associations and organizations’. Article 10 (3) (b), as amended by Article 5 of Regulation No 2011/73, makes provision for investigations to be carried out in third countries where necessary ‘in order to verify information collected or to obtain further details’. The Commission may carry out such investigations ‘only if the undertakings concerned give their consent and the government of the country in question has been officially notified and raises no objection’. There is provision also for the Commission to be ‘assisted by officials of one or more Member States, if the latter have so requested, in all investigations conducted on the spot’. Article 10 (5) enables the Commission to call for assistance from Member States. It may ask them to supply information or to carry out checks and inspections, including investigations in third countries, but again ‘where the purpose of such investigations is to verify information provided or to obtain further details from within the undertaking concerned, they may be carried out only if the undertakings concerned give their consent and the government of the country in question has been officially notified and raises no objection’. Commission officials may assist the officials of Member States in carrying out such duties.

Procedural safeguards for interested parties are afforded by paragraphs (2), (4) and (6) of Article 10.

Under paragraph (2), ‘where the information received by the Commission shows that protective measures against dumping may be necessary the Commission, without prejudice to the continued examination of the matter,’ is to ‘advise the representatives of the exporting country and the exporters and importers known to be concerned’. It must, at the same time, publish a notice in the Official Journal of the European Communities. That notice must, among other things "state that all relevant information is to be communicated to the Commission and set the period within which interested parties may apply to be heard by the Commission in accordance with the provisions of paragraph (6) (compare Article 6 (f) of the Anti-Dumping Code).

Paragraph (4), which corresponds to Article 6 (b) of the Anti-Dumping Code, and which has been the subject of much argument in these cases, requires that:

“The Commission shall provide opportunities for the complainant and the importers and exporters known to be concerned, and the representatives of the exporting country to see all information that is relevant to the defence of their interests and not confidential within the meaning of Article 11, and that is used by the Commission in the anti-dumping investigation.”

Paragraph (6) gives effect to paragraph 6 (g) of the Anti-Dumping Code. It provides :

‘(a) The Commission may hear the interested parties. It shall so hear them if they have, within the period prescribed in the notice published in the Official Journal of the European Communities, made a written request for a hearing showing that they may be directly affected by the result of the examination of the matter. In such case, the Commission shall give the parties an opportunity to make known their views in writing within a period which it shall set. The Commission shall, furthermore, give the parties directly interested who have so requested in writing and can show a sufficient interest an opportunity to express their views orally.

(b) Furthermore, the Commission shall, on request, give the parties directly concerned an opportunity to meet, so that opposing views may be presented and any rebuttal argument put forward. In providing this opportunity the Commission shall take account of the need to preserve confidentiality and of the convenience of the parties. There shall be no obligation on any party to attend a meeting and failure to do so shall not be prejudicial to that party's case.’

Paragraph (7) gives effect to Article 6 (i) of the Anti-Dumping Code.

Article 11 relates to confidential information. Paragraph (2) forbids the disclosure by the Council, the Commission, the Member States or any of their officials, of ‘any information of a confidential nature received in pursuance of this Regulation or any information provided on a confidential basis by a party to an anti-dumping investigation, without specific permission of the party submitting such information’ (compare Article 6 (c) of the Anti-Dumping Code). The case of unwarranted requests for confidentiality is dealt with by paragraph (3), which is materially identical to (but, so far as the English text is concerned, more grammatical than) Article 6 (d) of the Anti-Dumping Code.

Articles 12 and 13 relate to the process of consultation between the Commission and the Member States. Such consultations may be held at any time, either immediately on request by a Member State or on the initiative of the Commission (Article 12 (1)). They take place within an Advisory Committee (thereafter in the Regulation called ‘the Committee’) consisting of representatives of each of the Member States, with a representative of the Commission in the Chair (Article 12 (2)). Article 12 (4), which was added by Article 6 of Regulation No 2011/73, enables consultation to be, where necessary, in writing only. Article 13 provides that consultation shall, in particular: cover:

‘(a) The existence and margin of dumping;

(b) The existence and extent of injury;

(c) The measures which, having regard to all the circumstances, are appropriate to remedy the effects of dumping, and the ways and means for putting such measures into effect.’

Article 14 (1) prescribes the procedure that is to apply where ‘it becomes apparent from consultation as provided for in Article 13 that protective measures are unnecessary’. In such a case, subparagraph (a) provides that, ‘where no objection is raised within the Committee, the proceeding shall stand terminated’. Otherwise, the Commission is required to submit forthwith to the Council ‘a report on the results of the consultation, together with a proposal that the proceeding be terminated’. The proceeding will then stand terminated either if the Council, acting by a qualified majority, approves the Commission's proposal or if within one month the Council has taken no decision or made no request by a qualified majority to the Commission for the examination of the matter to be resumed. Sub-paragraph (b) provides for the representatives of the exporting country and the directly interested parties to be informed by the Commission of the termination of the proceeding, and of the reasons for termination and of the criteria applied. If a notice was published in the Official Journal under Article 10 (2), that paragraph also requires the Commission immediately to announce the termination in the same Journal, unless there are special reasons against so doing (compare Article 6 (h) o£ the Anti-Dumping Code).

Article 14 (2) of the Regulation deals with price undertakings and corresponds to Article 7 of the Anti-Dumping Code. Sub-paragraphs (a), (b) and (c) are in these terms:

‘(a) The provisions of the foregoing paragraph shall also apply where, during examination of the matter, the exponers give a voluntary undertaking to revise their prices so that the margin of dumping is eliminated or to cease to export the product in question to the Community, provided that the Commission after hearing the opinions expressed within the Committee, considers this acceptable.

(b) Where the Commission, acting in accordance with the provisions of the foregoing subparagraph, accepts the undertaking referred to therein, the investigation of injury shall nevertheless be completed if the exporters so desire or if, after hearing the opinions expressed within the Committee, the Commission so decides. If the Commission, after hearing the opinions expressed within the Committee, makes a determination of no injury, the undertaking given by the exporters shall automatically lapse unless the exporters state that it is not so to lapse.

(c) The fact that exporters do not offer to give such undertakings, or do not accept an invitation made by the Commission to do so, shall in no way be prejudicial to the consideration of the case. However, the Commission shall be free to determine that a threat of injury is more likely to be realised if the dumped imports continue.’

Two further sub-paragraphs, which provide for the policing of undertaking, were added by Article 7 of Regulation No 2011/73. Of these, sub-paragraph (d) provides:

‘Where the Commission finds that the undertaking of exporters is being evaded or no longer observed or has been withdrawn and that, as a result, protective measures might be necessary, it shall forthwith so inform the Member States and shall recommence the examination of the facts in accordance with Article 10.’

Sub-paragraph (e) makes the provisions of Article 18 (1) of the Regulation (which concern the monitoring of the effects of anti-dumping measures that have been put into operation) applicable mutatis mutandis to undertakings given by exporters on the basis of Article 14.

Articles 15 and 16 of the Regulation lay down rules for the adoption of provisional measures. They correspond to Article 10 of the Anti-Dumping Code, but are far more elaborate.

Article 15 (1) (a) is in these terms:

‘Where preliminary examination of the matter shows that there is dumping and there is sufficient evidence of injury and the interests of the Community call for immediate intervention, the Commission, acting at the request of a Member State or on its own initiative, shall:

— having due regard to the provisions of Article 19 (3), fix an amount to be secured by way of provisional antidumping duty, collection of which shall be determined by the subsequent decision of the Council under Article 17;

— indicate, using the description required under Article 20, the products covered by this measure;

— stipulate that entry of such products for Community consumption shall be conditional upon the provision of security for the aforementioned amount.’

(Article 19 (3), so far as relevant for present purposes, limits the amount of a provisional duty to the margin of dumping provisionally determined and adds that ‘it should be less than the margin if such lesser duty would be adequate to remove the injury’. To Articles 17 and 20 I shall come).

Article 15 (1) (b) provides for consultation within the Committee about the adoption of provisional measures. Article 15 (1) (c) provides, so far as here relevant, that, where a Member State requests immediate intervention by the Commission, the latter is to decide within a maximum of five working days whether a provisional anti-dumping duty should be imposed.

Article 15 (2) provides, so far as relevant, by sub-paragraph (a) that provisional measures continue to operate until the entry into force of a decision by the Council under Article 17, subject, however to a maximum of three months, and, by sub-paragraph (b) that after the period of validity of such measures has expired, the security must be released to the extent of the amount secured that the Council has not decided to collect definitively under Article 17. Article 16 (2) enables the Commission ‘if so requested by the exponers and by the importers, and if examination of the matter has not yet been completed’ to submit a proposal to the Council for the extension of the provisional measures ‘for a period not exceeding three months’. The Council is to act on such a proposal by a qualified majority.

Article 17 provides:

‘1. Where the facts as finally established show that there is dumping and injury, and the interests of the Community call for Community intervention, the Commission shall, after hearing the opinions expressed within the Committee, submit a proposal to the Council. Such proposal shall also cover the matters set out in paragraph 2.

(a) The Council shall act by a qualified majority. Where Article 15 (1) has been applied, the Council shall decide, subject to the provisions of Article 15 (2), what proportion of the amounts secured by way of provisional duty is to be definitively collected.

(b) The definitive collection of such amount shall not be decided upon unless the facts as finally established show that there is material injury … or that such injury would have been caused if provisional action had not been taken.’

Article 18, which was amended by Council Regulation (EEC) No 1411/77, provides for what I described earlier as monitoring of the effects of antidumping measures after they have been imposed, and for their amendment or revocation as may be necessary.

Article 19 (1) provides that:

‘Anti-dumping duties, whether provisional or definitive, shall be imposed by Regulation.’

Article 19 (2) (a) provides, so far as relevant:

‘(a) Without prejudice to the provisions of Article 17 (2), such duties shall be neither imposed nor increased with retroactive effect.

(b) Such duties shall apply to all the products specified in the Council or the Commission measure which, after entry into force of such measure, are entered for Community consumption.’

(Compare Article 11 of the Anti-Dumping Code).

Article 19 (3) is in these terms:

‘The amount of an anti-dumping duty, whether definitive or provisional, shall not exceed the margin of dumping established, or, in the case of a provisional duty, the margin of dumping provisionally determined; it should also be less than the margin if such lesser duty would be adequate to remove the injury.’

(Compare Article 8 (a) and (c) of the Anti-Dumping Code).

Article 19 (4) provides a safeguard for importers. Its essential provisions are these:

‘(a) Where an importer can show that the products which he has entered for Community consumption were not dumped, or where the margin of dumping is lower than that on which the Council or Commission measure was based, the antidumping duties collected on those products shall be returned to him in whole or in part; where provisional measures were taken, the same shall apply in respect of the release of securities.

(b) For this purpose, the importer may, within three months of the date on which the products were entered for consumption, submit an application to the Member State in whose territory they were so entered.’

The remainder of the paragraph lays down the procedure (involving consultation between that Member State, the Commission and the other Member States) whereby it is to be decided whether and to what extent the application should be granted.

Article 20 lays down how a product covered by an anti-dumping measure is to be described. Paragraph (1) requires such description to include:

‘(a) tariff description;

(b) commercial description;

(c) country of origin or export

(d) name of supplier.’

Paragraph (2) provides however that:

‘If several suppliers from the same country are involved, and it is impracticable to name them all, the product may be described by the particulars referred to in (a), (b) and (c) of the foregoing paragraph …’

(Compare Article 8 (b) of the Anti-Dumping Code, second and third sentences).

Article 21 makes it clear that antidumping duties are to be collected by the Member States. They form part, however, of the Community's own resources.

Those are, I think, all the provisions of the basic EEC legislation that call for consideration in these cases.

Having regard, however, to the references that were made in argument to the anti-dumping rules of the ECSC, I think that I ought to say something about them.

They rest on Articles 74 and 86 of the ECSC Treaty. Article 74 empowers the Commission, in the cases there set out, to take measures and to make recommendations to Governments. One of those cases is ‘if it is found that countries not members of the Community or undertakings situated in such countries aré engaging in dumping’. Article 86 binds Member States to give effect to such measures and recommendations.

Thus a fundamental difference between the ECSC and the EEC is that, in the case of the former, the power to decide lies with the Commission. The Council has no part to play.

The exercise of its power was not put by the Commission on a systematic basis until it made Recommendation No 77/329/ECSC on 15 April 1977. The preamble to that Recommendation refers to Regulation No 459/68 (as amended) and recites that ‘it is appropriate that the legislation governing external trade should be as homogeneous as possible in the two Communities’. It also refers to ‘the international obligations of the two Communities and their Member States’. The system adopted by Recommendation No 77/329 was essentially that of Regulation No 459/68, as amended by Regulation No 2011/73, with adaptations appropriate to the different institutional structure of the ECSC.

On 28 December 1977, the Commission made Recommendation No 3004/77/ECSC modifying in a number of respects Recommendation No 77/329. Of the modifications thus introduced, three are, I think, notable.

The first, and probably the most important in the light of the arguments presented to us in these cases, was the modification of Article 14 (2) (d) of Recommendation No 77/329, which had, until then, been identical to Article 14 (2) (d) of Regulation No 459/68 (added by Regulation No 2011/73). Both had provided that, if the Commission should find that an undertaking given by exporters was being evaded or no longer observed or had been withdrawn, and that, as a result, protective measures might be necessary, the Commission should forthwith resume the ‘examination of the facts’. Article 3 of Recommendation No 3004/77 substituted for that provision in Recommendation No 77/329 an elaborate set of provisions, culminating in this:

‘Where the Commission finds that the undertaking is being evaded or no longer observed or has been withdrawn it shall immediately take such measures as may be necessary.’

The other two notable modifications were the introduction, by Article 4 of Recommendation No 3004/77, of provisions moulded on those of Article 11 (iii) of the Anti-Dumping Code, relating to cases of ‘sporadic dumping’; and, by Article 5, of provisions enabling a basic price system, of the kind envisaged in Article 8 (d) of the Anti-Dumping Code, to be instituted.

None of those modifications has ever been made in the EEC legislation.

IV — The bearings industry

The products that are in question in these actions are, as I indicated at the outset, ball bearings and tapered roller bearings. There are some 25000 types and sizes of bearings prescribed by international standards, so that, subject to differences in quality, bearings produced by different manufacturers are interchangeable. Among those types and sizes there are some that are in great demand. They are known as ‘bread and butter’ or ‘star’ types. They can be produced cheaply in long production runs. The European industry has complained that it is on those types that competition from Japanese manufacturers has been concentrated.

There are in Japan four major manufacturers of bearings, who between them, account for some 90 % of sales on the Japanese market and some 95 % of exports from Japan to the Community. They are NTN Toyo Bearing Company Limited (‘NTN’), Nippon Seiko K.K. (‘NSK’), Koyo Seiko Company Limited (‘KOYO’) and Nachi Fujikoshi Corporation (‘NACHI’). I shall call them ‘the Big Four’. There are nine minor Japanese manufacturers whose products are exported or have been exported to the Community. The Big Four and those nine are members of the ‘Japan Bearing Industrial Association’.

Within the Community the production of bearings takes place mainly in France, Germany and the United Kingdom. There is some production in Italy, where imports from Japan are subject to quantitative restrictions. It appears, moreover, that Italy is authorized by the Commission under Article 115 of the EEC Treaty to exclude imports of bearings of Japanese origin that are in free circulation in other Member States. There is no statistically significant production of bearings in Belgium, Denmark, Ireland, Luxembourg or the Netherlands.

The national associations of bearing manufacturers in France, Germany and the United Kingdom, whose common interests had previously been looked after by a ‘Committee of the European Bearing Manufacturers’ Associations', formed in March 1977 the Federation of European Bearing Manufacturers Associations (FEBMA) which has intervened in each of these actions.

There are in the Community as a whole some two to three hundred importers of Japanese bearings, but the importation of the products of the Big Four is effected, for the most part, by subsidiaries of theirs or by companies otherwise connected with them.

NTN has a subsidiary in France, NTN-Roulements Sidag S.A. (‘NTN France’), and one in Germany, NTN Wälzlager (Europa) GmbH (‘NTN Germany’). In the United Kingdom it has a 50 % holding in NTN Bearings-GKN Ltd (‘NTN-GKN’) the other 50 % of which is owned by a well-known English company, Guest, Keen & Nettlefolds Ltd.

NSK has subsidiaries in France, Germany and the United Kingdom, namely NSK France S.A. (‘NSK-France’), NSK Kugellager GmbH (‘NSK Germany’) and NSK Bearings Europe Ltd (‘NSK UK’). NSK UK both imports bearings manufactured in Japan and itself manufactures bearings at Peterlee in County Durham.

KOYO also has subsidiaries in France, Germany and the United Kingdom, namely a company simply called ‘Koyo France’, Deutsche Koyo Wälzlager Verkaufsgesellschaft mbH (‘Deutsche Koyo’) and Koyo UK Ltd (‘Koyo UK’).

NACHI has a subsidiary in Germany, Nachi (Deutschland) GmbH (‘Nachi Deutschland’), and one in the United Kingdom, Nachi (UK) Ltd (‘Nachi UK’). Of NACHI's exports to the Community 67 % are however handled by an independent French company, Import Standard Office S.A. (‘ISO’), which is NACHI's sole distributor in France.

V — The events leading to the present actions

The degree of penetration of the common market by bearings manufactured in Japan seems to have caused concern in the European industry as early as 1968. This concern led to a number of initiatives, including an approach to the Commission in 1968, after which the latter agreed to treat bearings as a ‘sensitive product’ in trade negotiations with Japan.

However, for present purposes, I do not think that it is necessary to go back further than May 1967, when a Memorandum entitled ‘Low-priced imports from Japan and the state-trading countries — The threat to the EEC bearing industry’ was presented to the Commission by the European manufacturers. It was stated in the Memorandum that there could be little doubt that dumping had taken place on a number of occasions but that it was almost impossible to obtain the evidence which was necessary in order to make out a complaint satisfying the GATT rules. Accordingly, the Memorandum did not ask the Commission to initiate antidumping proceedings but rather to introduce Community import surveillance and Community import quotas in respect of bearings originating in Japan and the State-trading countries. The Commission says that it discussed the Memorandum with the Member States but was unwilling to take any action such as the imposition of quotas which might have led to a revival of protectionism in international trade. For the time being, therefore, it was content merely to keep the situation under review.

Despite the difficulties referred to in the Memorandum of May 1976, an antidumping complaint was lodged with the Commission on 15 October 1976 by the Committee of the European Bearing Manufacturers' Associations. For the purposes of the complaint, the comparison between domestic and export prices was made in relation to ten types of ball bearings and six types of roller bearings. The domestic prices were based on price-lists issued by three of the Big Four in 1975. It was acknowledged that, in practice, domestic sales took place at prices well below the list prices, Accordingly, a discount of 60 % was allowed for by the complainants in their calculations and documents supporting this figure were supplied to the Commission. Export prices were taken from a price-list for 1975 stated to have been issued ‘by the Export Cartel of the Japanese bearing industry’. It was alleged that those documents together established dumping margins averaging 45 %. In addition, the complaint provided evidence of injury, allegedly amounting to DM 500 million during the period 1970 to mid-1976. The accuracy of the information in the complaint was challenged before us by the applicants, in particular by NSK.

The Commission has however told us (and the Applicants have accepted) that it did not use any of this material either for the purpose of the provisional finding of dumping and injury that it subsequently made, or for the purpose of its definitive findings.

As required by Article 6 (2) (b) of Regulation No 459/68, the Commission forwarded the complaint to the Member States. They made their views known to the Commission on 5 November 1976. The decision to open an official antidumping investigation was taken on 9 November 1976 and was communicated to the Japanese Embassy to the Community. On 13 November 1976, a notice of the initiation of the proceeding, complying with the requirements of Article 10 (2) of Regulation No 459/68, was published in the Official Journal of the European Communities. It set 30 days as the period within which interested parties should ‘make known their views in writing’ and stated that the Commission would hear those directly concerned who so requested and who could ‘show that they have an interest sufficient to entitle them to express their views more fully’.

The Commission was also of course required by Article 10 (2) to advise ‘the exporters and importers known to be concerned’ of the initiation of an antidumping investigation. Letters dated 10 November 1976 were, accordingly, sent to the Big Four and to a number of importers, including the European subsidiaries of the Big Four and ISO. For some unexplained reason, the letter to NSK France was sent at a date later than the others. With each of the letters there were enclosed a copy of the notice to be published in the Official Journal and a questionnaire which the recipient was invited to complete for the purpose of presenting what the Commission itself described as its ‘defence’. The questionnaires were in a standard form used for EEC anti-dumping investigations and asked for details of, among other things, prices and quantities sold. The exporters were particularly requested to include in their supporting evidence copies of all invoices issued by them for sales in the period January to June 1976, both on the domestic market of Japan and for export to the Community, of the sixteen types of bearings selected by the complainants. The letters to them added:

‘In order to attempt to reach a speedy and equitable solution you might wish to present your case orally to representatives of the Commission and, possibly, to meet the European producers so that opposing views may be presented. For that purpose, the Commission would propose a meeting on 18 January 1977. Please confirm, by return, whether this date is suitable to you. You should bear in mind, however, that your written submission must in any case be made within the time-limit of 30 days fixed in the publication.’

Some of the recipients of the letters requested, and were granted, an extension of time for answering the questionnaires. Initial replies from the Big Four were received by the Commission under cover of letters dated 17 and 18 December 1976. Correspondence between them and the Commission continued thereafter and indeed throughout the investigation.

A meeting between ‘the parties directly concerned’ took place in Brussels on 18 and 19 January 1977. This appears to have been a ‘confrontation meeting’ of the type envisaged in Article 6 (g) of the Anti-Dumping Code and Article 10 (6) (b) of Regulation No 459/68, providing an opportunity for the presentation of ‘opposing views’ by representatives of the European industry, on the one hand, and representatives of exporters and importers of Japanese bearings, on the other, rather than an oral hearing of the type envisaged by Article 10 (6) (a) of the Regulation. The meeting was attended also by Japanese Government officials. It appears to be common ground that little progress was made at the meeting, chiefly because the Japanese exporters were unwilling to discuss information of a confidential nature in the presence of their competitors. They did however say that the discount on their domestic list prices should have been 70 to 80 %, instead of the 60 % on which the calculations of the complainants had been based. Much of the case put forward on their behalf consisted in an attack upon the evidence of material injury relied on by the complainants. On this subject a written memorandum was submitted by the Japan Bearing Industrial Association. It is also common ground that, although invited to do so, the Japanese exporters were unwilling to discuss the possibility of increasing their expon prices or of giving undertakings. That being so, the Commission warned them that a preliminary decision might be taken in the near future and asked them to supply, by 25 January 1977 at the latest, certain additional information. Some at least of that information was sent to the Commission on or about 26 January 1977.

On 28 January 1977 a meeting was held of the Advisory Committee at which the representatives of several of the Member States requested that provisional antidumping duties be imposed immediately. That meant that, by virtue of Article 15 (1) (c) of Regulation No 459/68, the Commission was required to decide within a maximum of five working days whether that step should be taken.

In the event, the Commission took the view that dumping and injury had been sufficiently established by its preliminary examination and that the interests of the Community called for immediate intervention. Accordingly, on 4 February 1977, it adopted Regulation No 261/77, which entered into force on the day of its publication in the Official Journal, 5 February 1977. By that Regulation a provisional anti-dumping duty of 20 % was imposed on ball bearings, tapered roller bearings and parts thereof originating in Japan. The Commission evidently took the view that it was impracticable to name all the suppliers, for the Regulation did not do so (see Article 20 (2) of Regulation No 459/68). However, duty at a lower rate f 10 % was imposed on the products NACHI and KOYO. The Commission explained to us that that more favourable treatment was due to the fact that, in the preliminary examination, it had seemed that the margin of dumping was lower in their case. It later transpired that the rate of duty should have been the same for the products of all the Big Four. The Regulation made the entry into free circulation in the Community of products to which the duty applied conditional upon the deposit of security for the amount of the duty. (In general the security took the form of a bank guarantee). In accordance with Article 15 (2) of Regulation No 459/68, the provisional duty was to apply for a maximum period of three months.

After the adoption of Regulation No 261/77 the Commission continued its investigation. This involved frequent meetings in Brussels, including meetings with Japanese Government and Embassy officials, and also on-the-spot investigations. On-the-spot investigations at the premises of the Big Four's subsidiaries in France, Germany and the United Kingdom (including NTN-GKN) took place in February and March 1977. They were followed in April 1977 by investigations at each of the Big Four's own premises in Japan. There was also in April an on-the-spot investigation at ISO's premises. The various investigations were carried out by antidumping specialists from the Commission and from certain of the Member States, who were reinforced in the case of the visit to Japan by a Commision accountant and an economist attached to the Commission's Delegation in Tokyo. All those meetings and visits create the impression of an investigation conducted with great thoroughness. Attempts made on behalf of some of the applicants to dispel that impression, to my mind, failed. I refrain from seeking even to summarize the kind of evidence obtained by the Commission in the course of the investigation. We were told of invoices, computer print-outs of prices, details of costs, audited accounts, and so forth. We were told also that it contributed to the existence now in Brussels of 135 files relating to this matter.

The maximum period of three months fixed by Regulation No 261/77 for the application of the provisional duty was due to end on 5 May 1977. It was clear that the ‘examination of the matter’ would not be completed by then. So, on 3 May 1977, pursuant to Article 16 (2) of Regulation No 459/68, the Council adopted Regulation (EEC) No 944/77 extending the provisional duty for a further three months, i.e. until 5 August 1977. It was a pre-condition of the exercise of that power that it should be ‘requested by the exporters and by the importers’. We were told at the hearing that it had been requested at least by the Big Four and by their European subsidiaries.

In May and June 1977 the Commission made calculations designed to enable it to determine definitively whether there had been dumping and, if so, what the margin of it was. One of the major issues in these cases arises from the fact that the Commission did not consider itself bound to disclose those calculations, or anything about them, to anyone; and did not do so.

I must at this point say something about the methods used by the Commission in calculating dumping margins, both for the purpose of its provisional findings, on which Regulation No 261/77 was based, and for the purpose of its definitive findings.

Firstly, because a very large number of different types of bearing of Japanese origin were sold in the Community (some 3500), it was impracticable to calculate dumping margins for all of them. So it was done for representative types. The representative types considered in the preliminary examination were the sixteen originally selected by the complainants. Wider samples, which provided the basis for the definitive determination of dumping, were selected during the on-the-spot investigations of the Big Four's European subsidiaries. These samples varied from firm to firm and as between Member States.

Secondly, the prices used by the Commission for the purposes of its calculations were, both in the case of export prices and in the case of domestic prices, weighted average prices, in other words for each product an average calculated by dividing the total amount obtained on sales by the total amount of units sold. This method was chosen because there were considerable price variations on individual transactions even in respect of the same product from the same supplier.

Thirdly, because of the ‘association’ between the Big Four and the European importers of most of their products, the Commission used the method of constructing export prices provided for in Article 3 (3) of Regulation No 459/68, i.e. it worked back from the prices at which the goods were first resold to an independent buyer within the Community. That the Commission was using that method was mentioned in the preamble to Regulation No 261/77 and was confirmed to the European subsidiaries of the Big Four when the on-the-spot investigations at their premises took place and they were asked for details of their costs and profits. Consistently, however, with its view that it was not bound to disclose its calculations, the Commission left them in the dark as to how it had used the figures they had supplied. This led to a particular complaint on the part of NSK at the hearing because, in its Rejoinder in Case 119/77, the Commission disclosed the percentage deductions that it had made for costs from the resale prices of each of NSK's subsidiaries. It was said on behalf of NSK that those percentages could not have been correctly calculated.

Fourthly, the comparison of export and domestic prices was in general made, at the ex-factory level, in respect of sales during the first half of 1976, which was referred to as ‘the base period’. (It was, Your Lordships remember, the period for which invoices had been requested in the Commission's letters of 10 November 1976). The Commission considered that that approach was consonant with the requirements of Article 3 (4) of Regulation No 459/68. In the calculations that it made in May and June 1977, however, the Commission, so it revealed in its Rejoinders in Cases 119/77 and 120/77, updated the domestic prices to January 1977. The reason for that adjustment, the Commission explained, was to ensure that any duty to be imposed should be related to the latest ascertainable margin of dumping and not to a margin that was already historical. None of the exporters or importers concerned were informed of the Commission's intention to make such an adjustment, nor was the Court given more than the vaguest indication of what it entailed. It seems that there was no corresponding adjustment to export prices. Before us it became an issue between NSK and the Commission whether such an adjustment should have been made.

The Commission also revealed in those Rejoinders that, in the calculations that it made in May and June, it made a further adjustment to the domestic prices, namely the addition of an amount representing a notional profit of 8 %. (In a limited number of cases an allowance for a notional profit was made in constructing export prices but never in constructing both export prices and the corresponding domestic prices). The Commission took the view that that was justified because press reports and the audited accounts of the Japanese manufacturers showed that they had persistently been trading at a loss. Persistent sales at a loss could not, the Commission considered, be regarded as ‘in the ordinary course of trade’ within the meaning of Article VI (1) of the GATT, Article 2 (d) of the Anti-Dumping Code and Article 3 (1) (a) of Regulation No 459/68. So the Commission concluded that it was entitled to ignore the actual home market prices and to do what it called ‘a cost of production exercise’ under Article 3 (2) of the Regulation. But since such an ‘exercise’ would have been impossible in the time, on the information that the Commission was able to obtain, it decided to assume that the home market prices covered costs of production, and it added the 8 % to them. The assumption that home market prices covered costs of production operated, the Commission said, in the Japanese manufacturers' favour. The rate of 8 % was calculated by reference to the profits earned in certain Japanese industries which the Commission regarded as ‘of the same general category’ as the bearings industry, namely the manufacture of springs, of chains and conveyors, and of conveyors alone. Whether the arguments put forward by the Commission in support of its interpretation of Article VI of the GATT, of Article 2 (d) of the Anti-Dumping Code and of Article 3 (2) of Regulation No 459/68 are good in law is a matter that I shall have to consider later in this Opinion. For the time being it is sufficient to record that, although the Japanese exporters were asked for information about their profits and losses, they were never told by the Commission that any amount representing a notional profit, let alone the specific figure of 8 %, was to be added to their weighted average prices either in their home market or in Community markets; nor was the comparability of the industries selected by the Commission for the purpose of establishing that figure discussed with them.

I return to the narrative.

There were also during May and June 1977 discussions about the possibility of the Japanese exporters giving undertakings to revise their prices. The Commission's submissions to the Court were couched in terms suggesting that the exporters were blameworthy in that they had not been willing to discuss that possibility until such a late stage in the investigation, but Article 14 (2) (c) of Regulation No 459/68 clearly prevents that fact from having any prejudicial consequences for them. The participants in the discussions were the Commission on the one hand and the Big Four and their subsidiaries, together with representatives of the Japanese Government and of the Japan Bearing Industrial Association, on the other. The possibility of undertakings being given by the minor Japanese exporters was discussed with the Association.

It seems that in the course of those discussions some at least of the Big Four were informed in general terms by Commission officials of the margins of dumping that had been calculated in respect of their exports. Thus we were told on behalf of NSK that, at a meeting on 25 May 1977 with representatives of NSK, officials of the Commission stated that the margin of dumping that they had found on exports by NSK to the Community varied between nil and 30 % according to type, with the average around 15 to 16 %. Counsel for KOYO told us that, at a meeting which he attended, a Commission official had said that the margin of dumping established in KOYO's case was 12.24 %. On the other hand it appears that none of the Big Four was given details of the margins of dumping found on its products, type by type. Much less would the Commission disclose how the margins had been calculated.

Before the Court it became a bone of contention between NSK and the Commission whether statements made by Commission officials during the discussions were such as to induce the exporters to believe that, if they gave acceptable undertakings, their products would not be subjected to any duty. In my opinion, that point can be left aside because, whatever may have been said, the exporters cannot reasonably have believed that the officials concerned were in a position to commit the Commission itself, not to mention the Council.

As a result of the discussions the Big Four signed undertakings on 20 June 1977.

On behalf of the minor Japanese exponers, the Japan Bearing Industrial Association informed the Commission by telex dated 1 July 1977 that they were willing to give undertakings in a form already agreed between the Association and the Commission's officials. Undertakings were given by the nine minor exporters and were dated 7 July 1977. Eight of them were sent to the Commission under cover of a letter dated 8 July 1977 and the ninth under cover of a letter dated 28 July 1977. We do not know the exact terms of any of them.

We do have before us, however, copies of the undertakings given by the Big Four. Each of them is expressed to be given ‘on behalf of the aforesaid Company and its subsidiaries and affiliates’. There is no material difference between them, though NACHI's undertaking differs in some respects from the others in so far as it relates to exports to France, in recognition presumably of ISO's independent status. Broadly speaking what each of the Big Four (and its subsidiaries and affiliates) undertook was this:

(1) Taking its prices in January 1977 as a starting point, to increase them in two steps, one starting on 5 February 1977 and to be completed by 30 June 1977, and the other starting not later than 1 July 1977 and to be completed by 31 December 1977, the increase being, at each step, of 10 %.

(2) To increase its prices in the last month of each half-year ‘by the percentage change in the Bank of Japan's Producer Price Index for Manufactured Goods — General Machinery and Precision Instruments’, the first such increase, reflecting the percentage change between June 1977 and December 1977, to be put into effect by the end of June 1978.

(3) Under clause 5 of each of the undertakings (except NACHI's where it is under clause 6), to take steps to ensure ‘a similar price development’ for bearings ‘of origin other than Japanese’.

(4) To supply to the Commission, at specified intervals, detailed information about its prices for the 100 most important types of bearings and to allow ‘whatever verification of such information is deemed necessary by the Commission’.

The undertakings were to come into effect ‘on notification by the Commission to the firm that they are considered acceptable’. They were to be ‘valid until 31 December 1978 renewable half-yearly by tacit agreement, unless either the Commission decides to withdraw its acceptance or the Company denounces them, on condition that twenty days' previous notice is given by the Company’.

Among the written questions put by the Court to the parties at the close of pleadings was one designed to elucidate how it was envisaged that undertakings given on 20 June 1977 would affect prices charged on sales taking place between 5 February and 20 June 1977. In answer to that question, the Commission said that it did not envisage that the undertakings could affect prices already charged on sales that had taken place between 5 February and 20 June 1977 but that it accepted that any price increases made between 5 February and 30 June 1977 should be considered as ‘conforming with the first step of the undertaking’. The Big Four explained more fully that each of them had been striving in the first half of 1977 to increase its prices in so far as national price controls, existing contracts and customer resistance permitted. NACHI had announced a first increase of 5 % taking effect on 1 January 1977. In February it announced an increase of 12 %. KOYO initiated increases in February, related to the imposition of the provisional duty. NTN and NSK followed suit, instructing their European subsidiaries to increase prices by 10 % in March and April respectively. The Commission was, the Big Four said, aware of those facts and the undertakings reflected a consensus between them and the Commission that the price increases effected by them in the first half of 1977 should count towards the aggregate increase of 20 % that was to be achieved by 31 December 1977.

NSK objected strongly to the terms of clause 5 of its undertaking, because they applied to bearings manufactured by NSK UK at Peterlee, i.e. within the Community. NSK had sought to have the draft of the undertaking (prepared by the Commission) modified in that respect, but the Commission had insisted that the clause should stand. It was explained to us on behalf of the Council and of the Commission that the object of such a clause was to prevent a manufacturer with production capacity outside Japan from evading his undertaking by switching sources of supply; it was added that, without the clause, NSK's undertaking would have been unacceptable, because incapable of being policed.

On 21 June 1977 (the day after the signing of the Big Four's undertakings) there was a meeting of the Advisory Committee, following which the Commission decided to propose to the Council that the Big Four's undertakings should be accepted, that a definitive antidumping duty at the rate of 15 % should be imposed on ball bearings and roller bearings (but not parts thereof) originating in Japan, that that duty should be suspended so long as the Big Four's undertakings were observed, and that the amounts secured by way of provisional duty on products of the Big, Four, but not on those of the minor exporters, should be definitively collected to the extent to which they did, not exceed 15 %. On 4 July 1977 the Commission sent to the Council a formal Proposal for a Council Regulation having that effect.

I have already mentioned certain revelations that were made by the Commission for the first time in its Rejoinders in Cases 119/77 and 120/77. A further such revelation was that, after it had sent its Proposal to the Council, but before the Council acted on it, the Commission made a further series of what it described as ‘verifying calculations’. What those calculations consisted in, we do not know.

In argument before us much was made on behalf of NSK of a particular incident, also revealed for the first time in the Commission's Rejoinders in Cases 119/77 and 120/77, that occurred during that period. On 8 July 1977 the Commission's Delegation in Tokyo sent to it summary translations of Japanese press reports about an increase in domestic prices that had been made by the Big Four in 1976, and in particular of a speech by Mr Otsu, the President of NTN and of the Japanese Bearing Industrial Association, suggesting that that increase, averaging 6 to 8 %, which the Commission had previously believed to have taken effect in July 1976, i.e. outside the base period, had in fact been applied, for the most part, as from January 1976. The Commission took the view that the retroactive element in that price increase ought to have been disclosed by the Japanese manufacturers, but it did not discuss the matter with them. Instead it used the information contained in those press reports for the purpose of ‘verifying calculations’ purportedly made under Article 10 (7) (b) of Regulation No 459/68, which relates to ‘cases in which any interested party withholds the necessary information’. Those calculations were, it seems, distinct from the verifying calculations that I mentioned a moment ago. On behalf of NSK we were told that, if the Commission had discussed the matter with them, it would have found that the retroactive price increase was made in April 1976 and that it applied only to a small proportion of the bearings in the representative sample (because it related mostly to bearings of a kind supplied to the Japanese motor industry and not exponed to Europe) its effect being to raise the overall average of prices in the base period for the types in that sample by about one-half of 1 %; and that the increases for May and June had been included in the computer print-outs relating to those months. In the event, the Commission's Proposal to the Council was not changed as a result of that incident.

On 24 July 1977 the Council adopted Regulation No 1778/77 the terms of which did not, save in one respect, materially differ from what had been proposed by the Commission. The Regulation entered into force on 4 August 1977, which was the day following its publication in the Official Journal. Counsel for NSK suggested at the hearing that there may have been improper motives for the delay in publication, which prolonged the period of application of the provisional duty. There was however no evidence to support that suggestion. The delay may have been due to delays in translation.

On the same day as the Regulation was published (3 August 1977) the Commission sent telexes to the Big Four notifying them that their undertakings had been accepted.

There was much argument before us about the contents of the preamble to Regulation No 1778/77. Nonetheless I do not propose to examine that preamble in detail at this stage. I confine myself to mentioning that the only information it gives about the Commission's findings on the question of dumping is that contained in the 12th recital, which is in these terms.

‘Whereas this examination of the matter shows that dumping has taken place, the margin of which varies considerably from transaction to transaction but, on the average, exceeds 15 % in the major part of the Community.’

(The preamble to Regulation No 261/77 had been no more explicit on the subject, recording only that ‘preliminary examination of the matter shows that dumping has taken place, the margin of which varies considerably from one transaction to another and in several cases exceeds 30 %’). The Commission's findings on the question of injury are much more fully set out in the preambles to both Regulations.

A curious feature of the 12th recital to Regulation No 1778/77 is the use of the phrase ‘the major part of the Community’ which at first sight would seem to mean more than half of it. That is however clearly not the sense in which the phrase was understood by the Commission, which submitted that any one or more of France, Germany and the United Kingdom would constitute such a part. The Council said that the phrase ‘a major part’ rather than ‘the major part’ was obviously intended. Indeed that is the phrase used in the Italian text of the Regulation, which has ‘per gran parte della Comunità’.

Articles 1, 2 and 3 of Regulation No 1778/77 are of such central importance in these cases that I must cite them almost verbatim:

‘Article 1

1. A definitive anti-dumping duty of 15 % is hereby imposed on the following goods, falling within heading No ex 84.62 of the Common Customs Tariff, originating in Japan, on the basis of the value declared …

— ball bearings (NIMEXE code 84.62-11),

— tapered roller bearings (NIMEXE code 84.62-17).

The provisions in force for the collection of customs duties shall apply for the collection of this duty.

2. The application of this duty is hereby suspended without prejudice to Article 2 hereof.

Article 2

1. The Commission shall, in collaboration with the Member States, closely monitor the observance of the undertakings given by the major Japanese roller bearings producers to revise their prices and shall keep a close watch on import trends and developments on the Community market.

2. If the Commission finds that these undertakings are being evaded, are not being observed or have been withdrawn, it shall forthwith, after consulting the Member States within the Advisory Committee provided for in Article 12 of Regulation (EEC) No 459/68, convened within a period of five days, terminate the suspension of the application of the duty imposed under Article 1 hereof.

Article 3

The amounts secured by way of provisional duty under the provisions of Regulation (EEC) No 261/77 extended by Regulation (EEC) No 944/77, in respect of products manufactured and exponed by the following producers, shall be definitively collected to the extent that they do not exceed the rate of duty fixed in this Regulation”:

and then the Big Four are named.

Those provisions call for two immediate comments.

The first relates to the scope of application of the Regulation. Article 3 of course applies only to the products of the Big Four. It was explained to us on behalf of the Council and of the Commission that that was because the injury caused to the European industry by the minor Japanese exporters was considered to have been negligible. But, if it was negligible, that-fact precluded the imposition of a definitive duty (albeit suspended) on the products of the minor exporters, just as much as it precluded the definitive collection of the provisional duty on their products. There was no suggestion that, in their case, the imposition of a definitive duty was justified by a “threat of injury”, nor indeed does the preamble to the Regulation anywhere refer to a threat of injury. It refers only to “existing injury” and injury that “has been caused”. It follows, in my opinion, that not only Article 3 of the Regulation, but Articles 1 and 2 also (despite their unqualified terms) can apply only to the products of the Big Four.

My second comment relates to the nature of the power or obligation of the Commission under Article 2 (2). In the Commission's Proposal of 4 July 1977, the text of Article 2 (2) was such that the Commission would have been bound to terminate the suspension of the application of the duty (in the event of evasion, non-observance or withdrawal of the undertakings) only if, after consulting the Member States, it concluded that protective measures were necessary. In the text of Article 2 (2) actually adopted by the Council, the wording was changed. It was provided that (in such an event) the Commission should, after consulting the Member States within the Advisory Committee, “forthwith … terminate the suspension of the application of the duty”. So it looks as though the Council deliberately decided that the Commission should have no discretion in the matter. Such a decision would be consistent with the provisions of Regulation No 459/68, none of which envisage that the Commission should exercise any discretion as to the imposition of a definitive duty.

VI — The present actions and the claims made in them

There are five actions now before the Court, all of which were brought in September or October 1977, namely.

Case 113/77:

This is an action by NTN, NTN Germany, NTN France, and NTN-GKN. Originally the action was described rather vaguely as brought by NTN “acting on its own behalf and on behalf of its subsidiaries and affiliates in the Common Market”.

The point was taken on behalf of the Council that such a vague description of the Applicants made the action inadmissible. That flaw was however cured in the early stages of the action when it was made clear that the subsidiaries and affiliates in question of NTN were those I have mentioned.

The only Defendant in this action is the Council. The only claim made in it is a claim under the second paragraph of Article 173 of the Treaty for a declaration that Article 3 of Regulation No 1778/77 “is inapplicable” to the Applicants — which, I apprehend, having regard to the wording of Article 174 of the Treaty, should be taken to mean a declaration that Article 3 is void.

Case 118/77:

This action is brought by ISO alone against the Council alone. ISO claims, under the second paragraph of Article 173, a declaration that the whole of Regulation No 1778/77 is void.

Case 119/77:

This is an action brought by NSK, NSK-UK, NSK Germany and NSK France against both the Council and the Commission. It is, of the five actions, that in which the claims are the most elaborate. At this stage I think it enough to say that they comprise, on the one hand, claims under the second paragraph of Article 173 going to the validity of the whole of Regulation No 1778/77 and (as I indicated at the outset) claims under Article 178 of the Treaty for compensation for damage. I propose, in this Opinion, to defer consideration of the latter claims until after I have entirely dealt with all the claims under Article 173.

Case 120/77:

This action is brought by KOYO, Deutsche Koyo, Koyo UK and Koyo France against both the Council and the Commission. The only claim is for a declaration that Regulation No 1778/77 (the whole of it) is void. One wonders why, that being so, the Commission was made a Defendant. However, the Commission has taken no objection to this and, since it is a matter of no practical importance — because the Commission could plainly have intervened in any of these actions in which it was not made a Defendant — I say no more about it.

Case 121/77:

This, the last of the actions, is brought under the second paragraph of Article 173 by NACHI, Nachi Deutschland and Nachi UK against the Council for a declaration that Regulation No 1778/77 is void or, in the alternative, a declaration that Article 3 of it is void.

In three of the actions (113/77, 119/77 and 121/77) there were applications for interim measures as a result of which my Lord the President ordered in effect the suspension, until the final judgment, of the collection under Article 3 of Regulation No 1778/77 of the provisional duty assessed on, but not yet paid by, Applicants in those actions so long as they continued to provide security for it.

In each of the actions the FEBMA has, by Order of the Court, been allowed to intervene in support of the Defendants.

Also in each of the actions preliminary objections to admissibility were lodged under Article 91 of the Rules of Procedure of the Court by the Defendants. By Orders dated 12 April 1978 the Court reserved its decision on the issues thus raised for the final judgment.

So I must now consider to what extent, if any, the claims made under the second paragraph of Article 173 of the Treaty are admissible.

VII — Admissibility of the claims under Article 173

On behalf of the Council it was contended that, anti-dumping measures being measures of commercial policy directed against undertakings outside the Community, such measures ought not to be regarded as open to review by this Court in the same way as individual administrative acts. The Council referred to the anti-dumping laws of Member States before anti-dumping became a Community matter and said that those laws “reflected the legislative and discretionary character of anti-dumping duties”, in contrast to the corresponding laws of the USA, which, if I understood the contention correctly, provide for administrative procedures open to judicial review.

To my mind the Applicants countered that contention convincingly when they analysed the legal position in each of the Member States before anti-dumping became a Community matter, and in particular when they cited the Judgment of the French Conseil d'État in the case of the Manufacture de Produits Chimiques de Tournon and the Judgment of Ackner J. in the Queen's Bench Division of the High Court of Justice of England in Leopold Lazarus Ltd v Secretary of State for Trade and Industry. (The texts of both those Judgments are to be found at Annex 1 to the Applicants' Answer to the Preliminary Objections of the Defendants as to Admissibility in Case 119/77).

In my opinion, however, tins Court ought not to concern itself overmuch with what the law may formerly have been in individual Member States, or with what it may be in the USA. Our duty is simply to give effect to Article 173 of the Treaty. As to that, it is clear that a person other than a Member State or a Community Institution, in order to be entitled, under the second paragraph of Article 173, to challenge the legality of an act of a Community Institution in the form of a regulation, must satisfy three conditions:

(1) he must be able to show that, although in that form, the act is really (at all events in so far as it concerns him) a decision;

(2) he must be able to show that it concerns him directly; and

(3) he must be able to show that it concerns him individually.

It was argued on behalf of some of the Applicants that certain Judgments of this Court, in particular those in Case 100/74 CAM v Commission [1975] 2 ECR 1393 and in Case 88/76 Société pour l'Exportation des Sucres v Commission [1977] ECR 709, were authority for the view that it was enough if an applicant satisfied conditions (2) and (3). I can see that those Judgments, if looked at in isolation, are susceptible of being interpreted in that sense. But in my opinion it is not permissible to look at them in isolation. They must be interpreted consistently with earlier and later authorities that show that condition (1) is important. The earlier authorities to that effect I collected in my Opinion in CAM v Commission (see [1975] 2 ECR at p. 1411). Later ones include Case 101/76 Koninklijke Scholten Honig v Council and Commission [1977] ECR 797 and Cases 103 — 109/78 Société des Usines de Beaufort v Council (18 January 1979, not yet reported).

In truth I think that CAM v Commission and Société pour l'Exportation des Sucres v Commission were rather special cases. In each of them the act of the Commission that was in question determined the effect of certificates fixing export refunds in advance that had been embodied in export licences obtained between specified dates. That being so that act, although in the form of a regulation, could readily be regarded as constituting a series (or ‘bundle’) of individual decisions as to the fate of those particular licences, and so as being analogous to the act that was in question in Cases 41 to 44/70 the International Fruit Co. case [1971] ECR 411. That indeed is how Mr Advocate General Reischl saw the act in question in Société pour l'Exportation des Sucres v Commission (see [1977] ECR at p. 730).

With those principles in mind I turn to Regulation No 1778/77.

For present purposes the Applicants seem to me to fall into three categories:

(1) The Big Four;

(2) Subsidiaries and affiliates of the Big Four; and

(3) ISO.

I will deal first with ISO.

ISO, which is an independent company not bound by any undertaking given to the Commission, is to my mind in no different a position under Regulation No 1778/77 from that of any other independent importer into the Community of products of the Big Four.

In my opinion that Regulation, in so far as it affects such independent importers, is precisely what it purports to be: a regulation and nothing else.

As regards Articles 1 and 2 of the Regulation that seems to me to be clear beyond question. Those Articles are capable of affecting anyone who may in the future import into the Community bearings to which the Regulation applies. In no way do they single out any particular importer or category of importers of such bearings.

Article 3 presents a more difficult problem. There is no doubt that that Article is of individual concern to a closed class of importers, namely those who, between 5 February 1977 and 4 August 1977, imported into the Community products manufactured by the Big Four and who, by virtue of Regulation No 261/77 (or by virtue of that Regulation as extended by Regulation No 944/77), were assessed to provisional duty on those imports and gave security for the amounts so assessed. Nor is there any doubt that Article 3 concerns those importers directly, for its effect is to require the customs authorities of the Member States to collect the amounts of duty so assessed and secured, without leaving any discretion to those authorities. But can it be said that Article 3 constitutes by its nature, in so far as it thus affects those importers, a series of decisions rather than a legislative measure? I think not. It seems to me to be a typical example of what I referred to in my Opinion in CAM v Commission as ‘legislation affecting a closed class’ [1975] 2 ECR at p. 1413). To my mind it would be odd if it were to be held that, in any anti-dumping case, the decision to impose a provisional duty was of a legislative nature, the decision to impose a definitive duty was of a legislative nature, but the decision to collect the provisional duty was not of a legislative nature. Moreover that odd conclusion would have this odd result that an importer who wished to challenge the validity of the collection from him of a definitive duty could do so only in the appropriate national court, whereas an importer who wished to challenge the validity of the collection from him of a provisional duty would have the choice of doing so either in the appropriate national court or by means of a direct action in this Court.

I conclude that ISO's action (Case 118/77) is inadmissible.

I do not overlook that, in one of the cases at least (Case 119/77), an attempt was made on behalf of the Applicants to demonstrate that the remedies available to importers in the relevant national courts was inadequate. But it seems to me that that attempt failed.

As regards the remedies available in the Federal Republic of Germany, the only criticism made seemed to be that the relevant period of limitation was very short (one month). That is of course something with which Your Lordships are familiar from other cases. It is not a reason for stretching the meaning of Article 173 so as to afford an alternative remedy in this Court.

The same applies as regards the only criticism that seemed to be made of the position in France, which was, not that the remedies available there were in themselves inadequate, but that, in the view of those Applicants, French appellate procedures are cumbersome.

Lastly, the Applicants' treatment of English law was, to say the least, sketchy. Among its shortcomings was its failure to mention what I should have thought was the most obvious remedy available in the English courts, namely an action for a declaration. That indeed was the remedy invoked in Leopold Lazarus Ltd v Secretary of State for Trade and Industry. Nor, although the Applicants purported to be dealing with the position in the whole of the United Kingdom, did they condescend to discuss the remedies available in Scottish courts.

The position of the Big Four themselves, in relation to Regulation No 1778/77, seems to me different. It is unlikely to be possible for any of them to challenge its validity, or the validity of any part of it, in a national court, unless it be, perhaps, under some national procedures, as an intervener, or, under others, as a person merely supporting, financially or otherwise, proceedings brought by an importer.

It does not of course follow from that alone that the Big Four (and each of them) must be held entitled to challenge the Regulation directly in this Court under the second paragraph of Article 173.

Nor do I think it necessary for Your Lordships to decide in this case the question, which was extensively argued, whether an exporter who has, as a result of an examination carried out under Article 10 of Regulation No 459/68, been found guilty of dumping leading to material injury to a Community industry, ought ipso facto to be held entitled to challenge, under the second paragraph of Article 173, any act of the Council or of the Commission embodying or giving effect to that finding. The arguments for and against an affirmative answer to that question are nicely balanced.

What seems to me evident is that, in relation to each of the Big Four, Regulation No 1778/77 goes further than that. For the reasons that I have already explained, each of its Articles applies only to their products. So the combined effect of Articles 1, 2 and 3 of the Regulation is that, on the twin bases of the findings of dumping leading to material injury made against each of the Big Four and of the undertakings given by each of them, a definitive duty on their products is