Industrie des poudres sphériques v Council of the European Union, Commission of the European Communities, Péchiney électrométallurgie and Chambre syndicale de l'électrométallurgie et de l'électrochimie.
Date: 2000-10-03
67 It should be noted that the fact that an appeal, or a plea in support of an appeal, does not refer to all the reasons which led the Court of First Instance to adopt a position on a question does not result in the plea being inadmissible.
74 To allow a party to put forward for the first time before the Court of Justice a plea in law which it has not raised before the Court of First Instance would mean allowing that party to bring before the Court, whose jurisdiction in appeals is limited, a wider case than that heard by the Court of First Instance. In an appeal the Court's jurisdiction is thus confined to examining the assessment by the Court of First Instance of the pleas argued before it (see, to that effect, Case C-136/92 P Commission v Brazzelli Lualdi and Others [1994] ECR I-1981, at paragraph 59; and Case C-7/95 P Deere v Commission [1998] ECR I-3111, at paragraph 62).
81 In order to comply with a judgment annulling a measure and to implement it fully, the institution is required to have regard not only to the operative part of the judgment but also to the grounds which led to the judgment and constitute its essential basis, in so far as they are necessary to determine the exact meaning of what is stated in the operative part. It is those grounds which, on the one hand, identify the precise provision held to be illegal and, on the other, indicate the specific reasons which underlie the finding of illegality contained in the operative part and which the institution concerned must take into account when replacing the annulled measure (Joined Cases 97/86, 193/86, 99/86 and 215/86 Asteris and Others v Commission [1988] ECR 2181, paragraph 27).
82 The procedure for replacing such a measure may thus be resumed at the very point at which the illegality occurred (Case C-415/96 Spain v Commission [1998] ECR I-6993, paragraph 31).
88 In that regard, it should be noted in first place that the period provided for in Article 7(1)(c) is a guide rather than mandatory (see, mutatis mutandis, Case 246/87 Continentale Produkten-Gesellschaft Erhardt-Renken v Hauptzollamt München-West [1989] ECR 1151, paragraph 8).
89 In second place, it should be noted that the institutions have a wide discretion regarding the determination of the period to be taken into account for the purposes of determining injury in an anti-dumping proceeding (see, inter alia, Case C-69/89 Nakajima v Council [1991] ECR I-2069, paragraph 86).
90 Lastly, it should be observed that it is clear from the scheme of the basic regulation that injury must be established in relation to the time when any decision imposing protective measures is adopted (Case C-121/86 Epicheiriseon Metalleftikon Viomichanikon kai Naftiliakon and Others v Council [1989] ECR 3919, at paragraph 35).
94 As regards the selection of a reference period, it must, however, be recalled that the existence of sufficient evidence of dumping and the injury resulting therefrom is always a prerequisite for the opening of an investigation, within the meaning of Article 7 of the basic regulation, whether at the initiation of an anti-dumping proceeding or in the course of a review of a regulation imposing anti-dumping duties (Case C-245/95 P Commission v NTN and Koyo Seiko [1998] ECR I-401, paragraph 38). The same is true of the resumption of an investigation in the course of an anti-dumping proceeding which has remained open following a judgment annulling a regulation imposing anti-dumping duties.
99 In that regard, it should be observed that, in performing their duty to provide information, the Community institutions must act with all due diligence by seeking to provide the undertakings concerned, as far as is compatible with the obligation not to disclose business secrets, with information relevant to the defence of their interests, choosing, if necessary on their own initiative, the appropriate means of providing such information. In any event, the undertakings concerned must have been placed in a position during the administrative procedure in which they can effectively make known their views on the correctness and relevance of the facts and circumstances alleged and on the evidence presented by the Commission in support of its allegation concerning the existence of dumping and the resultant injury (Case C-49/88 Al-Jubail Fertilizer v Council [1991] ECR I-3187, paragraph 17).