OPINION OF ADVOCATE GENERAL
JACOBS
delivered on 29 April 2004 (1)
Case C-422/02 P
Europe Chemi-Con (Deutschland) GmbH
v
Council of the European Union
1.The present appeal concerns the application of the principle of non-discrimination as expressed in Article 9(5) of Council Regulation (EC) No 384/96 on protection against dumped imports from countries not members of the European Community(2) (‘the basic regulation’). It raises the question how that principle applies where imports of the same type of goods from two different sets of countries are simultaneously subject to separate anti-dumping investigations: an initial investigation as regards one set of countries and an expiry review(3) as regards the other set. When the initial investigation does not lead to the imposition of duties, what is the extent of the Community authorities’ obligation to discontinue the imposition of the duties subject to the expiry review? In particular, to what extent does such an obligation apply retroactively?
Relevant anti-dumping legislation
2.Under the basic regulation – which was adopted partly to bring practice into line with new international obligations under the 1994 ‘Anti-dumping Code’ established as part of the Uruguay round of multilateral trade negotiations(4) – the Commission, in consultation with an Advisory Committee on which the Member States are represented, carries out investigations into dumping and may impose provisional duties, whereas the Council is responsible for imposing definitive duties. Article 5 provides for the initiation of investigation proceedings, on complaint by the Community industry, to be conducted according to Article 6.
3.Article 7(1) provides: ‘Provisional duties may be imposed ... if a provisional affirmative determination has been made of dumping and consequent injury to the Community industry, and if the Community interest calls for intervention to prevent such injury. ...’ Under Article 7(3), provisional duties are to be secured by guarantee.
4.Under Article 9(4): ‘Where the facts as finally established show that there is dumping and injury caused thereby, and the Community interest calls for intervention …, a definitive anti-dumping duty shall be imposed by the Council, acting by simple majority on a proposal submitted by the Commission after consultation of the Advisory Committee. ...’
5.Article 9(5) provides: ‘An anti-dumping duty shall be imposed in the appropriate amounts in each case, on a non-discriminatory basis on imports of a product from all sources found to be dumped and causing injury ...’
6.The wording of Article 9(5) is very similar to that of Article 9.2 of the Anti-dumping Code: ‘When an anti-dumping duty is imposed in respect of any product, such anti-dumping duty shall be collected in the appropriate amounts in each case, on a non-discriminatory basis on imports of such product from all sources found to be dumped and causing injury …’
7.The latter provision is in turn, it is claimed by the appellant in the present proceedings, an expression of the general most-favoured-nation clause in Article I of the General Agreement on Tariffs and Trade (‘GATT 1947’), according to which ‘[w]ith respect to customs duties and charges of any kind imposed on or in connection with importation or exportation …, any advantage, favour, privilege or immunity granted by any contracting party to any product originating in or destined for any other country shall be accorded immediately and unconditionally to the like product originating in or destined for the territories of all other contracting parties’.
8.Article 11 of the basic regulation concerns duration, reviews and refunds of duties imposed. The first and second paragraphs of Article 11(2) provide:
‘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.
An expiry review shall be initiated where the request contains sufficient evidence that the expiry of the measures would be likely to result in a continuation or recurrence of dumping and injury. ...’
9.At any time from at least one year after the imposition of a definitive duty, the Commission may also carry out an interim review under Article 11(3) of the basic regulation, essentially in order to determine whether continued imposition of the duty is still necessary and sufficient or whether the relevant circumstances have changed significantly.
10.Under Article 11(5): ‘The relevant provisions of this Regulation with regard to procedures and the conduct of investigations, excluding those relating to time-limits, shall apply to any review carried out pursuant to paragraphs 2, 3 and 4. …’
The anti-dumping proceedings in issue
11.This case concerns imports of products referred to as large aluminium electrolytic capacitors (‘LAECs’), although it seems to be acknowledged that the term ‘large’ is inappropriate here. Capacitors are electronic components which can store and subsequently release electric energy, used in the electric circuits of virtually all types of electronic equipment, in the computer, telecommunications, instrumentation, industrial, military, automotive and other consumer industries. The LAECs in issue are particularly used in power supply circuits in durable consumer electronics such as television sets, video cassette recorders and personal computers.
12.With effect from 4 December 1992, a definitive anti-dumping duty was imposed on imports of certain LAECs from Japan.(5) That duty was thus due to expire, in accordance with Article 11(2) of the basic regulation, with effect from 4 December 1997. With effect from 19 June 1994, a definitive duty was also imposed on certain such imports from Korea and Taiwan.(6) Then, on 27 November 1997, the Commission announced the initiation of an investigation into imports of LAECs from the United States and Thailand.(7)
13.On 3 December 1997, the last day on which the duty on imports from Japan was to be levied under Regulation No 3482/92, the Commission announced the initiation of both an expiry review of that duty following a request on behalf of Community producers and an interim review on its own initiative.(8) Pursuant to Article 11(2) of the basic regulation, the duty thus remained in force pending the outcome of the expiry review. An interim review of the measures applicable to imports from Korea and Taiwan was announced on 7 April 1998.(9)
14.In its investigation into LAECs from the United States and Thailand, the Commission concluded that dumped imports were causing material injury to the Community industry and that it was in the Community interest to impose anti-dumping duties. It therefore imposed a provisional duty on certain such imports, for a period of six months from 28 August 1998.(10) Pursuant to Article 7(3) of the basic regulation, that duty was not collected, but secured by guarantee.
15.The Commission then proposed to the Council the imposition of definitive anti-dumping measures on those imports. The Council did not adopt the proposal within the 15-month time-limit laid down by Article 6(9) of the basic regulation. Consequently, no definitive measures were imposed on imports from the United States and Thailand and the provisional measures lapsed on 28 February 1999. Nor were the provisional anti-dumping duties definitively collected on those imports.
16.In its reviews of the measures applicable to imports from Japan, Korea and Taiwan, the Commission reached a similar conclusion that there was continuing material injury to the Community industry and that it was in the Community interest to renew anti-dumping measures on those imports. However, since no duty had been imposed on imports from the United States and Thailand, it proposed to the Council to terminate the measures concerning imports from Japan, Korea and Taiwan. The Council adopted that proposal in Regulation No173/2000(11) (‘the contested regulation’).
17.Under the second paragraph of Article 3, the contested regulation was to apply, retroactively, from 28 February 1999, the date on which the provisional duties on imports from the United States and Thailand had lapsed.
18.The reasons for the termination and the retroactive effect were explained in recitals 132 to 139. In particular, recitals 133 to 135 read:
‘(133)The new investigation concerning the United States of America and Thailand and the two present reviews were conducted, to a large extent, simultaneously. As indicated above, basically the same conclusions in the present reviews have been reached as in the new proceeding concerning the United States of America and Thailand, for the same product concerned. These conclusions call in principle for amending the definitive measures on imports from Japan, the Republic of Korea and Taiwan.
However, Article 9(5) of the basic regulation provides that anti-dumping duties shall be imposed on a non-discriminatory basis on imports of a product from all sources found to be dumped and causing injury.
(134)Therefore, it is concluded that, in the absence of measures on the United States of America and Thailand, the imposition of any measures on imports originating in Japan, the Republic of Korea and Taiwan as a result of the present investigation would be discriminatory towards these latter three countries.
(135)In consideration of the above, in order to ensure a coherent approach and to respect the principle of non-discrimination as set out in Article 9(5) of the Basic Regulation, it is necessary to terminate the proceedings concerning imports of LAECs originating in Japan, the Republic of Korea and Taiwan, without the imposition of anti-dumping measures.’
19.One Japanese exporter had argued that, in order to avoid discrimination, the duty on imports from Japan should be retroactively terminated as from 3 December 1997, when the review was initiated; while that review was pending, imports from Japan were still subject to duty, while none was collected on those from the United States of America and Thailand.
20.The Council decided however that the termination should be retroactive only as from 28 February 1999, for reasons set out in recitals 137 and 138:
‘(137) … between December 1997 and 28 February 1999 imports originating in the United States of America and Thailand were subject to investigation, as were the imports originating in Japan. The fact that measures were in force against Japan but not against the United States of America and Thailand over that period of time is merely a reflection of the fact that the proceeding concerning the United States of America and Thailand was at a different stage, the investigation being the initial investigation, whereas as regards Japan, the measures in force were those imposed by Regulation (EEC) No 3482/92. In these circumstances, no discrimination occurred because the situation of each proceeding was different.
(138) Nevertheless, it is accepted that, from 28 February 1999 onwards, given the considerations set out in recitals (132) to (135) above, imports originating in Japan should be treated in the same way as those originating in the United States of America and Thailand. The same is true for the Republic of Korea and Taiwan. The investigation concerning the United States of America and Thailand had to be concluded by 28 February 1999, either by the imposition of measures or the termination of the proceeding. The present investigation has reached similar conclusions to the investigation concerning the United States of America and Thailand, and thus the same treatment must be applied to the present proceeding.’
Proceedings at first instance
21.Europe Chemi-Con (Deutschland) GmbH is a wholly-owned subsidiary of the Nippon Chemi-Con Corporation, a Japanese manufacturer of LAECs, for whom it acts as exclusive distributor and importer in the European Community. Nippon Chemi-Con was one of the exporters mentioned by name in Regulation No 3482/92 and, it seems agreed, was the one which had argued, prior to the adoption of the contested regulation, that the duty on imports from Japan should be retroactively terminated as from 3 December 1997.
22.On 14 April 2000, Europe Chemi-Con brought an action before the Court of First Instance for annulment of ‘the second paragraph of Article 3 of the contested regulation in so far as it does not state that the retroactive effect of the regulation is to apply from 4 December 1997(12) onwards’. It raised two pleas in law based respectively on ‘manifest error in the appreciation of the facts’ and ‘lack of reasoning’.
23.That action was dismissed by judgment of 12 September 2002.(13)
24.The Court of First Instance dealt with Europe Chemi-Con’s first plea in paragraphs 48 to 60 of the judgment under appeal. First, at paragraph 48, it stated:
‘… the applicant is essentially alleging an error in law with respect to the application of the principle of equal treatment in the contested regulation, not a manifest error in the assessment of the facts in that the Council wrongly considered that the discrimination dated only from 28 February 1999 and not from 4 December 1997. The applicant takes the view that the Council should have given the principle of equal treatment, which is one of the fundamental principles of Community law and is stated in Article 9(5) of the basic regulation, priority over the application of Article 11(2) of the basic regulation which gave rise to discrimination.’
25.It then stated, at paragraph 52, that, ‘in order to establish discrimination by an institution, the institution must have treated like cases differently, thereby creating a disadvantage for some operators in relation to others, without that difference in treatment being justified by the existence of substantial objective differences’.(14)
26.In that context, the Court of First Instance noted in paragraphs 53 to 56 that the review concerning imports from Japan and the initial investigation on imports from the United States and Thailand were governed by different provisions of the basic regulation, with different consequences as regards the collection of the anti-dumping duties. The former was governed by Article 11(2), under which the anti-dumping duty is to remain in force pending the outcome of the review; the latter however was an initial investigation so that, if proceedings were terminated without the imposition of definitive duty, the provisional duties would not be collected definitively.(15)
27.Consequently, the Court stated at paragraph 57 of its judgment that, even if the investigations were comparable in scope and outcome, the difference in treatment as between imports from Japan and those from the United States and Thailand had a legislative basis in the basic regulation and therefore could not be regarded as infringing the principle of equal treatment. The Court cited in that connection the judgment in Sermes.(16)
28.Furthermore, the Council was not obliged to refrain from applying Article 11(2) of the basic regulation on the basis of Article 9(5), which relates only to the ‘imposition’ of anti-dumping duties. In this case, between 4 December 1997 and 28 February 1999, duties continued to be collected on the basis of Article 11(2), ‘which is a specific provision’, irrespective of the initiation of the initial investigation on imports from the United States and Thailand (paragraph 58 of the judgment under appeal).
29.In paragraphs 65 to 69, the Court of First Instance dismissed the applicant’s second plea in law alleging an inadequate statement of reasons.
The appeal
30.Europe Chemi-Con lodged an appeal on 22 November 2002, putting forward three grounds of appeal, all relating to the dismissal of its first plea in law, which may be summarised as follows:
(i)in paragraph 48 of the judgment under appeal, the Court of First Instance wrongly reclassified the plea initially described as ‘manifest error in the appreciation of the facts’ as an allegation of misapplication of the principle of equal treatment rather than as an allegation of misapplication of the principle of non-discrimination;
(ii)in paragraph 58, the Court of First Instance wrongly concluded that Article 9(5) of the basic regulation relates only to the initial imposition of anti-dumping duties and not to their subsequent maintenance in force, and that it is a non-mandatory provision to be applied at the Council’s discretion; Article 9(5) is not merely an expression of the Community law principle of equal treatment but a specific rule which must be interpreted in the light of the Anti-dumping Code, and hence of the most-favoured-nation rule in GATT; that interpretation requires it to be applied to the full in all situations where an anti-dumping duty is levied, regardless of the specific legal basis or the stage of the proceedings; and Article 11(2) of the basic regulation is not a lex specialis outside the scope of Article 9(5);
(iii)even if the case is viewed in the light of the principle of equal treatment rather than of that of non-discrimination, the Court of First Instance was wrong to consider, in paragraph 57 of its judgment, that the principle was not infringed on the ground that the two sets of duties in question were levied on a different legal basis; its reasoning in that regard was ambiguous; in any event, the situations in question were similar and the difference in legal basis was in no way comparable to that in the Sermes case.
31.The appellant therefore seeks to have the judgment under appeal set aside and the order sought at first instance granted, or else the case referred back to the Court of First Instance for final determination. In either event, it seeks costs against the Council both at first instance and on appeal.
32.The Council and the Commission, which intervened at first instance in support of the Council, have submitted responses in which they ask the Court to dismiss the appeal and order the appellant to bear the costs.
33.No hearing has been requested, and none has been held.
Assessment of the appeal
34.As both the Council and the Commission have remarked, Europe Chemi-Con’s three grounds of appeal are in fact interlocked and overlapping, and raise a single main substantive issue, albeit one with two facets. To take account of the overlap, I shall consider the arguments in a slightly different order from that presented in the appeal.
35.Before examining the main substantive issue, I shall deal briefly with three other aspects.
Principle of equal treatment or of non-discrimination?
36.First, as regards the first ground of appeal, ‘equal treatment’ and ‘non-discrimination’ are simply two labels for a single Community law principle, commonly expressed, in the Court’s abundant case-law on the subject, as a prohibition on treating similar situations differently, or different situations in the same way, without any objective ground for doing so.
37.What Europe Chemi-Con really appears to be arguing here is that the Court of First Instance should have interpreted its first plea in law as relating not to the general Community law principle, whatever its designation, but rather to the specific prohibition of discrimination in anti-dumping proceedings, which is expressed in Article 9(5) of the basic regulation and which may be subject to specific requirements in its interpretation and application.
38.However, it is clear that the Court of First Instance did have regard in its assessment to both Article 9(5) and the principle of equal treatment or non-discrimination. There is therefore no basis for Europe Chemi-Con’s complaint as regards the categorisation of its first plea in law. The question which has to be decided is whether, as Europe Chemi-Con alleges in its remaining submissions, the Court of First Instance was wrong to decide that there was no infringement of either norm. The first ground of appeal must therefore be dismissed.
Mandatory nature of Article 9(5) of the basic regulation
39.Next, in the third limb of its second ground of appeal, Europe Chemi-Con argues that Article 9(5) of the basic regulation is a mandatory provision and the Council does not, as the Court of First Instance appears to state, have any discretion as to its application.
40.However, there is nothing in paragraph 58 of the judgment under appeal to the effect that Article 9(5) is a discretionary provision. The Court of First Instance states rather that it did not apply where one set of circumstances was governed by Article 11(2) and the other was not. Again, the issue is whether that interpretation was correct.
Ambiguity of reasoning
41.Thirdly, in the first limb of its third ground of appeal, Europe Chemi-Con argues that it is unclear, from paragraphs 52 and 57 of the judgment under appeal, read together, whether the Court of First Instance took the view (a) that the two situations in issue were not alike, so that the principle of equal treatment could not apply, or (b) that they were alike, but a difference in treatment was justified by substantial objective differences.
42.As the appellant itself acknowledges, either interpretation leads to the same conclusion, namely that, as the Court of First Instance decided, there was no breach of the principle of equal treatment. The reasoning thus cannot be regarded as inadequate.
The main substantive issue
43.Europe Chemi-Con’s challenge against the judgment under appeal is, essentially, that the Court of First Instance erred in law in finding that, in the circumstances of the case, the Council rightly terminated the anti-dumping duties on LAECs from Japan with effect from 28 February 1999 and was not required to antedate that effect even further to 4 December 1997.
44.On the one hand, the appellant alleges, that finding was contrary to a proper interpretation and application of Article 9(5) of the basic regulation; on the other, it was inconsistent with the general principle of equal treatment (or non-discrimination) in Community law.
45.Article 9(5) is undeniably an embodiment of the principle of equal treatment and contains nothing which purports to limit or derogate from that principle. One of the main thrusts of Europe Chemi-Con’s argument is however that Article 9(5) goes further than that general principle. It might thus play a role in its own right in the present case if it were to appear that there was no breach of the general principle but that the provision contains further specific requirements which were not respected.
46.I shall therefore consider the issue as a whole in the light of the principle of equal treatment, with possible further illumination, if appropriate, from the expression of that principle in Article 9(5) of the basic regulation.
47.The background, set out in paragraphs 12 to 20 above, is undisputed.
48.In paragraphs 54 and 56 of the judgment under appeal, the Court of First Instance noted that the initial investigation (United States and Thailand) was governed by Article 5 of the basic regulation, so that no duties – provisional or definitive – are collected if the proceedings are terminated at that stage, whereas the expiry review (inter alia, Japan) was governed by Article 11(2), under which duties are to remain in force pending the outcome of the review.
49.In paragraph 57, with which Europe Chemi-Con takes issue in the second limb of its third ground of appeal, the Court of First Instance held that ‘even if the investigations were carried out simultaneously on similar products originating in different countries for the same period of investigation and similar conclusions were reached as to dumping, injury and the Community interest, the difference in treatment … has a legislative basis in the basic regulation and therefore cannot be regarded as constituting an infringement of the principle of equal treatment’. In support of that conclusion, it cited the judgment in Sermes,(17) paragraphs 45 to 48.
50.Sermes was a case in which an anti-dumping duty had been imposed on certain goods imported from, inter alia, the German Democratic Republic, as it then was. Pursuant to the Protocol on German internal trade and connected problems annexed to the EEC Treaty, the Federal Republic of Germany was exonerated from applying the rules of Community law to German internal trade; the German Democratic Republic, while not a member of the Community, was not a non-member country vis-à-vis the Federal Republic of Germany. The duty therefore did not apply to imports from the former into the latter. Sermes, an importer of the same goods into France where they were subject to the duty, alleged infringement of the principle of equal treatment. The Court however held that ‘the difference of treatment referred to by Sermes has a legislative basis in that Protocol, which forms an integral part of the Treaty and cannot therefore be regarded as discriminatory’.
51.Europe Chemi-Con stresses the many features of similarity between the two investigations in the present case, as acknowledged both in the contested regulation and the judgment under appeal, and argues that the reasoning in Sermes – the only case in which a difference in legal basis has been considered a sufficiently substantial objective justification to overcome the requirement of equal treatment – is posited on the fact that the protocol in question was primary Community law prevailing over the then basic regulation; it cannot be transposed to the present situation, which involves hierarchically equal norms.
52.The Council and the Commission on the other hand assert that the decisive factor in Sermes was the difference in legislative basis and that the relationship of the different bases within the hierarchy of norms was irrelevant. In the present case, the substantial difference between the two investigations comprised the difference in legislative basis, the difference in the stage of the procedure and the fact that duty had already been imposed and collected in one case whereas in the other it had not.
53.I find it difficult to agree with the interpretation of Sermes put forward by the Council and the Commission, which appears also to be that of the Court of First Instance.
54.First, the formulation adopted by the Court of Justice in Sermes clearly suggests that it was relying on the existence of a legislative basis which was not only different but formed an integral part of the Treaty.
55.Second, that judgment has never been cited by the Court as authority for the proposition that whenever two situations are governed by different legislative provisions they are necessarily objectively different, so that the principle of equal treatment cannot come into play; nor does the Court ever appear to have enunciated such a proposition, which would elevate form over substance.
56.Indeed, if that proposition were correct in such general terms, it would appear to allow the Community legislature to enact different provisions to govern arbitrarily distinguished situations, without any possibility of review by the Court on the basis of the principle of equal treatment. That cannot be the case.
57.Rather, where two situations are treated differently on the basis of different Community provisions, the Court must be able to verify whether the differences between the situations justify the application of differing provisions. The fact that different provisions apply is part of the treatment itself and not part of the objective situation which may either require equal treatment or justify differing treatment.
58.At the material time in Sermes, the relationship between the then German Democratic Republic and the Federal Republic of Germany was objectively different, on clear historical and political grounds, from that between the German Democratic Republic and the other Member States of the Community.
59.Nor can it suffice, as the Council and the Commission argue, simply to say that the two investigations were at different procedural stages. Different stages in an anti-dumping procedure may none the less have enough relevant features in common for the principle of equal treatment to be applicable when deciding whether duties are to be levied.
60.In the judgment under appeal, the Court of First Instance did not consider whether the initial investigation under Article 5 of the basic regulation and the expiry review governed by Article 11(2) were objectively different, but relied solely on the difference in legislative basis in order to conclude that there could be no infringement of the principle of equal treatment.
61.In that, I consider that it erred in law. The second limb of Europe Chemi-Con’s third ground of appeal should therefore be upheld and the judgment under appeal set aside in so far as it dismissed the applicant’s first plea in law.
62.In view of that conclusion, it may be unnecessary to consider whether the Court of First Instance also specifically misinterpreted or misapplied Article 9(5) of the basic regulation, as alleged in the first and second limbs of Europe Chemi-Con’s second ground of appeal. However, the following brief remarks may be made.
63.At paragraph 58 of its judgment, the Court of First Instance stated that ‘the Council is not obliged to refrain from applying Article 11(2) of the basic regulation on the basis of Article 9(5) of that regulation. The latter provision relates only to the imposition of anti-dumping duties. In this case, the anti-dumping duties which the applicant had to pay during the period from 4 December 1997 to 28 February 1999 were imposed by Regulation No 3482/92 and continued to be collected on the basis of Article 11(2) of the basic regulation, which is a specific provision. Thus, the applicant had to continue paying anti-dumping duties on the basis of Article 11(2) of the basic regulation irrespective of the initiation of the initial investigation on imports from the United States and Thailand.’
64.Europe Chemi-Con takes issue with the statements that Article 9(5) ‘relates only to the imposition of anti-dumping duties’ and that Article 11(2) ‘is a specific provision’ – with the implication that the prohibition of discrimination in Article 9(5) does not apply to it.
65.In that connection, the parties have devoted some argument to the distinction between the imposition and the collection of duties. Any difference between their views seems however more apparent than real. The appellant, the Council and the Commission in fact all appear to agree that – whatever the correct interpretation of Article 9.2 of the Anti-dumping Code(18) – Article 9(5) of the basic regulation applies not merely to the initial decision to impose duties but to their continued imposition (entailing their continued collection) by virtue of Article 11(2). Indeed, that view is inherent in the decision to terminate the proceeding concerning imports from Japan with retroactive effect from 28 February 1999, as set out in particular in recitals 135 and 138 of the contested regulation. Nor can I find anything in the scheme or wording of the basic regulation that suggests a different interpretation – which would in any event seem inconsistent with a provision designed to embody the principle of equal treatment.
66.It is not entirely clear precisely how the Court of First Instance interpreted the basic regulation in paragraph 58 of its judgment, but if and to the extent that it intended to say that Article 9(5) did not apply to the continued imposition of duties pursuant to Article 11(2), it was in my view wrong in law.
The application for annulment
67.If the judgment under appeal is set aside, the Court of Justice may itself give final judgment on the action at first instance, pursuant to Article 61 of its Statute, where the state of the proceedings so permits. In the present case, there has been adequate debate.
68.There is no dispute that it was appropriate for the contested regulation to apply retroactively. The only issue to be decided is the date from which that retroactive application should take effect.
69.In the contested regulation, it was decided that the date should be 28 February 1999, essentially on the ground that no anti-dumping duties were imposed on imports from the United States or Thailand after that date, so that none could be imposed on imports from Japan.
70.I do not find that reasoning, reiterated by the Council and the Commission in the present proceedings, convincing.
71.The date in question does not in fact mark the beginning of a period of non-imposition of duties on imports from the United States and Thailand. Rather, as the final date on which the Council could have imposed definitive duties on those products, it had a dual significance: no future definitive duties were imposed, and the past provisional duties were not collected.
72.Thus, the situation of imports from those countries did not in reality change in any way on 28 February 1999. Both before and after that date, there was no imposition of duty. Nor did the situation change as regards imports from Japan. Both before and after that date, duties continued to be imposed pursuant to Article 11(2) of the basic regulation, while the review continued, and the conclusion that they should be renewed seems to have been reached later.(19)
73.Since the determination of the proper date for the entry into effect of the contested regulation depends on the application of the principle of equal treatment, a date on which neither of the situations to be compared in fact changed cannot be appropriate.
74.The date of 4 December 1997, advanced by Europe Chemi-Con, is however appropriate in the light of that principle. On that date, the situation as regards imports from Japan did change. The definitive duties imposed were no longer collected on the basis of the original findings of dumping, injury and Community interest, but on the basis of a provision which implicitly assumes that those factors continue to prevail pending the outcome of an expiry review.
75.Moreover, a similar assumption underlies the provisional duties imposed on imports from the United States and Thailand at the same time. In both cases, from 4 December 1997 onwards, an investigation had been initiated and was continuing. Both investigations led the Commission to essentially the same conclusion regarding products of the same type. It seems reasonable that both situations should be treated in the same way as regards the imposition of duties and that, if no duties were collected at any time during that period on imports from the United States and Thailand, none should have been collected on imports from Japan.
76.Accordingly, I take the view that the regulation should apply with effect from 4 December 1997.
77.However, that retrospective extension can concern only the appellant. In a finding on admissibility at paragraph 30 of the judgment under appeal, which has not been challenged, the Court of First Instance noted that Europe Chemi-Con was seeking annulment of the second paragraph of Article 3 of the contested regulation ‘to the extent that that provision concerns it’. And in Nachi Europe,(20) the Court of Justice confirmed 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’.
78.Consequently, the Court’s decision in the present case can concern the contested regulation only in so far as it affects imports by Europe Chemi-Con of LAECs produced in Japan by its parent company Nippon Chemi-Con.
Conclusion
79.I am therefore of the opinion that the Court should:
(1)set aside the judgment of the Court of First Instance in Case T-89/00 in so far as it dismissed the applicant’s first plea in law;
(2)annul the second paragraph of Article 3 of Council Regulation No 173/2000 in so far as it concerns LAECs imported by Europe Chemi-Con and manufactured in Japan by Nippon Chemi-Con, to the extent that it does not provide that the regulation is to apply in that regard from 4 December 1997;
(3)order the Council to bear the costs, both at first instance and on appeal, with the exception of those of the Commission which, as intervener, must bear its own costs.
1 – Original language: English.
2 – Of 22 December 1995, OJ 1996 L 56, p. 1.
3 – Also known, more picturesquely, as a ‘sunset review’.
4 – Uruguay Round of Multilateral Trade Negotiations (1986-1994) ─ Annex 1 ─ Annex 1A ─ Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (WTO-GATT 1994), OJ 1994 L 336, p. 103; see recitals 3 to 5 in the preamble to the basic regulation.
5 – Council Regulation (EEC) No 3482/92 of 30 November 1992 imposing a definitive anti-dumping duty on imports of certain large electrolytic aluminium capacitors originating in Japan and collecting definitively the provisional anti-dumping duty, OJ 1992 L 353, p. 1.
6 – Council Regulation (EC) No 1384/94 of 13 June 1994 imposing a definitive anti-dumping duty on imports of large aluminium electrolytic capacitors originating in the Republic of Korea and Taiwan, OJ 1994 L 152, p. 1.
7 – OJ 1997 C 363, p. 2.
8 – OJ 1997 C 365, p. 5.
9 – OJ 1998 C 107, p. 4.
10 – Commission Regulation (EC) No 1845/98 of 27 August 1998 imposing a provisional anti-dumping duty on imports of certain large electrolytic aluminium capacitors originating in the United States of America and in Thailand, OJ 1998 L240, p. 4.
11 – Of 24 January 2000 terminating the anti-dumping proceedings concerning imports of certain large aluminium electrolytic capacitors originating in Japan, the Republic of Korea and Taiwan, OJ 2000 L 22, p. 1.
12 – The slight discrepancy between this claim and Nippon Chemi-Con's previous claim that effect should be retroactive as from 3 December may simply derive from the fact that what was meant was ‘as from midnight on 3 December’. In any event, it is clear that retroactive effect as from 4 December 1997, the first day on which duties were levied pursuant to Article 11(2) of the basic regulation rather than Regulation No3482/92, is what is claimed in the present proceedings.
13 – Case T-89/00 Europe Chemi-Con (Deutschland) [2002] ECR II-3651.
14 – Citing Case C-390/98 Banks [2001] ECR I-6117, paragraph 35 of the judgment.
15 – Where no definitive duties are imposed, it seems to be Community practice not to collect provisional duties, although there seems to be no legislative requirement to that effect.
16 – Case C-323/88 [1990] ECR I-3027, paragraphs 45 to 48.
17 – Cited in note 16.
18 – The Council has produced a GATT Panel report of 4 July 1995 (ADP/137 EC – Imposition of anti-dumping duties on cotton yarn from Brazil) which suggests (particularly at paragraphs 557 and 558) that Article 9.2 (in fact its identically-worded predecessor, Article 8.2 of the 1979 Anti-dumping Code) applies only at the collection stage, and not to decisions to impose duty.
19 – See the disclosure document of 21 May 1999 produced as Annex IX to the application at first instance.
20 – Case C-239/99 [2001] ECR I-1197, at paragraph 22 of the judgment.