Orders nº T-163/02 of Court of First Instance of the European Communities, July 12, 2002

• Resolution Date: July 12, 2002
• Issuing Organization: Court of First Instance of the European Communities
• Decision Number: T-163/02

ORDER OF THE PRESIDENT OF THE COURT OF FIRST INSTANCE

12 July 2002 (1) (Application for interim measures - Regulation (EC) No 560/2002 -Admissibility of main action - Urgency)

In Case T-163/02 R,

Montan Gesellschaft Voss mbH Stahlhandel, established in Planegg (Germany),

Jepsen Stahl GmbH, established in Nittendorf (Germany),

LNS - Lothar Niemeyer Stahlhandel GmbH & Co. KG, established in Essen (Germany),

Metal Traders Stahlhandel GmbH, established in Düsseldorf (Germany),

represented by K. Friedrich, lawyer, with an address for service in Luxembourg,

applicants,

v

Commission of the European Communities, represented by J. Forman and R. Raith, acting as Agents, with an address for service in Luxembourg,

defendant,

APPLICATION for, first, suspension of the operation of Commission Regulation (EC) No 560/2002 of 27 March 2002 imposing provisional safeguard measures against imports of certain steel products (OJ 2002 L 85, p. 1), and, secondly, other interim measures deemed necessary,

THE PRESIDENT OF THE COURT OF FIRST INSTANCE

OF THE EUROPEAN COMMUNITIES

makes the following

Order

Legal framework

1.

Article 8 of Council Regulation (EC) No 3285/94 of 22 December 1994 on the common rules for imports and repealing Regulation (EC) No 518/94 (OJ 1994 L 349, p. 53) reads as follows:

‘1. The provisions of this Title [Community investigation procedure] shall not preclude the use, at any time, of surveillance measures in accordance with Articles 11 to 15 or provisional safeguard measures in accordance with Articles 16, 17 and 18.

Provisional safeguard measures shall be applied:

- in critical circumstances where delay would cause damage which it would be difficult to repair, making immediate action necessary, and

- where a preliminary determination provides clear evidence that increased imports have caused or are threatening to cause serious injury.

2. The duration of such measures shall not exceed 200 days.

   ...

4. The Commission shall immediately conduct whatever investigation measures are still necessary.

5. Should the provisional safeguard measures be repealed because no serious injury or threat of serious injury exists, the customs duties collected as a result of the provisional measures shall be automatically refunded as soon as possible. The procedure laid down in Article 235 et seq of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code ... shall apply.’

   2.
   On 27 March 2002 the Commission adopted Regulation (EC) No 560/2002 of 27 March 2002 imposing provisional safeguard measures against imports of certain steel products (OJ 2002 L 85, p. 1, ‘the contested regulation’).
   3.
   According to recital 18 of the contested regulation:

   ‘The Commission has made a preliminary determination that there is clear evidence that imports of 15 of the products concerned have recently increased in a manner which is sudden, sharp and significant. These are non alloy hot rolled coils, non alloy hot rolled sheets and plates, non alloy hot rolled narrow strip, alloy hot rolled flat products, cold rolled sheets, electrical sheets (other than GOES), tin mill products, quarto plates, wide flats, non alloy merchant bars and light sections, alloy merchant bars and light sections, rebars, stainless steel wire, fittings (

   4.
   Recital 36 of the contested regulation reads as follows:

   ‘Based on its preliminary analysis, the Commission has made a preliminary determination that, in relation to each of the 15 products concerned, the Community producers are threatened with significant overall impairment in their position which is clearly imminent. It is anticipated that actual serious injury will occur even more rapidly both as a result of the announcement of US measures on 5 March, and of those measures being brought into force.’

   5.
   Under the title ‘Provisional measures - form and level’, recitals 65 and 66 state as follows:

   ‘(65) By taking provisional safeguard measures, the Commission seeks to prevent the occurrence of serious injury, and damage which it would be difficult to repair, to the Community producers arising from diverted trade, whilst preserving, in so far as possible, the openness of the Community market, and maintaining the flow of imports at their current historically high levels.

   (66) In conformity with the Community's international obligations, the provisional measures should take the form of tariff measures relative to each of the 15 products concerned. To preserve the flow of imports to the Community at their current historically high levels, they should take the form of tariff quotas in excess of which an additional duty requires to be paid. To ensure access to the Community market to all traditional suppliers, such tariff quotas should be based on the average of the annual level of imports in the years 1999, 2000 and 2001, plus 10% thereof. As the tariff quotas will be in operation for six months, they should be set at one half of that annual figure.’

   6.
   Article 1 of the contested regulation provides as follows:

   ‘1. A tariff quota is hereby opened in relation to imports into the Community of each of the 15 products concerned specified in Annex 3 (defined by reference to the CN codes specified in relation to it) from the date on which this Regulation enters into force until the day before the corresponding date of the sixth month following.

2. The conventional rate of duty provided for these products in Council Regulation (EC) No 2658/97, or any preferential rate of duty, shall continue to apply.

3. Imports of those products which are in excess of the volume of the relevant tariff quota specified in Annex 3, or without a request for benefit, shall be subject to an additional duty at the rate specified in Annex 3 for that product. That...