Opinion of Mr Advocate General Mischo delivered on 13 March 1991. - Bureau Européen des Unions de Consommateurs v Commission of the European Communities. - Anti-dumping proceeding - Right to inspect the Commission's non-confidential file. - Case C-170/89.



European Court reports 1991 Page I-05709

Swedish special edition Page I-00495

Finnish special edition Page I-00525



Opinion of the Advocate-General

++++

Mr President,

Members of the Court,

1. The application submitted by the Bureau Européen des Unions de Consommateurs (hereinafter referred to as "the BEUC"), with which this Opinion will deal, seeks a declaration that a letter of the Commission dated 15 March 1989 is void. I think it would be useful to set out that letter in full:

"In reply to your facsimile message dated 13 March 1989, I am sorry to let you know that, according to Article 7(4)(a) of Council Regulation No 2423/88, the right to inspect the Commission' s file and information made available by any party is reserved to the complainants, exporters and importers known to be concerned as well as the representatives of the exporting countries. Accordingly, I cannot agree to your request.

However, it might be useful that your organization make known the view of the consumers in this proceeding to the Commission' s services; in this context, we are prepared to take into account any written submission from you, as well as to give you the opportunity to be heard orally."

2. The provision to which the Commission expressly referred, namely Article 7(4)(a) of Council Regulation (EEC) No 2423/88 of 11 July 1988 on protection against dumped or subsidized imports from countries not members of the European Economic Community (hereinafter referred to as "the basic regulation"), (1) is worded as follows:

"The complainant and the importers and exporters known to be concerned, as well as the representatives of the exporting country, may inspect all information made available to the Commission by any party to an investigation as distinct from internal documents prepared by the authorities of the Community or its Member States, provided that it is relevant to the defence of their interests and not confidential within the meaning of Article 8 and that it is used by the Commission in the investigation. To this end, they shall address a written request to the Commission indicating the information required."

3. The Commission' s letter is the reply to a written request which the BEUC had made on 13 March 1989, following the publication of the notice of initiation of an anti-dumping proceeding concerning certain imports of audio cassettes and audio cassette tapes originating in Japan, the Republic of Korea and Hong Kong, (2) in which the Commission, pursuant to Article 7(1)(a) of the basic regulation, had called upon interested parties to make known their views in writing and, in appropriate cases, to request a hearing not later than 30 days following the date of publication of the notice.

4. The BEUC claims that Article 7(4)(a) of the basic regulation does not prevent the Commission from acceding to its request to inspect the non-confidential documents, and it further claims that, if it did have that effect, it is illegal and must therefore be declared inapplicable in accordance with Article 184 of the Treaty. In support of its case it relies as its main argument upon the existence of a fundamental principle of Community law which requires that

"before any individual measure or decision is taken of such a nature as directly to affect the interests of a particular person, that person has a right to be heard by the responsible authority".

It is part and parcel of that principle that

"in order to enable him effectively to exercise that right, the person concerned is entitled to be informed of the facts and considerations on the basis of which the authority is minded to act".

In the alternative, the BEUC argues that, by denying it access to the non-confidential documents, the Commission has failed to observe the principle of good administration and the principle that the rules of Community law and procedure must be applied in a coherent fashion.

Admissibility

5. In the first place, the Commission contests the admissibility of the application on the ground that its letter of 15 March 1989 does not constitute a decision against which an action for annulment may lie but merely a communication of information about the prevailing legal situation. The Commission refers to the case-law of the Court, according to which an act cannot be challenged under Article 173 of the Treaty unless it is

"a measure producing legal effects of such a kind as to affect the applicant' s interests by clearly altering its legal position". (3)

6. However, it must be observed that the question whether the contested letter produced legal effects affecting the interests of the BEUC by altering its legal position cannot be divorced from an examination of the precise scope of the provision of Community law at issue: if the BEUC' s argument proved to be right, there would be no doubt that the Commission' s letter would have produced legal effects in its regard by not allowing it to enjoy a right provided for by Community law. I therefore consider it appropriate to go on to consider the substance of the case.

Observance of the right to be heard

7. It became clear in the course of the hearing that the fundamental principle on which the BEUC intended to rely was the observance of the right to be heard, which the Court has held to be a fundamental principle of Community law. (4)

8. In its judgments of 10 July 1986 in Cases 234/84 and 40/85 Belgium v Commission [1986] ECR 2263 and 2321, the Court reiterated, at paragraphs 27 and 28 respectively, that

"observance of the right to be heard is, in all proceedings initiated against a person which are liable to culminate in a measure adversely affecting that person, a fundamental principle of Community law which must be guaranteed even in the absence of any rules governing the procedure in question".

It went on:

"The Court has consistently held that, in order to respect the principle of the right to be heard, the person against whom an administrative procedure has been initiated must have been afforded the opportunity, during that procedure, to make known his views on the truth and relevance of the facts and circumstances alleged and on the documents used by the Commission to support its claim that there has been an infringement of Community law."

9. In the present case, however, the anti-dumping proceeding was not initiated "against" the BEUC and is not liable to culminate in a measure "adversely affecting" it. There are therefore no documents which the Commission could consider using in support of any allegation relating to any infringement of Community law by the BEUC. The conclusion to be drawn is therefore, first, that the BEUC cannot effectively claim a right to be heard, in the strict sense of that concept, and secondly, that Article 7(4)(a) of the basic regulation does not fly in the face of the right to be heard by not obliging the Commission to communicate non-confidential documents to bodies such as the BEUC.

10. It must also be observed that the BEUC' s line of argument follows its own peculiar logic. Having stated unambiguously in paragraph 24 of its application that the fundamental principle on which it relies, and which it has taken from the Opinion of Mr Advocate General Warner in Case 113/77 (NTN Toyo Bearing v Council [1979] ECR 1212, at p. 1261), was put into effect by Article 7(4)(b) of the basic regulation which, in an anti-dumping proceeding, restricts to exporters and importers the right to be

"informed of the essential facts and considerations on the basis of which it is intended to recommend the imposition of definitive duties or the definitive collection of amounts secured by way of provisional duty",

it goes on to argue, in paragraph 28 of its application, that

"The right to be informed of the case against one cannot be limited to information as to the final case formulated by the Commission at the conclusion of the investigation",

before finally concluding, in paragraph 31 of its application, that any interested party - not only the complainant, importers and exporters - must have the right, provided for in Article 7(4)(a) of the basic regulation, to inspect any document whatever in the non-confidential file at any stage of the proceeding.

11. Perhaps it was because the BEUC sensed that its position was not covered by the right to be heard sensu stricto that it tried to widen the argument by maintaining that, in order to be able to rely on the fundamental principle, it had to show that the adoption of an anti-dumping measure relating to imports of audio cassettes and audio cassette tapes originating in Japan, the Republic of Korea and Hong Kong, would be an individual measure likely to affect its interests directly. For this purpose, it relies principally upon Articles 11(1) and 12(1) of the basic regulation, which make the imposition of provisional or definitive anti-dumping duties subject to the condition that "the interests of the Community call for intervention", and it asserts that, since consumers' interests form part of the Community' s interests, the Commission cannot properly ascertain the Community interest without allowing consumers to expound and defend their legitimate interests in the course of the proceeding.

12. Yet even if in the present case - which does not concern the admissibility of an action brought by a natural or legal person against a decision not addressed to it - we disregard the judgments of the Court holding that an organization created to protect the collective interests of a given category of persons cannot be considered to be individually concerned by a measure affecting the general interests of that category, (5) the fact remains that BEUC' s line of argument to the effect that its interests are directly affected is a circular one. (6) The BEUC bases its supposed right to intervene in the procedure and to have access to the documents on a line of decided cases in which the Court in fact treats the existence of such a right on the part of a person or the fact that that person played a decisive role in the procedure as an essential condition for his legitimate interests to be directly affected. In its judgment of 28 January 1986 in Case 169/84 (Cofaz v Commission [1986] ECR 391, at paragraphs 23 and 24), the Court recalled that case-law in the following terms:

"... the Court has repeatedly held that where a regulation accords applicant undertakings procedural guarantees entitling them to request the Commission to find an infringement of Community rules, those undertakings should be able to institute proceedings in order to protect their legitimate interests (judgments of 25 October 1977 in Case 26/76 Metro v Commission [1977] ECR 1875, 5 October 1983 in Case 191/82 Fediol v Commission [1983] ECR 2913, and 11 October 1983 in Case 210/81 Demo-Studio Schmidt v Commission [1983] ECR 3045).

In its judgment of 20 March 1985 in Case 264/82 (Timex Corporation v Council and Commission [1985] ECR 849) the Court pointed out that it was necessary to examine in that regard the part played by the undertaking in the administrative proceedings. The Court accepted as evidence that the measure in question was of concern to the undertaking, within the meaning of the second paragraph of Article 173 of the EEC Treaty, the fact that the undertaking was at the origin of the complaint which led to the opening of the investigation procedure, the fact that its views were heard during that procedure and the fact that the conduct of the procedure was largely determined by its observations."

13. Quite apart from the fact that the BEUC is not acting as a complainant, I take view that it cannot therefore rely on that case-law in order to claim the right to take an active part in the anti-dumping proceeding.

14. The same is true of the judgment of 2 February 1988 in Joined Cases 67, 68 and 70/85 (Van der Kooy and Others v Commission [1988] ECR 219), cited by the BEUC in support of its assertion that

"there are circumstances in which the Court will consider that an association representing collective interests can be directly and individually concerned by a proceeding which requires the Commission to take a decision after having weighed up the interests of various parties" (see the last paragraph on page 8 of the typescript text of the Report for the Hearing).

However, as the BEUC itself acknowledged, the Court found in Van der Kooy that a Commission decision adopted on the basis of Article 93 of the Treaty was of direct and individual concern to the Landbouwschap, because it had negotiated tariffs for natural gas on behalf of growers, had taken an active part in the procedure under Article 92(3) of the Treaty and had signed the contract establishing the tariff disallowed by the Commission.

15. The BEUC has not proved that in the present case its position was substantially the same. In particular, as far as its participation in the proceeding is concerned, it merely claims a role comparable to that actually played by the Landbouwschap, since it never performed such a role.

16. It may therefore be concluded, with regard to Article 7(4)(a), that it does not oblige the Commission to allow an organization having the characteristics of the BEUC to "have access to the non-confidential file and information made available by any party" in an anti-dumping proceeding.

17. I do, however, agree with the BEUC that Article 7(4)(a) does not prevent the Commission from making available to it non-confidential documents. It follows that the Commission cannot be criticized for giving the BEUC a copy of the non-confidential version of the complaint, as the BEUC recounts at paragraph 10 of its application.

The right to be heard and its consequences

18. In its reply, the BEUC further argues that it has the right to be heard, and hence to receive the documents on the file pursuant to Article 7(5) of the basic regulation, which provides as follows:

"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 knowing that they are an interested party likely to be affected by the result of the proceeding and that there are particular reasons why they should be heard orally."

However, the BEUC confirmed at the hearing that it continues to base its application on the fundamental principle cited earlier, and that it relied on Article 7(5) only in response to the Commission' s assertion in its defence that the applicant was at most an "interested party", within the meaning of the first sentence of Article 7(5), whom the Commission may hear.

19. Indeed, BEUC' s formal conclusions refer only to the disclosure of documents as provided for by Article 7(4)(a) of the basic regulation and not to any obligation of disclosure which would arise from the right to be heard under Article 7(5).

20. In the alternative, I take the view in any event that the BEUC has not succeeded in demonstrating during these proceedings that it should have been considered an "interested party likely to be affected by the result of the proceeding" or that there were "particular reasons why [it] should be heard orally".

21. In the first place, the argument that the BEUC falls within the category of persons envisaged by Article 7(5) on the ground that it is directly and individually concerned by the anti-dumping proceeding cannot be accepted for the reasons set out above.

22. Furthermore, the fact that by virtue of Article 2 of its Statutes the declared object of the BEUC is to put forward the views of its members (national consumer organizations) and that its very existence stems from its ability effectively to represent the interests of consumers before the Community institutions is not such as to demonstrate that it is concerned by the result of an anti-dumping proceeding conducted by the Commission. The fact that representatives of the BEUC sit on the Consumers' Consultative Committee set up by Commission Decision 73/306/EEC of 25 September 1973 (Official Journal 1973 L 283, p. 18), as amended in particular by Decision 80/1087/EEC of 16 October 1980 (Official Journal 1980 L 320, p. 33) is immaterial: the task of that Committee, whose members are appointed by the Commission and which is convened by the Commission, is

"... to represent consumer interests to the Commission and to advise the Commission on the formulation and implementation of policies and actions regarding consumer protection and information ..." (Article 2).

These do not cover the measures adopted by the Commission pursuant to anti-dumping legislation, which falls within the domain of commercial policy.

23. Moreover, the point that individual consumers are too weak to represent their interests before Community institutions does not in my view amount to a "particular reason" for the purposes of Article 7(5) of the basic regulation such as to entitle BEUC to be heard in this case: in my opinion, a "particular reason" within the meaning of that provision means only a reason specific to the anti-dumping proceeding in question and not quite general reasons valid for any procedure, irrespective of its purpose.

24. Lastly, I am convinced that the right to be heard under Article 7(5) does not comprise a right of access to the complete non-confidential file held by the Commission, as the BEUC claims. In the first place, even Article 7(4)(a), of which the BEUC wishes to avail itself, only provides for the disclosure of such of the non-confidential documents as are relevant to the defence of the interests of those concerned and are used by the Commission in the investigation and Article 7(5) cannot create still broader rights. No argument to the contrary can be derived from the judgment of 20 March 1985 in Case 264/82 (Timex Corporation v Council and Commission [1985] ECR 849). Although the Court gave a broad interpretation of Article 7(4)(a) in that judgment, concluding that

"all non-confidential information, whether supplied by a Community undertaking or an undertaking in a non-member country, ... must be made available to the complainant requesting it",

it nevertheless made clear that the information in question must be information

"which has been used by the Commission during its investigation and which has had a decisive influence on its decision regarding the anti-dumping duty" (paragraph 25).

In the second place, the Timex judgment was not concerned with determining the parties entitled to access to the documents in question but with identifying the "parties to the investigation" whose information, once provided, must be disclosed to the parties entitled to access and in particular to the complainants: it was for the purpose of ensuring that those complainants can put forward their views effectively that the Court held that they must also have access to information made available by traders established in a non-member country who are not the subject of the investigation.

25. Lastly, in this context it may be worth making a brief incursion into the field of competition law, although the investigation procedure established by Regulation No 17 of the Council (7) is not comparable in all respects to an anti-dumping proceeding. In its judgment of 17 January 1984 in Joined Cases 43 and 63/82 (VBVB and VBBB v Commission [1984] ECR 19, at paragraph 25), the Court expressly held that

"although regard for the rights of the defence requires that the undertaking concerned [in that case, the undertakings against which the proceeding had been initiated] shall have been enabled to make known effectively its point of view on the documents relied upon by the Commission in making the findings on which its decision is based, there are no provisions which require the Commission to divulge the contents of its files to the parties concerned."

Furthermore, it is clear from the judgment of the Court of 17 November 1987 in Joined Cases 142 and 156/84 (BAT and Reynolds v Commission [1987] ECR 4487) that an investigation carried out by the Commission in fulfilment of its duty to ensure that the rules on competition are observed does not constitute adversary proceedings between the complainants, on the one hand, and the companies against which the proceedings were commenced, on the other (see paragraph 19). The Court went on to reiterate (paragraph 20) that

"the procedural rights of the complainants are not as far-reaching as the right to a fair hearing of the companies which are the object of the Commission' s investigation"

and that

"In any event, the limits of such rights are reached where they begin to interfere with those companies' right to a fair hearing".

The same must apply a fortiori when the persons in question are not complainants but merely interested parties (on the assumption that this is the case with the BEUC).

26. Furthermore, I consider that there is no reason for not applying those principles to a procedure of the type set up by Regulation No 2423/88, which is usually set in motion by complainants. Apart from the fact that, by virtue of a general principle which applies during the whole course of an administrative procedure, (8) interested parties other than complainants cannot - any more than the complainants - have access to documents containing business secrets, it seems to me that, at the very least, it may be inferred from those principles that to deny an interested party access to all the non-confidential documents belonging to the investigation, including those which may have no bearing on that party' s interests, is not a breach of any right of the defence or of any legitimate interests.

27. My conclusion from the foregoing is that, even if the BEUC should have been regarded as an "interested party likely to be affected by the result of the proceeding" for the purposes of Article 7(5) of the basic regulation, it could not infer from that circumstance the right claimed in its conclusions, namely

"to inspect the Commission' s non-confidential file and information made available by any party in the anti-dumping proceeding concerning imports of audio cassettes and tapes from Japan, the Republic of Korea and Hong Kong".

28. Since this case is a direct action and since the BEUC' s conclusions are worded as set out above, it is not necessary for the Court to resolve the question whether an interested party having the right to be heard also has, by virtue of that right, the right to inspect certain specific documents on the Commission' s file (as opposed to the non-confidential file in its entirety).

29. It is therefore only on a purely alternative basis that I would make these few observations.

30. There must be a difference between the parties referred to in Article 7(4)(a) and those referred to in Article 7(5). The former are the complainants and the importers and exporters manifestly concerned. These are entitled to inspect only the information relevant to the defence of their interests. It follows, in my view, that the importers and exporters not manifestly concerned do not have that right, no doubt because their interests are not affected so directly. Yet consumer protection organizations are even less immediately concerned than those importers and exporters. They cannot therefore have more rights than them.

31. In order for the consultation of the "interested [parties] likely to be affected by the result of the proceeding" to be as effective as possible, the Commission may indeed see fit to submit a document to them. That was what the Commission did in this case. In my opinion, however, it was acting by virtue of a discretion.

32. Incidentally, the complaint was probably the document on which a consumer-protection organization was best qualified to submit its comments. It is usually in the complaint that one finds the information on price charges and sales of products manufactured in the Community and on the Community' s competitive standing in the market, which are the points on which the BEUC claimed in its application (paragraphs 11 to 14) to be in a position to make significant contributions to the investigation. It is a priori most unlikely that such an organization will be in a position to provide information on the existence of dumping, that is to say, on the question whether the export price to the Community of the product under consideration is less than the normal value of the like product (Article 2(2) of the basic regulation). Contrary to what the BEUC appears to believe (paragraph 13 of the application), the comparison to be made does not in fact relate to the "importer' s price" on the one hand and the "Community producer' s price" on the other.

Principle of good administration

33. The BEUC has submitted alternatively that a breach of the principle of good administration and of the principle requiring a coherent application of the rules of Community law and procedure has been committed.

34. As far as the first principle is concerned, it is sufficient to observe that the BEUC' s argument is based on a premise whose validity it has still not proved, even by pleading a fundamental principle of Community law, namely that it should have the same right of access to information as exporters, importers and complainants because it has the same right to challenge the outcome of the proceeding before the Court.

35. In pleading the second principle the BEUC refers to the fact that in its capacity of intervener in a case before the Court it could have access to the non-confidential documents submitted by the main parties thereto. However, I see nothing illogical or incoherent in the fact that in two procedures of a different kind, conducted before two different institutions, one particular party does not enjoy the same right of access to the files, especially since the files themselves are not necessarily the same. Moreover, the fact that the BEUC had been granted leave to intervene in support of the conclusions of the Commission in Joined Cases 228 and 229/82R and 228 and 229/82 (Ford v Commission [1982] ECR 3091, at p. 3097 and [1984] ECR 1129, at p. 1137), which concerned an application for the annulment of a decision of the Commission relating to a proceeding under Article 85 of the EEC Treaty, does not necessarily mean that it should be allowed to intervene in a case arising from an anti-dumping proceeding. The BEUC' s role in the two types of proceeding is not the same: it is certainly not excluded that, as a body representing the interests of consumers, the BEUC may be amongst the "natural or legal persons who claim a legitimate interest" who are expressly authorized under Article 3(2)(b) of Regulation No 17, mentioned above, to submit a complaint to the Commission. In any case, the order by which the Court allowed the intervention in Joined Cases 228 and 229/82 is based, in particular, on the fact that it had already intervened in the earlier stages of the case. In doing so, it had, in my opinion, played a role comparable to that of a complainant.

36. The alternative submission put forward by the BEUC cannot therefore be accepted either.

37. Accordingly, I propose that the Court should dismiss the application and order the applicant to pay the costs, except those of the Council, which intervened in support of the conclusions of the Commission but did not include in its intervention any conclusions as to costs.

(*) Original language: French.

(1) OJ 1988 L 209, p. 1.

(2) OJ 1989 C 11, p. 9.

(3) See in particular the judgment of 24 June 1986 in Case 53/85 AKZO v Commission [1986] ECR 1965, at para. 16.

(4) See in particular the judgment of 21 September 1989 in Joined Cases 46/87 and 227/88 Hoechst v Commission [1989] ECR 2859, at para. 14, and the judgment of 18 October 1989 in Case 374/87 Orkem v Commission [1989] ECR 3283, at para. 32.

(5) See in particular the order of 5 November 1986 in Case 117/86 UFADE v Council and Commission [1986] ECR 3256 at para. 12.

(6) This point is clearly seen in paragraphs 60 and 62 of its application.

(7) Regulation No 17 of the Council of 6 February 1962 (OJ, English Special Edition 1959-1962, p. 87).

(8) See paragraph 21 of the judgment of 17 November 1987, cited above, which refers to the judgment of 24 June 1986 in Case 53/85 AKZO v Commission [1986] ECR 1965, at para. 28.