Nachi Europe GmbH v Hauptzollamt Krefeld.
Date: 2001-02-15
10 Nachi Europe, which is a subsidiary of Nachi Fujikoshi, imported, in November and December 1995, ball bearings of Japanese origin manufactured by its parent company, and cleared them for release into free circulation at the customs post in Mönchengladbach, which comes under the responsibility of the Hauptzollamt.
21 According to settled case-law, regulations imposing an anti-dumping duty, although by their nature and scope of a legislative nature, are liable to be of direct and individual concern to inter alios those producers and exporters who are able to establish that they were identified in the measures adopted by the Commission or the Council or were concerned by the preliminary investigations (see, in particular, Joined Cases 239/82 and 275/82 Allied Corporation and Others v Commission [1984] ECR 1005, paragraph 12), or, again, to those importers whose retail prices for the products in question form the basis of the constructed export price, where exporter and importer are associated (see, in particular, Joined Cases C-305/86 and C-160/87 Neotype Techmashexport v Commission and Council [1990] ECR I-2945, paragraph 19).
22 The Court has ruled that, where a regulation which introduces an anti-dumping duty imposes different duties on a series of undertakings, an undertaking is individually concerned only by those provisions which impose on it a specific anti-dumping duty and determine the amount thereof, and not by those provisions which impose anti-dumping duties on other undertakings, with the result that an action brought by that undertaking will be admissible only in so far as it seeks the annulment of those provisions of the regulation that exclusively concern it (Case 240/84 Toyo v Council [1987] ECR 1809, paragraphs 6 and 7; Case 255/84 Nachi Fujikoshi v Council [1987] ECR 1861, paragraphs 7 and 8; Case 256/84 Koyo Seiko v Council [1987] ECR 1899, paragraphs 6 and 7; and Case 258/84 Nippon Seiko v Council [1987] ECR 1923, paragraphs 7 and 8).
24 In its judgment in NTN Corporation and Koyo Seiko v Council, the Court of First Instance upheld the actions brought by those undertakings within the limits of the forms of order sought from it, that is to say, by annulling Article 1 of Regulation No 2849/92 only in so far as it imposed anti-dumping duties on NTN Corporation and Koyo Seiko, in accordance with the case-law which states that, since it would be ultra vires for the Community judicature to rule ultra petita (see Joined Cases 46/59 and 47/59 Meroni v High Authority [1962] ECR 411, at page 419, and Case 37/71 Jamet v Commission [1972] ECR 483, paragraph 12), the scope of the annulment which it pronounces may not go further than that sought by the applicant (Case C-310/97 P Commission v AssiDomän Kraft Products and Others [1999] ECR I-5363, paragraph 52).
25 The Court has pointed out in this regard that, if an addressee of a decision decides to bring an action for annulment, the matter to be considered by the Community judicature relates only to those aspects of the decision which concern that addressee. Unchallenged aspects concerning other addressees, on the other hand, do not form part of the matter to be tried by the Community judicature (AssiDomän Kraft Products, cited above, paragraph 53).
26 The Court has also ruled that, although the authority erga omnes exerted by an annulling judgment of a court of the Community judicature attaches to both the operative part and the ratio decidendi of the judgment, it cannot entail annulment of an act not challenged before the Community judicature but alleged to be vitiated by the same illegality (AssiDomän Kraft Products, paragraph 54).
27 That being so, the annulment of Article 1 of Regulation No 2849/92 by the Court of First Instance in its judgment in NTN Corporation and Koyo Seiko v Council, upheld by the Court of Justice in Commission v NTN and Koyo Seiko, in so far as that article imposed anti-dumping duties on NTN and Koyo Seiko, did not affect the validity of the other aspects of that regulation, in particular the anti-dumping duty applicable to ball bearings manufactured by Nachi Fujikoshi, since those aspects did not form part of the subject of the dispute on which the Community judicature was called to rule.
The possibility for Nachi Europe to plead that the anti-dumping duty is invalid in a dispute before a national court
29 First, it is settled case-law that a decision adopted by a Community institution which has not been challenged by its addressee within the time-limit laid down by the fifth paragraph of Article 230 EC becomes definitive as against that person (see, inter alia, Case 156/77 Commission v Belgium [1978] ECR 1881, paragraphs 20 to 24, Case C-183/91 Commission v Greece [1993] ECR I-3131, paragraphs 9 and 10, and Case C-188/92 TWD Textilwerke Deggendorf v Germany [1994] ECR I-833, paragraph 13). Such a rule is based in particular on the consideration that the periods within which legal proceedings must be brought are intended to ensure legal certainty by preventing Community measures which produce legal effects from being called in question indefinitely (Case C-178/95 Wiljo v Belgian State [1997] ECR I-585, paragraph 19).
30 The Court has also ruled that it follows from the same requirements of legal certainty that it is not possible for a recipient of State aid, forming the subject-matter of a Commission decision addressed directly solely to the Member State from which that beneficiary came, who could undoubtedly have challenged that decision and who allowed the mandatory time-limit laid down in this regard by the fifth paragraph of Article 230 EC to pass, to call in question the lawfulness of that decision before the national courts in an action brought against the measures taken by the national authorities in implementation of that decision (TWD Textilwerke Deggendorf, paragraphs 17 and 24, and Wiljo, paragraphs 20 and 21, both cited above). The Court has taken the view that to find otherwise would enable the recipient of the aid to overcome the definitive nature which a decision necessarily assumed, by virtue of the principle of legal certainty, once the time-limit laid down for bringing proceedings had passed (TWD Textilwerke Deggendorf, paragraph 18, and Wiljo, paragraph 21).
31 It is necessary to examine whether, as the Council and Commission submit, the solution arrived at in TWD Textilwerke Deggendorf may be extended to a case, such as that here in the main proceedings, in which it is the invalidity of an anti-dumping regulation that is being invoked in a dispute before a national court by an undertaking in a position such as that of Nachi Europe.
32 On this point, Nachi Europe submitted during the hearing that the solution arrived at in TWD Textilwerke Deggendorf could not be applied where the invalidity of a regulation is pleaded incidentally, since Article 241 EC allows any party to plead the inapplicability of a regulation as an incidental issue, notwithstanding the expiry of the period laid down in the fifth paragraph of Article 230 EC.
33 It should first of all be noted in this regard that, according to settled case-law, the possibility provided by Article 241 EC of pleading the inapplicability of a regulation does not constitute an independent right of action and may only be exercised incidentally in proceedings brought before the Court of Justice itself pursuant to a separate provision of the Treaty (judgments in Joined Cases 31/62 and 33/62 Wöhrmann and Lütticke v Commission [1962] ECR 501, at 507, Case 33/80 Albini v Council and Commission [1981] ECR 2141, paragraph 17, and Joined Cases 87/77, 130/77, 22/83, 9/84 and 10/84 Salerno and Others v Commission and Council [1985] ECR 2523, paragraph 36; order in Case C-64/93 Donatab and Others v Commission [1993] ECR I-3595, paragraph 19).
34 Since Article 241 EC cannot be invoked before the Court in the absence of a main action brought before it, that provision cannot as such be applied in the context of the preliminary ruling procedure provided for in Article 234 EC. As the Advocate General has pointed out in paragraph 62 of his Opinion, Article 234 EC itself provides for a procedure for resolution of a question which arises with regard to the validity of a Community measure, where such a question arises incidentally in a dispute before a national court.
35 It is true, however, that Article 241 EC expresses a general principle of law under which an applicant must, in proceedings brought under national law against the rejection of his application, be able to plead the illegality of a Community measure on which the national decision adopted in his regard is based, and the question of the validity of that Community measure may thus be referred to the Court in proceedings for a preliminary ruling (Case 216/82 Universität Hamburg [1983] ECR 2771, paragraphs 10 and 12).
36 The Court has also pointed out that this general principle confers on any party to proceedings the right to challenge, for the purpose of obtaining the annulment of a decision of direct and individual concern to that party, the validity of previous acts of the institutions which form the legal basis of the decision which is being attacked, if that party was not entitled under Article 230 EC to bring a direct action challenging those acts by which it was thus affected without having been in a position to ask that they be declared void (Case 92/78 Simmenthal v Commission [1979] ECR 777, paragraph 39, and TWD Textilwerke Deggendorf, paragraph 23).
37 However, this general principle, which has the effect of ensuring that every person has or will have had the opportunity to challenge a Community measure which forms the basis of a decision adversely affecting him, does not in any way preclude a regulation from becoming definitive as against an individual in regard to whom it must be considered to be an individual decision and who could undoubtedly have sought its annulment under Article 230 EC, a fact which prevents that individual from pleading the illegality of that regulation before the national court (see, in regard to a Commission decision, TWD Textilwerke Deggendorf, paragraphs 24 and 25). Such a conclusion applies to regulations imposing anti-dumping duties by virtue of their dual nature, noted by the Court in the case-law cited in paragraph 21 of the present judgment, as acts of a legislative nature and acts liable to be of direct and individual concern to certain traders.
38 In the present case, Nachi Europe, the plaintiff in the main proceedings, could undoubtedly have sought the annulment of Article 1(2) of Regulation No 2849/92 inasmuch as it fixed an anti-dumping duty applicable to ball bearings manufactured by Nachi Fujikoshi.
39 As the Advocate General has noted in paragraphs 32 to 34 of his Opinion, Nachi Europe is an importer which is associated with Nachi Fujikoshi and whose resale prices for the goods in question were used to construct the export price applied by Regulation No 2849/92 in order to establish the dumping margins in respect of Nachi Fujikoshi. Pursuant to the case-law cited in paragraphs 21 and 22 of the present judgment, that fact allowed Nachi Europe to be regarded as being directly and individually concerned by the provisions of that regulation which imposed a specific anti-dumping duty on goods manufactured by Nachi Fujikoshi.
40 It follows from all of the foregoing considerations that the answer to the first question must be that neither the judgment of the Court of First Instance in NTN Corporation and Koyo Seiko v Council nor that of the Court of Justice in Commission v NTN and Koyo Seiko affected the validity of Article 1(2) of Regulation No 2849/92 in so far as it fixes an anti-dumping duty applicable to ball bearings manufactured by Nachi Fujikoshi.
An importer of those products, such as Nachi Europe, which undoubtedly had a right of action before the Court of First Instance to seek the annulment of the anti-dumping duty imposed on those goods, but which did not exercise that right, cannot subsequently plead the invalidity of that anti-dumping duty before a national court. In such a case, the national court is bound by the definitive nature of the anti-dumping duty applicable under Article 1(2) of Regulation No 2849/92 to ball bearings manufactured by Nachi Fujikoshi and imported by Nachi Europe.
The second question