Keywords
Summary

Keywords

1. Actions for annulment of measures Judgment annulling a measure Scope Annulment of an anti-dumping regulation in so far as it imposes an anti-dumping duty on the products of certain companies Effect of the annulment on the validity of an anti-dumping duty applicable to the products of another company No effect

(Art. 230 EC; Council Regulation No 2849/92, Art. 1)

2. Plea of illegality Incidental nature Challenge before a national court as to the legality of an anti-dumping regulation brought by a trader who was entitled to bring an action to have the regulation annulled but did not exercise his right to do so Not possible to plead invalidity of the anti-dumping regulation as an incidental issue

(Arts 230 EC and 241 EC)

Summary

1. The annulment of Article 1 of Regulation No 2849/92 modifying the definitive anti-dumping duty on imports of ball bearings with a greatest external diameter exceeding 30 mm originating in Japan imposed by Regulation No 1739/85 by the Court of First Instance in its judgment in Joined Cases T-163/94 and T-165/94 NTN Corporation and Koyo Seiko v Council, upheld by the Court of Justice in its judgment in Case C-245/95 P Commission v NTN and Koyo Seiko, in so far as that article imposed anti-dumping duties on the companies NTN and Koyo Seiko, did not affect the validity of the other aspects of that regulation, in particular the anti-dumping duty applicable to ball bearings manufactured by Nachi Fujikoshi Corporation, as those aspects did not form part of the subject of the dispute on which the Community judicature was called to rule.

Neither the judgment of the Court of First Instance nor that of the Court of Justice therefore affected the validity of Article 1(2) of Regulation No 2849/92 in so far as it fixes an anti-dumping duty applicable to ball bearings manufactured by Nachi Fujikoshi Corporation.

( see para. 27 and operative part )

2. Article 241 EC expresses a general principle of law under which an applicant must, in proceedings brought under national law against the rejection of his application, be able to plead the illegality of a Community measure on which the national decision adopted in his regard is based, and the question of the validity of that Community measure may thus be referred to the Court in proceedings for a preliminary ruling.

This general principle confers on any party to proceedings the right to challenge, for the purpose of obtaining the annulment of a decision of direct and individual concern to that party, the validity of previous acts of the institutions which form the legal basis of the decision under challenge, if that party was not entitled under Article 230 EC to bring a direct action challenging those acts by which it was thus affected without having been in a position to ask that they be declared void.

However, this general principle, which has the effect of ensuring that every person has or will have had the opportunity to challenge a Community measure which forms the basis of a decision adversely affecting him, does not in any way preclude a regulation from becoming definitive as against an individual in regard to whom it must be considered to be an individual decision and who could undoubtedly have sought its annulment under Article 230 EC, a fact which prevents that individual from pleading the illegality of that regulation before the national court. Such a conclusion applies to regulations imposing anti-dumping duties by virtue of their dual nature as acts of a legislative nature and acts liable to be of direct and individual concern to certain traders.

An importer of a product subject to an anti-dumping duty who undoubtedly had a right of action before the Court of First Instance to seek the annulment of that anti-dumping duty but who did not exercise that right cannot subsequently plead the invalidity of that anti-dumping duty before a national court. In such a case, the national court is bound by the definitive nature of the anti-dumping duty.

( see paras 35 to 37, 39 and operative part )