Keywords
Summary

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1. Actions for damages ° Periods within which actions must be brought ° Five-year limitation period ° Application for damages addressed to the institutions and not followed by an action for annulment or for failure to act ° Irrelevant

(EEC Treaty, Arts 173 and 175; Statute of the Court of Justice of the EEC, Art. 43)

2. Actions for damages ° Prior exhaustion of national legal remedies ° Subsequent application to the Community courts for the purpose of obtaining reparation for the damage resulting from the allegedly inadequate nature of the amount obtained in respect of costs before the national court ° Exclusive jurisdiction of the national court applying national law ° Inadmissible

(EEC Treaty, Arts 178 and 215, second para.; Rules of Procedure of the Court of Justice, Art. 104(5))

3. Actions for damages ° Prior exhaustion of national legal remedies ° Exception ° Impossibility of obtaining reparation before the national court ° Application for compensation for the damage resulting from the need to borrow money in order to pay anti-dumping duties imposed by a regulation declared invalid ° Admissible

(EEC Treaty, Arts 178 and 215, second para.)

4. Non-contractual liability ° Conditions ° Legislative measure involving choices of economic policy ° Measure occurring in an anti-dumping proceeding ° Sufficiently serious breach of a superior rule of law for the protection of the individual

(EEC Treaty, Art. 215, second para.)

5. Non-contractual liability ° Conditions ° Legislative measure ° Inadequacy in the statement of reasons ° No liability

(EEC Treaty, Arts 190 and 215, second para.)

6. Community law ° Principles ° Right to a fair hearing ° Observance of that right in administrative proceedings ° Anti-dumping ° Persons enjoying such a right entitled to plead a breach of that right before national courts ° Independent importer ° Not so entitled

7. Community law ° Principles ° Principle of care ° Compliance with that principle in administrative proceedings ° Anti-dumping ° Obligation on the Commission to examine in a serious and detailed manner the arguments adduced by an independent importer allowed to take part in the proceeding as an "interested party"

8. Non-contractual liability ° Conditions ° Legislative measure involving choices of economic policy ° Sufficiently serious breach of a superior rule of law for the protection of the individual ° Mistaken assessment of the extent of the obligations following from the duty of care in an anti-dumping proceeding ° Liability not incurred

(EEC Treaty, Art. 215, second para.)

Summary

1. Where a request for indemnification of damage addressed to the Community institutions is not followed by an action for annulment or an action for failure to act within the time-limits laid down for that purpose by Articles 173 and 175 of the Treaty, an action for damages will remain admissible if it is brought within the five-year period provided for under Article 43 of the Statute of the Court of Justice of the EEC, the purpose of that article being to postpone the expiration of the period of five years and not to shorten the five-year limitation period established thereby.

2. An applicant who, considering that a Community regulation imposing anti-dumping duties is illegal, has justifiably contested the manner in which the national authorities applied that regulation to him before the national court, which, after having made use of the preliminary reference procedure, upholds his application, but who has not obtained from that court the amount in respect of costs which he considered to be owing to him, is not entitled to bring an action before the Community courts for damages in that amount by arguing that the adoption of that regulation was defective.

If the protection of his rights can be effectively guaranteed by the national court, it is before that court that the applicant must first bring his action, and the dispute and ancillary questions relating thereto, such as that of costs, must be resolved by application of national law in so far as Community law has not determined the matter.

Article 104(5) of the Rules of Procedure of the Court of Justice provides that it is for the national court or tribunal that has made use of the preliminary reference procedure to decide as to the costs arising therefrom.

3. In so far as no remedy under national law enables an undertaking to obtain reparation of the damage consisting in the payment of bank interest on the sums which it borrowed in order to pay anti-dumping duties imposed by a Community regulation declared to be invalid, by reason of the fact that the invalidity of that regulation results from the unlawful conduct of the Community institutions and the national public authorities can incur liability only if fault is established on the part of the national authority, the person concerned cannot be required to have recourse to the national court, which cannot in such a case ensure effective protection for the subjective rights which that person derives from Community law.

It is for that reason that an action brought by the person concerned before the Court of First Instance seeking reparation for the above damage alleged to have been caused by that regulation is admissible.

4. Measures of the Council and Commission in connection with a proceeding relating to the possible adoption of anti-dumping measures constitute legislative action involving choices of economic policy. Community liability can be incurred by virtue of such measures only if there has been a sufficiently serious breach of a superior rule of law for the protection of individuals.

5. A possible inadequacy in the statement of the reasons on which a measure contained in a regulation is based is not sufficient to render the Community liable.

6. An anti-dumping proceeding and any protective measures adopted at the end of such a proceeding are directed only against producers and exporters from non-member countries as well as, where relevant, associated importers, and not against independent importers. It follows that an independent importer cannot claim the benefit of the right to a fair hearing and raise before the court a plea in law based on breach of that right, that possibility being reserved for those who may be adversely affected by a measure resulting from the proceeding.

7. Where the Community institutions have a wide power of appraisal, respect for the rights guaranteed by the Community legal order in administrative proceedings is of even more fundamental importance. Those guarantees include, in particular, the duty of the competent institution to examine carefully and impartially all the relevant aspects of the individual case, and the right of the person concerned to make his views known and to have an adequately reasoned decision.

In that regard, although the rights conferred on parties involved in an anti-dumping proceeding depend on the particular stage of the proceeding, the capacity in which they are taking part and the various provisions of the basic regulation, nevertheless where an independent importer successfully demonstrates a sufficient interest as an "interested party" for the purpose of taking part in an anti-dumping proceeding and the Commission, despite the doubts raised by the importer' s arguments regarding the choice of an appropriate reference country, and in breach of its own obligation, fails to consider seriously and in detail whether those arguments or proposals are well founded, the Commission is in breach of the principle of care, which is a rule protecting individuals.

8. In the context of the wide discretion which the Community institutions have in the implementation of the common commercial policy, the fact that they did not, during an anti-dumping proceeding, fail completely in the duty of care and proper administration which they owed to an independent importer with an interest in the proceeding but simply failed, when choosing the reference country, properly to appreciate the extent of their obligations under that principle cannot be regarded as a sufficiently serious breach or a manifest and grave breach and cannot therefore render the Community liable.