61997B0213

1 Common commercial policy - Protection against dumping - Imposition of definitive duties - Powers of the Council - Assessment of the Community interest - Judicial review - Limits - Application for an interim order requiring the Council to adopt the Commission's proposal to impose definitive anti-dumping duties - Rejection

(EC Treaty, Arts 185 and 186; Council Regulation No 384/96, Arts 9(4) and 10(2))

2 Applications for interim measures - Suspension of operation of a measure - Interim measures - Application for suspension of a negative act - Rejection

(EC Treaty, Arts 185 and 186)

3 Applications for interim measures - Suspension of operation of a measure - Interim measures - Conditions for granting - Urgency - Serious and irreparable damage - Pecuniary damage

(EC Treaty, Arts 185 and 186; Rules of Procedure of the Court of First Instance, Art. 104(2))

4 Applications for interim measures - Suspension of operation of a measure - Interim measures - Conditions for granting - Urgency - Applicant's own interest - Undertakings in the sector concerned - Associations responsible for protecting the collective interests of undertakings in the sector concerned

(EC Treaty, Arts 185 and 186; Rules of Procedure of the Court of First Instance, Art. 104(2))

5 Under Articles 9(4) and 10(2) of the basic anti-dumping regulation, No 384/96, it is for the Council, in accordance with the procedure laid down therein, to decide on the imposition of definitive duties and, if need be, on the definitive collection of provisional duties. In conferring this power upon it, the Community legislature has left it to the Council to decide whether and to what extent it is necessary to follow the Commission's proposal and it is not therefore obliged prima facie to adopt it in any case.

At this stage of the procedure provided for by that regulation, the Council enjoys the broad discretion which the Community authorities have in deciding whether to adopt protective measures under that regulation, after evaluating, in particular, the interests of the Community, which involves the appraisal of complex economical situations. Without it being necessary, in the interlocutory proceedings, to determine the limits of that power of assessment of the Council, in particular in relation to the Commission's powers in undertaking the investigation, an order requiring the Council to adopt the Commission's proposal to impose definitive anti-dumping duties would, at first sight, involve an interference with that power, incompatible with the distribution of powers between the various Community institutions, and the grant of such an order cannot therefore be entertained.

6 Where suspension of operation concerns a negative act and, in particular, would not have the consequence of requiring the institution concerned to adopt the measures sought, it presents no interest for the applicants and cannot therefore be ordered by the judge hearing such an interlocutory application.

7 The urgency of an application for suspension of operation of an act or for interim measures must be assessed in relation to the necessity for an interim order to prevent serious and irreparable damage to the party applying for interim measures. It is for that party to prove that it cannot wait for the outcome of the main proceedings without suffering serious and irreparable damage.

Damage of a purely pecuniary nature cannot, save in exceptional circumstances, be regarded as irreparable or even as being reparable only with difficulty if it can ultimately be the subject of financial compensation.

8 When the conditions for the grant of suspension of operation or of interim measures are examined, the applicants, as individual undertakings in the sector concerned or as an association responsible for protecting the collective interests of those individual undertakings, cannot simply rely, in order to establish the urgency of their application, on interests which would not reflect their own or, specifically as regards the association, on interests which would not at any rate correspond, depending on the case, to those which it is called upon to protect. It is for the judge hearing the interim application to take account of other interests involved, for example, the interest in the maintenance of employment, in determining whether there are grounds for granting the interlocutory application.