61984J0172

PRELIMINARY RULINGS - JURISDICTION OF THE COURT - LIMITS

( ECSC TREATY , ART . 41 )

ALTHOUGH ARTICLE 41 OF THE EEC TREATY , WHICH IS BASED ON A CLEAR SEPARATION OF FUNCTIONS BETWEEN THE NATIONAL COURTS AND THE COURT OF JUSTICE , DOES NOT PERMIT THE COURT EITHER TO ASSESS THE FACTS OF THE CASE OR TO REVIEW THE GROUNDS ON WHICH THE QUESTION SUBMITTED FOR A PRELIMINARY RULING IS BASED , IT IS NONE THE LESS FOR THE COURT TO SET THE MEASURE WHOSE VALIDITY IS CONTESTED IN CONTEXT IN COMMUNITY LAW AND TO EXAMINE THE CRITERIA FOR INTERPRETATION ESTABLISHED BY COMMUNITY LAW IN ORDER TO BE ABLE TO GIVE THE NATIONAL COURT AN APPROPRIATE ANSWER FOR THE PURPOSE OF RESOLVING THE MAIN DISPUTE .

WHERE THAT EXAMINATION REVEALS THAT THE PROVISION OF COMMUNITY LAW ON WHICH THE COURT HAS BEEN REQUESTED TO GIVE A RULING IS NOT RELEVANT TO THE SOLUTION OF THE MAIN DISPUTE , THE COURT WILL DECLARE THAT IT IS UNNECESSARY FOR IT TO GIVE A DECISION ON THE POINT AT ISSUE .

IN CASE 172/84

REFERENCE TO THE COURT UNDER ARTICLE 41 OF THE ECSC TREATY BY THE TRIBUNALE DI MILANO ( DISTRICT COURT , MILAN ) FOR A PRELIMINARY RULING IN THE PROCEEDINGS PENDING BEFORE THAT COURT BETWEEN

CELESTRI & C . SPA

AND

MINISTRY OF FINANCE

ON THE VALIDITY OF THE BASIC PRICE OF STEEL SHEETS AND PLATES COATED WITH ZINC FALLING UNDER SUBHEADING 73.13 B IV ( C ) 2 OF THE COMMON CUSTOMS TARIFF , WHICH PRICE WAS FIXED BY THE COMMUNICATION FROM THE COMMISSION AMENDING THE BASIC PRICES FOR CERTAIN IRON AND STEEL PRODUCTS ( OFFICIAL JOURNAL 1981 , L 372 , P . 1 ),

1 BY ORDER OF 15 MARCH 1984 , WHICH WAS RECEIVED AT THE COURT REGISTRY ON 3 JULY 1984 , THE TRIBUNALE DI MILANO REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 41 OF THE ECSC TREATY A QUESTION CONCERNING THE VALIDITY OF THE FIXING OF THE BASIC PRICE OF GALVANIZED STEEL SHEETS BY THE COMMUNICATION FROM THE COMMISSION OF 29 DECEMBER 1981 AMENDING THE BASIC PRICES FOR CERTAIN IRON AND STEEL PRODUCTS , FOR THE PURPOSES OF THE CALCULATION OF THE ANTI-DUMPING DUTIES TO BE IMPOSED ON IMPORTS OF SUCH PRODUCTS FROM NON-MEMBER COUNTRIES .

2 THE PARTIES TO THE MAIN PROCEEDINGS ARE CELESTRI & C . SPA ( HEREINAFTER REFERRED TO AS ' CELESTRI ' ), WHICH IMPORTED INTO ITALY IN JANUARY 1982 GALVANIZED STEEL SHEETS ORIGINATING IN THE GERMAN DEMOCRATIC REPUBLIC , AND THE ITALIAN STATE FINANCE ADMINISTRATION WHICH CLAIMED PAYMENT FROM CELESTRI IN AUGUST 1982 OF THE SUM OF LIT 86 942 000 BY WAY OF ANTI-DUMPING DUTIES AND OTHER CHARGES .

3 CELESTRI PAID THE AMOUNT DEMANDED BUT THEN INSTITUTED PROCEEDINGS BEFORE THE TRIBUNALE DI MILANO IN ORDER TO RECOVER IT ON THE GROUND THAT IT HAD BEEN PAID UNDULY . IN PARTICULAR , CELESTRI MAINTAINED THAT THE ABOVE-MENTIONED COMMUNICATION FROM THE COMMISSION CONSTITUTED A DECISION WHICH WAS VOID BECAUSE IT WAS UNLAWFUL AND AMOUNTED TO A MISUSE OF POWER INASMUCH AS IT FIXED THE BASIC PRICE AT A LEVEL HIGHER THAN THE PRICE CHARGED BY COMMUNITY PRODUCERS , CONTRARY TO THE CRITERIA SET OUT IN RECOMMENDATIONS NO 1006/78/ECSC OF 18 MAY 1978 ( OFFICIAL JOURNAL 1978 , L 131 , P . 8 ) AND NO 3018/79/ECSC OF 21 DECEMBER 1979 ( OFFICIAL JOURNAL 1979 , L 339 , P . 15 ) LAYING DOWN RULES ON PROTECTION FOR ECSC PRODUCTS AGAINST DUMPING PRACTICES .

4 COMMISSION RECOMMENDATION NO 1006/78/ECSC IMPOSED AN ANTI-DUMPING DUTY ON CERTAIN GALVANIZED SHEETS ORIGINATING IN THE GERMAN DEMOCRATIC REPUBLIC . ARTICLE 1 ( 2 ) OF THAT RECOMMENDATION PROVIDES THAT ' THE AMOUNT OF THIS DUTY SHALL BE EQUAL TO THE AMOUNT BY WHICH THE EFFECTIVE PRICE ( BASIC PRICE PLUS EXTRAS ) ESTABLISHED BY CONTRACT , FREE ( AT ) FRONTIER DUTY-PAID , IS LOWER THAN THE EFFECTIVE PRICE ( BASIC PRICE PLUS EXTRAS ) LAST PUBLISHED BY THE COMMISSION FOR THIS PRODUCT AT THE TIME OF ITS ENTRY FOR COMMUNITY CONSUMPTION ' .

5 AS IS CLEAR FROM THE DOCUMENTS BEFORE THE COURT , THE PRODUCTS AT ISSUE IN THIS CASE WERE IMPORTED IN JANUARY 1982 AND THE STATE FINANCE ADMINISTRATION THEREFORE APPLIED , PURSUANT TO ARTICLE 1 ( 2 ) OF RECOMMENDATION NO 1006/78 , THE EFFECTIVE IMPORT PRICE LAST PUBLISHED , THAT IS TO SAY THE PRICE FIXED BY THE COMMUNICATION FROM THE COMMISSION PUBLISHED ON 29 DECEMBER 1981 , THE VALIDITY OF WHICH IS CONTESTED BY CELESTRI .

6 IN ORDER TO ENABLE IT TO GIVE A DECISION ON THE MATTER , THE TRIBUNALE DI MILANO , BY ORDER OF 15 MARCH 1984 , STAYED THE PROCEEDINGS AND REFERRED TO THE COURT FOR A PRELIMINARY RULING , A QUESTION CONCERNING THE VALIDITY OF

' THE COMMUNICATION FROM THE COMMISSION AMENDING THE BASIC PRICES FOR CERTAIN IRON AND STEEL PRODUCTS ( OFFICIAL JOURNAL 1981 , L 372 , P . 1 ) AS REGARDS THE BASIC PRICE OF GOODS FALLING UNDER TARIFF SUBHEADING 73.13 B IV ( C ) 2 - STEEL SHEETS AND PLATES COATED WITH ZINC BY OTHER PROCESSES : 1 . SUPPLIED IN REELS ( COILS ); QUALITY 1 ; FE OOGZ ; BETWEEN 0.5 MM AND 1.25 MM THICK ' .

7 IN THE OBSERVATIONS WHICH IT HAS SUBMITTED TO THE COURT , HOWEVER , CELESTRI MAINTAINS PRIMARILY THAT THIS QUESTION IS NOT MATERIAL SINCE THE COMMUNICATION FROM THE COMMISSION OF 29 DECEMBER 1981 IS NOT APPLICABLE TO THIS CASE . CELESTRI CONTENDS THAT THE ABOVE-MENTIONED PROVISION IN ARTICLE 1 ( 2 ) OF RECOMMENDATION NO 1006/78/ECSC WAS REPLACED BY ARTICLE 1 OF RECOMMENDATION NO 3140/78/ECSC OF 29 DECEMBER 1978 ( OFFICIAL JOURNAL 1978 , L 372 , P . 1 ) WHICH PROVIDES THAT THE ' AMOUNT OF THE ANTI-DUMPING DUTIES IMPOSED BY RECOMMENDATIONS . . . NO 1006/78/ECSC . . . SHALL HENCEFORTH BE EQUAL TO THE AMOUNT BY WHICH THE EFFECTIVE PRICE ( BASIC PRICE PLUS EXTRAS ) ESTABLISHED BY CONTRACT , FREE-AT-FRONTIER DUTY-PAID , IS LOWER THAN THE EFFECTIVE PRICE ( BASIC PRICE PLUS EXTRAS ) AS PUBLISHED BY THE COMMISSION ON 30 DECEMBER 1978 . . . ' AND THAT , CONSEQUENTLY , THE PRICES APPLICABLE AT THE TIME OF IMPORTATION WERE THOSE FIXED BY THE LATTER COMMUNICATION . IT FOLLOWS , ACCORDING TO CELESTRI , THAT IT IS NOT LIABLE TO ANTI-DUMPING DUTY SINCE THE CONTRACTUAL PRICE STIPULATED FOR THE IMPORTED PRODUCTS WAS HIGHER THAN THE BASIC PRICE PUBLISHED ON 30 DECEMBER 1978 .

8 THE COMMISSION ALSO POINTS OUT IN ITS OBSERVATIONS THAT , PURSUANT TO ARTICLE 1 OF RECOMMENDATION NO 3140/78/ECSC , THE BASIC PRICE APPLICABLE IN THIS CASE WAS THAT PUBLISHED ON 30 DECEMBER 1978 IN THE COMMUNICATION FROM THE COMMISSION OF THE SAME DATE ( OFFICIAL JOURNAL 1978 , L 372 , P . 2 ).

9 AS A SECONDARY MATTER , CELESTRI AND THE COMMISSION CONSIDER THE VALIDITY OF THE PRICES FIXED BY THE COMMUNICATION FROM THE COMMISSION OF 29 DECEMBER 1981 WHICH WAS THE SUBJECT-MATTER OF THE QUESTION SUBMITTED FOR A PRELIMINARY RULING ; CELESTRI CONSIDERS THOSE PRICES TO BE INVALID WHILST THE COMMISSION MAINTAINS THAT THEY ARE VALID .

10 THE ITALIAN GOVERNMENT MAINTAINS IN THE FIRST PLACE THAT THE COURT CANNOT CONSIDER , IN PROCEEDINGS UNDER ARTICLE 41 OF THE ECSC TREATY , THE RELEVANCE OF THE QUESTIONS SUBMITTED BY THE NATIONAL COURT FOR THE SOLUTION OF THE MAIN DISPUTE . IN THIS CASE , THEREFORE , THE COURT SHOULD EXAMINE ONLY THE VALIDITY OF THE CONTESTED COMMUNICATION OF 29 DECEMBER 1981 , WHICH IS THE SUBJECT-MATTER OF THE QUESTION SUBMITTED ; THE ITALIAN GOVERNMENT MAINTAINS THAT THE CONTENTIONS CHALLENGING THE VALIDITY OF THE COMMUNICATION IN QUESTION ARE DEVOID OF ANY FOUNDATION AND EVEN OF ANY SUBSTANTIVE BASIS .

11 SECONDLY , THE ITALIAN GOVERNMENT CONTENDS , AS REGARDS ARTICLE 1 OF RECOMMENDATION NO 3140/78/ECSC , THAT THE ARGUMENTS PUT FORWARD BY THE COMMISSION AND CELESTRI BASED ON THE WORDING OF THE PROVISION IN QUESTION TAKE NO ACCOUNT OF THE PURPOSE OF THE SYSTEM OF ANTI-DUMPING DUTIES OR OF THE WAY IN WHICH IT OPERATES . IN THE ITALIAN GOVERNMENT ' S VIEW , A FUNDAMENTAL PRINCIPLE OF THAT SYSTEM IS THAT THE EXPORT PRICE MUST ALWAYS BE COMPARED WITH THE PRICE MOST RECENTLY IN FORCE IN THE COMMUNITY . TO ACCEPT THE CONTRARY WOULD BE TO CONFER AN ADVANTAGE ON PRODUCTS FROM THE ONLY NON-MEMBER COUNTRY WHICH HAS NOT CONCLUDED AN AGREEMENT WITH THE COMMUNITY ON THE EXPORT PRICES OF ITS PRODUCTS , THE GERMAN DEMOCRATIC REPUBLIC , AND WOULD LEAD TO DISCRIMINATION AGAINST OTHER NON-MEMBER COUNTRIES WHICH HAVE CONCLUDED SUCH AGREEMENTS . FOR THOSE REASONS , THE ITALIAN GOVERNMENT CONTENDS THAT THE PURPOSE OF ARTICLE 1 OF RECOMMENDATION NO 3140/78 WAS TO BRING TOGETHER ALL THE ANTI-DUMPING DUTIES IN FORCE AND TO UNIFY THE SYSTEM FOR CALCULATING SUCH DUTIES BY REFERENCE TO THE MOST RECENT BASIC PRICE , AS IT HAD BEEN ESTABLISHED AT THE TIME , NAMELY ON 30 DECEMBER 1978 , BUT NOT TO STATE THAT SUCCESSIVE SUBSEQUENT AMENDMENTS OF BASIC PRICES WERE NOT TO BE TAKEN INTO ACCOUNT .

12 IT MUST BE POINTED OUT IN THE FIRST PLACE THAT ALTHOUGH ARTICLE 41 OF THE EEC TREATY , WHICH IS BASED ON A CLEAR SEPARATION OF FUNCTIONS BETWEEN THE NATIONAL COURTS AND THE COURT OF JUSTICE , DOES NOT PERMIT THE COURT EITHER TO ASSESS THE FACTS OF THE CASE OR TO REVIEW THE GROUNDS ON WHICH THE QUESTION SUBMITTED FOR A PRELIMINARY RULING IS BASED , IT IS NONE THE LESS FOR THE COURT TO SET THE MEASURE WHOSE VALIDITY IS CONTESTED IN CONTEXT IN COMMUNITY LAW AND TO EXAMINE THE CRITERIA FOR INTERPRETATION ESTABLISHED BY COMMUNITY LAW IN ORDER TO BE ABLE TO GIVE THE NATIONAL COURT AN APPROPRIATE ANSWER FOR THE PURPOSE OF RESOLVING THE MAIN DISPUTE .

13 IT MUST BE STATED THAT , AS CELESTRI AND THE COMMISSION HAVE RIGHTLY OBSERVED , ARTICLE 1 ( 2 ) OF RECOMMENDATION NO 1006/78/ECSC HAS BEEN REPLACED BY ARTICLE 1 OF RECOMMENDATION NO 3140/78/ECSC WHICH PROVIDED THAT THE BASIC PRICE TO BE TAKEN INTO CONSIDERATION FOR THE CALCULATION OF ANTI-DUMPING DUTIES WAS THENCEFORTH TO BE THE PRICE PUBLISHED BY THE COMMISSION ON 30 DECEMBER 1978 . THAT INTERPRETATION IS CONFIRMED BY THE FACT THAT A SUBSEQUENT RECOMMENDATION , NO 874/83/ECSC OF 12 APRIL 1983 ( OFFICIAL JOURNAL 1983 , L 96 , P . 10 ), RESTORED THE VALIDITY OF THE ORIGINAL VERSION OF ARTICLE 1 ( 2 ) OF RECOMMENDATION NO 1006/78/ECSC WHEN THE COMMUNITY LEGISLATURE CONSIDERED IT EXPEDIENT TO DO SO .

14 THERE IS NO AUTHORITY EITHER IN THE WORDING OF ARTICLE 1 OF RECOMMENDATION NO 3140/78/ECSC OR ELSEWHERE FOR THE INTERPRETATION PROPOSED BY THE ITALIAN GOVERNMENT TO THE EFFECT THAT THAT ARTICLE SHOULD BE UNDERSTOOD AS NOT RULING OUT THE POSSIBILITY OF TAKING INTO ACCOUNT SUBSEQUENT AMENDMENTS OF BASIC PRICES . THAT INTERPRETATION CANNOT , THEREFORE , BE UPHELD .

15 IN THE LIGHT OF THE FOREGOING CONSIDERATIONS , THE TRIBUNALE ' S QUESTION MUST BE UNDERSTOOD AS CALLING IN QUESTION THE VALIDITY OF THE COMMUNICATION OF 29 DECEMBER 1981 ONLY ON THE ASSUMPTION THAT IT WAS APPLICABLE AT THE TIME OF THE EVENTS IN QUESTION .

16 THE ANSWER TO THE TRIBUNALE ' S QUESTION MUST THEREFORE BE THAT IT IS UNNECESSARY FOR THE COURT TO GIVE A RULING ON THE VALIDITY OF THE COMMUNICATION FROM THE COMMISSION OF 29 DECEMBER 1981 AMENDING THE BASIC PRICES FOR CERTAIN IRON AND STEEL PRODUCTS ( OFFICIAL JOURNAL 1981 , L 372 , P . 1 ) SINCE IT WAS NOT APPLICABLE TO THE PRODUCTS IMPORTED IN JANUARY 1982 , THE RELEVANT COMMUNICATION FROM THE COMMISSION BEING THAT OF 30 DECEMBER 1978 ( OFFICIAL JOURNAL 1978 , L 372 , P . 2 ).

COSTS

17 THE COSTS INCURRED BY THE GOVERNMENT OF THE ITALIAN REPUBLIC AND BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN PROCEEDINGS ARE CONCERNED , IN THE NATURE OF 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 TRIBUNALE DI MILANO BY ORDER OF 15 MARCH 1984 , HEREBY RULES :

IT IS UNNECESSARY FOR THE COURT TO GIVE A RULING ON THE VALIDITY OF THE COMMUNICATION FROM THE COMMISSION OF 29 DECEMBER 1981 AMENDING THE BASIC PRICES FOR CERTAIN IRON AND STEEL PRODUCTS ( OFFICIAL JOURNAL 1981 , L 372 , P . 1 ) SINCE IT WAS NOT APPLICABLE TO THE PRODUCTS IMPORTED IN JANUARY 1982 . PURSUANT TO ARTICLE 1 ( 2 ) OF COMMISSION RECOMMENDATION NO 3140/78/ECSC OF 29 DECEMBER 1978 ( OFFICIAL JOURNAL 1978 , L 372 , P . 1 ), THE RELEVANT COMMUNICATION FROM THE COMMISSION WAS THAT OF 30 DECEMBER 1978 ( OFFICIAL JOURNAL 1978 , L 372 , P . 2 ).