61993J0030

++++

1. Preliminary rulings ° Jurisdiction of the Court ° Limits ° Jurisdiction of the national court ° Determination and assessment of the facts of the dispute ° Need for a preliminary ruling and relevance of the questions raised ° Assessment by the national court

(EEC Treaty, Art. 177)

2. Common commercial policy ° Protection against dumping ° Regulation imposing an anti-dumping duty ° Products identified by reference to an outdated version of the Combined Nomenclature ° Corrigendum substituting references ° Scope of regulation unchanged ° Validity

(Commission Regulation No 165/90)

1. Under Article 177 of the Treaty, which is based on a clear separation of functions between the national courts and the Court of Justice, the latter is empowered to rule only on the interpretation or validity of Community provisions on the basis of the facts which the national court puts before it. It is not for the Court of Justice, but for the national court, to ascertain the facts which have given rise to the dispute and to establish the consequences which they have for the judgment which it is required to deliver. It is, moreover, solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of each case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court.

2. If the products in question remain the same, the fact that a regulation imposing anti-dumping duties has been made the subject of a corrigendum since its publication does not affect the validity of the final version if the sole purpose of the corrigendum is to replace identification of the products by reference to a version of the Combined Nomenclature no longer in force with references to codes under that nomenclature as since amended. Such a corrigendum merely corrects a clerical error without altering the scope of the regulation.

In Case C-30/93,

REFERENCE to the Court under Article 177 of the EEC Treaty by the Finanzgericht (Finance Court) Munich (Federal Republic of Germany) for a preliminary ruling in the proceedings pending before that court between

AC-ATEL Electronics Vertriebs GmbH

and

Hauptzollamt Muenchen-Mitte

on the validity of Commission Regulation (EEC) No 165/90 of 23 January 1990 imposing a provisional anti-dumping duty on imports of certain types of electronic microcircuits known as DRAMs (dynamic random access memories) originating in Japan, accepting undertakings offered by certain exporters in connection with the anti-dumping proceeding concerning imports of these products and terminating the investigation in their respect (OJ 1990 L 20, p. 5), as amended by a corrigendum published on 10 February 1990 (OJ 1990 L 38, p. 44),

THE COURT (Third Chamber),

composed of: J.C. Moitinho de Almeida, President of the Chamber, F. Grévisse (Rapporteur) and M. Zuleeg, Judges,

Advocate General: C.O. Lenz,

Registrar: H. von Holstein, Deputy Registrar,

after considering the written observations submitted on behalf of:

° the Commission of the European Communities, by Eric L. White, of its Legal Service, acting as Agent, assisted by Claus-Michael Happe, Rechtsanwalt, Cologne,

having regard to the Report for the Hearing,

after hearing the oral observations of the applicant in the main proceedings, represented by Christian Fleischmann, Assessor, of Munich, assisted by Wolf Beitelrock, an engineer at AC-ATEL, as Expert, and of the Commission at the hearing on 10 February 1994,

after hearing the Opinion of the Advocate General at the sitting on 14 April 1994,

gives the following

Judgment

1 By order of 25 November 1992, received at the Court on 1 February 1993, the Finanzgericht (Finance Court) Munich (Federal Republic of Germany) referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question as to the validity of Commission Regulation (EEC) No 165/90 of 23 January 1990 imposing a provisional anti-dumping duty on imports of certain types of electronic microcircuits known as DRAMs (dynamic random access memories) originating in Japan, accepting undertakings offered by certain exporters in connection with the anti-dumping proceeding concerning imports of these products and terminating the investigation in their respect (OJ 1990 L 20, p. 5), as amended by a corrigendum published on 10 February 1990 (OJ 1990 L 38, p. 44).

2 The Finanzgericht is unsure as to the effect of the corrigendum.

3 DRAMs (dynamic random access memories) are monolithic integrated circuits, which may take the form of finished memories, assembled and with their connections, or the form of chips, or the form of wafers not yet cut into chips. The only product in dispute in the main proceedings is one which falls within the category of finished memories.

4 The tariff classification of DRAMs was amended several times between 1987 and 1990. In 1987 all DRAMs fell within tariff subheading ex 85.21 D of the Common Customs Tariff (hereinafter "the CCT"). Under the CCT in force in 1988 and 1989 DRAMs in the form of finished memories came within tariff subheading 8542 11 71. Under the CCT in force in 1990, as enacted by Commission Regulation (EEC) No 2886/89 of 2 August 1989 amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 1989 L 282, p. 1), tariff subheading 8542 11 71 was withdrawn and DRAMs in the form of finished memories were broken down into three new tariff subheadings as follows:

" ... Dynamic random-access memories (D-RAMs):

8542 11 41 ° With a storage capacity not exceeding 256 Kbits

8542 11 43 ° With a storage capacity exceeding 256 Kbits but not exceeding 4 Mbits

8542 11 45 ° With a storage capacity exceeding 4 Mbits".

5 In the notice of initiation of an anti-dumping proceeding published in the Official Journal of the European Communities on 9 July 1987 (OJ 1987 C 181, p. 3), the products allegedly being dumped were DRAMs "of all densities and types" falling within subheading ex 85.21 D of the CCT.

6 Regulation No 165/90, referred to above, imposed a provisional anti-dumping duty on imports of DRAMs of all densities and types.

7 Article 1(1) of that regulation imposed an anti-dumping duty on DRAMs "falling within CN codes ex 8473 30 00, ex 8542 11 10, ex 8542 11 30, ex 8542 11 71 or ex 8548 00 00 (...), originating in Japan".

8 The corrigendum, published in the Official Journal of the European Communities on 10 February 1990, made a series of corrections aimed primarily at withdrawing all references to CN code ex 8542 11 71 and replacing them by references to the new CN codes 8542 11 41, 8542 11 43 and 8542 11 45.

9 Finally, Council Regulation (EEC) No 2112/90 of 23 July 1990, imposing a definitive anti-dumping duty on imports of certain types of electronic microcircuits known as DRAMs (dynamic random access memories) originating in Japan and collecting definitively the provisional duty (OJ 1990 L 193, p. 1) imposed a definitive anti-dumping duty on, in particular, finished DRAMs falling within CN codes 8542 11 41, 8542 11 43 and 8542 11 45.

10 The question on which a preliminary ruling is sought arose in proceedings between AC-ATEL Electronics Vertriebs GmbH (hereinafter referred to as "AC-ATEL") and the Hauptzollamt (Principal Customs Office) Muenchen-Mitte, concerning the imposition of an anti-dumping duty on integrated circuits manufactured by the Japanese company Toshiba, ordered in Hong Kong and declared on 5 April 1990 by AC-ATEL to the customs office of Riem Airport, Munich, under tariff subheading 8542 11 43, with a view to their being released into free circulation. The goods were described by AC-ATEL as "dual port dynamic read/write random access memories with a storage capacity of 1 Mbit ...". The national court has confirmed the accuracy of the classification under which the goods were declared.

11 AC-ATEL challenged the securing of amounts by way of provisional anti-dumping duty. Having failed to obtain satisfaction from the Hauptzollamt, it then challenged the imposition of the definitive anti-dumping duty, determined by the Hauptzollamt on 30 April 1991 pursuant to Regulation No 2112/90, referred to above. Since the latter complaint was unsuccessful, the dispute was brought before the Finanzgericht Munich.

12 The national court takes the view that Regulation No 2112/90 cannot apply to products falling within tariff subheading 8542 11 43 of the CCT until after 26 July 1993, and that the Hauptzollamt therefore had no right to impose an anti-dumping duty on goods imported by AC-ATEL in April 1990. It notes that goods falling within subheading 8542 11 43 are not mentioned in Commission Regulation No 165/90 and concludes that provisional anti-dumping duty could not therefore be collected in respect of those products on the basis of that regulation. It notes that subheading 8542 11 43 was incorporated into Regulation No 165/90 by the corrigendum of 10 February 1990. The court doubts whether a Community regulation can be amended by a mere corrigendum such as that published in the Official Journal on 10 February 1990.

13 In those circumstances, the national court stayed the proceedings and referred the following question to the Court for a preliminary ruling:

"Is Commission Regulation (EEC) No 165/90 of 23 January 1990 imposing a provisional anti-dumping duty on imports of certain types of electronic microcircuits known as DRAMs (dynamic random access memories), as amended by the corrigendum of 10 February 1990, valid?"

14 At the hearing AC-ATEL, which did not lodge any written observations, alleged that, using the disputed corrigendum, the Commission brought other random access memories, known as RAM videos and falling within CN code 8542 11 43, within the scope of Regulation No 165/90. Those goods, it argued, are not similar to DRAMs and should not have been subjected to a provisional anti-dumping duty. However, AC-ATEL does not state clearly whether it considers the goods in dispute in the main proceedings to be RAM videos.

15 The Commission states that, on the basis of the order for reference, it has proceeded on the assumption that the goods in dispute were DRAMs. It denies that AC-ATEL has any right to have the facts re-assessed. It argues that, in any case, the corrigendum has not in any way altered the definition of the goods covered by Regulation No 165/90, which include DRAMs used for video applications, or in other words DRAMs used to make RAM videos.

16 On that point, it should be borne in mind that Article 177 of the Treaty is based on a clear separation of functions between the national courts and the Court of Justice, so that, when ruling on the interpretation or validity of Community provisions, the latter is empowered to do so only on the basis of the facts which the national court puts before it (see the judgment in Case 104/77 Oehlschlaeger v Hauptzollamt Emmerich [1978] ECR 791, point 4).

17 It is not for the Court of Justice, but for the national court, to ascertain the facts which have given rise to the dispute and to establish the consequences which they have for the judgment which it is required to deliver (see the judgment in Case 17/81 Pabst & Richarz v Hauptzollamt Oldenburg [1982] ECR 1331, paragraph 12).

18 It is, moreover, solely for the national court before which the dispute has been brought, and which must assume the responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of each case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the question which it submits to the Court (see the judgments in Case 247/86 Alsatel v Novasam [1988] ECR 5987, paragraph 8, and in Case C-127/92 Enderby v Frenchay Health Authority and Secretary of State for Health [1993] ECR I-5535, paragraph 10).

19 The Finanzgericht Munich has stated in its order for reference that the circuits imported by AC-ATEL were unquestionably products falling within tariff subheading 8542 11 43, namely DRAMs with a storage capacity exceeding 256 Kbits but not exceeding 4 Mbits. It is also apparent from the order for reference that the national court implicitly refused to submit to the Court the question raised by AC-ATEL at the hearing.

20 It is therefore necessary to answer only the Finanzgericht' s question, which concerns the point whether the corrigendum published in the Official Journal on 10 February 1990 altered the scope of Regulation No 165/90 by extending its application to DRAM memories under CN code 8542 11 43 whilst, in its initial version, the regulation applied only to finished memories under CN code 8542 11 71, or whether, on the contrary, the corrigendum was intended only to correct certain references to the combined nomenclature of the CCT.

21 The Court has consistently held that, in interpreting a provision of Community law, it is necessary to consider not only its wording but also its context and the aims pursued by the legislation of which it forms part (see the judgment in Case C-136/91 Findling Waelzlager v Hauptzollamt Karlsruhe [1993] ECR I-1793, paragraph 11).

22 It follows from the parallel development of the tariff and the anti-dumping legislation that the products in question in the main proceedings were included within the scope of the anti-dumping proceeding from the moment of its initiation. However, as regards DRAMs in the form of finished memories, the Commission failed to refer in the initial version of Regulation No 165/90 to the CCT codes in force on 1 January 1990, and referred in error to the CCT codes in force in 1989.

23 Tariff subheading 8542 11 71 was removed from the CCT in force for 1990 and replaced by three more detailed subheadings, including subheading 8542 11 43.

24 The purpose of the corrigendum published in the Official Journal on 10 February 1990 was to correct the erroneous reference, on each occasion it was necessary, by replacing the code 8542 11 71, which had been incorrect since 1 January 1990, by the new codes 8542 11 41, 8542 11 43 and 8542 11 45. It did not alter the scope of the regulation at issue as regards the products mentioned in the order for reference. It merely corrected a clerical error which had no effect on the content of the relevant legislation and therefore does not render Regulation No 165/90 in any way unlawful.

25 The reply to be given to the Finanzgericht should therefore be that consideration of the question referred to the Court has not disclosed any factor of such a kind as to affect the validity of Regulation No 165/90, as amended by the corrigendum published on 10 February 1990.

Costs

26 The costs incurred by the Commission of the European Communities, which has submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT (Third Chamber),

in answer to the question referred to it by the Finanzgericht Munich, by order of 25 November 1992, hereby rules:

Consideration of the question referred to the Court for a preliminary ruling has not disclosed any factor of such a kind as to affect the validity of Commission Regulation (EEC) No 165/90 of 23 January 1990 imposing a provisional anti-dumping duty on imports of certain types of electronic microcircuits known as DRAMs (dynamic random access memories) originating in Japan, accepting undertakings offered by certain exporters in connection with the anti-dumping proceeding concerning imports of these products and terminating the investigation in their respect, as amended by the corrigendum published on 10 February 1990.