Orders nº T-132/01 of Court of First Instance of the European Communities, February 27, 2002

• Resolution Date: February 27, 2002
• Issuing Organization: Court of First Instance of the European Communities
• Decision Number: T-132/01

ORDER OF THE PRESIDENT OF THE COURT OF FIRST INSTANCE

27 February 2002 (1) (Procedure for interim relief - Appeal - Referral back to the Court of First Instance - Dumping - Decision terminating an expiry review - Urgency - Lack of urgency)

In Case T-132/01 R,

Euroalliages, established in Brussels (Belgium),

Péchiney électrométallurgie, established in Courbevoie (France),

Vargön Alloys AB, established in Vargön (Sweden),

Ferroatlántica, established in Madrid (Spain),

represented by D. Voillemot and O. Prost, lawyers,

applicants,

supported by

Kingdom of Spain, represented by L. Fraguas Gadea, acting as Agent, with an address for service in Luxembourg,

intervener,

v

Commission of the European Communities, represented by V. Kreuschitz and S. Meany, acting as Agents, and by A.P. Bentley, Barrister, with an address for service in Luxembourg,

defendant,

supported by

TNC Kazchrome, established in Almaty (Kazakhstan)

and by

Alloy 2000 SA, established in Luxembourg,

represented by J.E. Flynn, Barrister, J. Magnin and S. Mills, Solicitors,

interveners,

APPLICATION, primarily, for suspension of the operation of Commission Decision 2001/230/EC of 21 February 2001 (OJ 2001 L 84, p. 36) in so far as it terminates the anti-dumping proceeding concerning imports of ferro-silicon originating in the People's Republic of China, Kazakhstan, Russia and Ukraine and for an order that the Commission re-impose expired anti-dumping duties, alternatively, for an order that the Commission require importers of ferro-silicon originating in those four countries to provide security corresponding to the expired anti-dumping duties and to subject their imports to registration, or, in the further alternative, for an order that the Commission require the said importers to subject their imports to registration,

THE PRESIDENT OF THE COURT OF FIRST INSTANCE

OF THE EUROPEAN COMMUNITIES

makes the following

Order

Legal background

1.

Article 11(1) and (2) of Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (OJ 1996 L 56, p. 1, ‘the basic regulation’), under the heading ‘Duration, reviews and refunds’, provides:

‘1. An anti-dumping measure shall remain in force only as long as, and to the extent that, it is necessary to counteract the dumping which is causing injury.

2. A definitive anti-dumping measure shall expire five years from its imposition or five years from the date of the conclusion of the most recent review which has covered both dumping and injury, unless it is determined in a review that the expiry would be likely to lead to a continuation or recurrence of dumping and injury. Such an expiry review shall be initiated on the initiative of the Commission, or upon request made by or on behalf of Community producers, and the measure shall remain in force pending the outcome of such review.

...’

2.

Article 21(1) of the basic regulation, under the heading ‘Community interest’, provides as follows:

‘A determination as to whether the Community interest calls for intervention shall be based on an appreciation of all the various interests taken as a whole, including the interests of the domestic industry and users and consumers; and a determination pursuant to this Article shall only be made where all parties have been given the opportunity to make their views known pursuant to paragraph 2. In such an examination, the need to eliminate the trade distorting effects of injurious dumping and to restore effective competition shall be given special consideration. Measures, as determined on the basis of the dumping and injury found, may not be applied where the authorities, on the basis of all the information submitted, can clearly conclude that it is not in the Community interest to apply such measures.’

Background to the dispute

3.

Definitive anti-dumping measures were imposed on imports of ferro-silicon originating in a number of countries, first, by Council Regulation (EC) No 3359/93 of 2 December 1993 imposing amended anti-dumping measures on imports of ferro-silicon originating in Russia, Kazakhstan, Ukraine, Iceland, Norway, Sweden, Venezuela and Brazil (OJ 1993 L 302, p. 1), and, second, by Council Regulation (EC) No 621/94 of 17 March 1994 imposing a definitive anti-dumping duty on imports of ferro-silicon originating in South Africa and in the People's Republic of China (OJ 1994 L 77, p. 48).

4.

On 10 June 1998 the Commission published a notice of impending expiry of certain anti-dumping measures (OJ 1998 C 177, p. 4).

5.

Following the publication of that notice Euroalliages, the Liaison Committee of the Ferro-alloy Industry, lodged an application pursuant to Article 11(2) of the basic regulation for an expiry review of measures concerning imports from Brazil, China, Kazakhstan, Russia, Ukraine and Venezuela.

6.

Having determined, after consulting the Advisory Committee, that sufficient evidence existed for initiation of a review under Article 11(2) of the basic regulation, the Commission published a notice of initiation of that procedure in the Official Journal of the European Communities (OJ 1998 C 382, p. 9) and commenced an investigation. The investigation of dumping covered the period between 1 October 1997 and 30 September 1998. The examination of injury covered the period from 1994 to the end of the investigation period.

7.

On 21 February 2001 the Commission adopted Decision 2001/230/EC terminating the anti-dumping proceeding concerning imports of ferro-silicon originating in Brazil, the People's Republic of China, Kazakhstan, Russia, Ukraine and Venezuela (OJ 2001 L 84, p. 36, ‘the contested decision’).

The contested decision

8.

The contested decision states that the review led the Commission to conclude that, in respect of imports of ferro-silicon from China, Kazakhstan, Russia and Ukraine, the expiry of the measures would encourage the continuation or recurrence of dumping and injury.

9.

Recital 129 in the preamble to the contested decision provides as follows:

‘In the light of the findings of a likelihood of continuation and recurrence of dumping, and of the findings that dumped imports originating in China, Kazakhstan, Russia and Ukraine may significantly increase should measures be allowed to lapse, it is concluded that the situation of the Community industry would deteriorate. Even though the extent of this deterioration is difficult to evaluate, taking into account the declining trends in prices and profitability of this industry, it is none the less likely that injury will recur. In respect of Venezuela, should measures be allowed to lapse, there is unlikely to be any material injurious effect.’

10.

The Commission then examined whether the maintenance of the anti-dumping measures was in the overall interest of the Community. In making that assessment it took account of several factors, namely, first, the fact that the Community industry had not been capable of benefiting sufficiently from the measures in place since 1987 nor, in terms of market share, from the demise of former Community producers (recital 151 in the preamble to the contested decision), and second, the fact that Community steel-producers had had to bear additional costs arising from the anti-dumping measures during the period of validity of...