Nachi Europe GmbH v Hauptzollamt Krefeld.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: La Pergola
• ECLI: ECLI:EU:C:2000:639
• Docket Number: C-239/99
• Date: 16 November 2000
• Procedure Type: Reference for a preliminary ruling

Important legal notice

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61999C0239

Opinion of Mr Advocate General Jacobs delivered on 16 November 2000. - Nachi Europe GmbH v Hauptzollamt Krefeld. - Reference for a preliminary ruling: Finanzgericht Düsseldorf - Germany. - Common commercial policy - Anti-dumping measures - Article 1(2) of Regulation (EEC) No 2849/92 - Modification of the definitive anti-dumping duty on imports of ball bearings with a greatest external diameter exceeding 30 mm originating in Japan - Reference for a preliminary ruling on whether that regulation is valid - Failure by the plaintiff in the main proceedings to bring an action seeking annulment of the regulation. - Case C-239/99.

European Court reports 2001 Page I-01197

Opinion of the Advocate-General

1. This reference for a preliminary ruling concerns a Council regulation imposing a definitive anti-dumping duty on imports of ball bearings originating in Japan, the essential operative provisions of which have been annulled by the Court of First Instance on general grounds, but only in so far as they imposed a duty on the products of the two manufacturers who had brought proceedings in good time under what was then Article 173 of the EEC Treaty (now, after amendment, Article 230 EC). To what extent may a Community importer of ball bearings manufactured by its Japanese parent company, to whose products the duty also applies but which was not involved or referred to in the annulment proceedings, rely on that annulment before its national courts in order to seek remission or repayment of the anti-dumping duty levied? That is, in essence, the question raised by the Finanzgericht (Finance Court), Düsseldorf, in the present case.

The anti-dumping procedure

2. A definitive anti-dumping duty on imports of ball bearings with a greatest external diameter of more than 30 mm (hereinafter simply ball bearings) originating in Japan was first imposed by Council Regulation No 1739/85. It applied to all such ball bearings, with the exception of those manufactured by four named companies. Individual rates of duty were set for the products of 10 other named manufacturers, of whom only four need be mentioned here. A duty of 3.2% was imposed on ball bearings manufactured by NTN Toyo Bearing Co Ltd (NTN), of 5.5% on those manufactured by Koyo Seiko Co Ltd (Koyo Seiko), of 16.7% on those manufactured by Nippon Seiko KK (NSK) and of 13.9% on those manufactured by Nachi Fujikoshi Corporation (Nachi Fujikoshi).

3. In May 1989, the Commission announced a review of those anti-dumping measures which, in accordance with Article 15(1) of Council Regulation No 2423/88 (the basic regulation), were due to expire in 1990. They were, however, maintained in force in accordance with Article 15(4) of that regulation, pending the outcome of the review.

4. The review came to an end on 28 September 1992 with Council Regulation No 2849/92 (the contested regulation), some three and a half years after its initiation and over two years after Regulation No 1739/85 had been due to expire. In its reasoning, the Council found dumping margins still to exist (paragraphs 21 to 23 of the preamble), considered whether the situation of the Community industry was such that the expiry of the measures in place would lead to a recurrence of injury and concluded that it would (paragraphs 26 to 39). Taking the view that the interest of the Community clearly lay in maintaining protection for its ball bearings industry (paragraphs 40 to 44), and after comparing price levels (paragraphs 45 to 52), the Council decided to modify the definitive duties in existence. The basic level of duty was set at 13.7%, with lower levels for ball bearings manufactured by four named producers (Article 1(2) of the operative provisions) and exemption for a further seven named producers (Article 1(3)).

5. As a result, the rates of duty were now 11.6% for NTN (up from 3.2%), 13.7% for Koyo Seiko (up from 5.5%), 6.5% for NSK (down from 16.7%) and 7.7% for Nachi Fujikoshi (down from 13.9%) (Article 1(2)).

The judicial review

At first instance

6. Regulation No 2849/92 was challenged before the Court of Justice by NTN and Koyo Seiko (the two Japanese manufacturers most adversely affected by the changed rates of duty) by applications within the two-month time-limit laid down in what was then the third paragraph of Article 173 of the EEC Treaty. Those actions against the Council were subsequently transferred to the Court of First Instance as Cases T-163/94 and T-165/94. In those proceedings, the Council was supported by the Commission and by the Federation of European Ball Bearing Manufacturers' Associations, but none of the other Japanese manufacturers or European importers concerned sought to intervene in support of NTN or Koyo Seiko. NTN asked the Court to annul Article 1 of Regulation No 2849/92 in so far as it imposes an anti-dumping duty on the applicant and Koyo Seiko asked it to declare Regulation No 2849/92 void in so far as it affects the applicant.

7. In its judgment of 2 May 1995, the Court of First Instance found it necessary to examine only two of the applicants' pleas, both of which it held to be well founded.

8. In the first of those pleas, the applicants argued that the Council had failed to establish the existence of injury within the meaning of Article 4(1) of the basic regulation, under which, essentially, a determination of injury may be made only where the injury or threatened injury to a Community industry is attributable to the effects of dumping and not to other factors. In paragraphs 69 to 116 of its judgment, the Court of First Instance examined in detail paragraphs 27 to 38 of the Council's reasoning in the contested regulation. In several of those paragraphs it found errors of fact, incomplete statements of fact, hypotheses or statements too vague to support any conclusion. It also found that the Council had based part of its reasoning on the existence of a recession, which could not be taken into account for the purpose of determining injury. It concluded that it was possible that in the absence of such errors of fact and law the Council would not have found that there was a threat of injury.

9. In the second plea examined, the applicants argued that Article 7(9)(a) of the basic regulation, under which an investigation should normally be concluded within one year of its initiation, had been infringed because there was no adequate statement of reasons to explain why that period had not been observed. The Court of First Instance held that an investigation must not be extended beyond a reasonable period and that the Council had not provided adequate reasons to explain the length of time taken in this case (paragraphs 119 to 124 of the judgment).

10. On both those grounds, the Court of First Instance annulled Article 1 of the contested regulation in so far as it imposes an anti-dumping duty on the applicants.

On appeal

11. On 12 July 1995, the Commission lodged an appeal (Case C-245/95 P) against the judgment in Joined Cases T-163/94 and T-165/94, on the ground that the Court of First Instance had committed an error of law, first, in its interpretation of the definition of injury under the basic regulation and, second, in its interpretation and application of Article 7(9)(a) of that regulation, in so far as it considered that the excessive duration of the investigation necessarily entailed the annulment of the contested regulation.

12. In the appeal proceedings, NSK and eight of its European subsidiaries applied for and were granted leave to intervene in support of NTN and Koyo Seiko.

13. In its judgment of 10 February 1998, the Court of Justice rejected the Commission's contention that the criteria for establishing the existence of injury set out in Article 4 of the basic regulation did not apply in the context of a review of existing anti-dumping measures but only where measures were being imposed for the first time, and therefore dismissed its first plea. Since the Court of First Instance had found that the Council had failed to establish any injury or threat of injury within the meaning of that article, and since that finding was sufficient to warrant the annulment of Article 1 of the contested regulation, this Court did not examine the Commission's second plea.

14. In their statement in intervention in the appeal, NSK and its subsidiaries had asked the Court not only to grant the forms of order sought by NTN and Koyo Seiko but also to confirm that the annulment of Article 1 of the contested regulation applied equally to NSK. At paragraph 24 of its judgment, the Court of Justice held that the latter claim was inadmissible under the fourth paragraph of Article 37 of its Statute, since an application to intervene must be limited to supporting the form of order sought by one of the parties.

15. On 3 June 1998 the Commission published a Notice concerning anti-dumping measures on imports of ball bearings with a greatest external diameter exceeding 30 mm originating in Japan, in which it stated that, following the annulment of Article 1 of the contested regulation as far as NTN and Koyo Seiko were concerned and the dismissal of the appeal against that annulment, as to definitive duties collected after the entry into force of the regulation in question, importers may request their refund from national customs authorities with regard to products manufactured by NTN and Koyo Seiko.

The proceedings in the present case

16. Nachi Europe GmbH is a European subsidiary of Nachi Fujikoshi. In November and December 1995, it imported ball bearings of Japanese origin, paying a total of DEM 58 891.51 in anti-dumping duty, imposed by tax notices of 17 November 1995 and 29 December 1995.

17. In a letter received by the...