Keywords
Summary

Keywords

1 Actions for annulment - Natural or legal persons - Measures of direct and individual concern to them - Regulation imposing anti-dumping duties - Producers and exporters identified in the measures adopted by the Commission and the Council or affected by the preliminary investigations - Undertakings, related to the exporter, whose selling price for the product concerned served as the basis for calculating the export price - Whether admissible

(EC Treaty, Art. 173, fourth para.)

2 Community law - Principles - Rights of the defence - Observance of that right in administrative procedures - Anti-dumping - Duty of the institutions to keep the undertakings concerned informed - Scope - Methods of conveying information - Information which must be communicated - Rate of the definitive anti-dumping duty - Covered - Undertakings concerned allowed a fixed period within which to lodge representations - Article 20(5) of Regulation No 384/96 fixing a minimum period of 10 days - Direct effect

(Council Regulation No 384/96, Art. 20(2), (4) and (5))

3 Procedure - Costs - Compensation - Exceptional circumstances - Commission's manner of conduct during an anti-dumping proceeding

(Rules of Procedure of the Court of First Instance, Art. 87(3), first para., and Art. 4, first and third paras)

Summary

1 Although it is true that in the light of the criteria set out in the fourth paragraph of Article 173 of the Treaty, regulations imposing anti-dumping duties are, as regards their nature and their scope, of a legislative character, in that they apply to all the economic operators concerned taken as a whole, their provisions may none the less be of direct and individual concern to certain economic operators.

Measures imposing anti-dumping duties are liable to be of individual concern to those producers and exporters who are able to establish that they were identified in the measures adopted by the Commission and the Council or were affected by the preliminary investigations.

Moreover, those measures are of individual concern to an undertaking located in a non-member country and related to the exporters, whose selling price in the Community for the goods at issue served as the basis for calculating the export price.

2 Respect for the rights of the defence is a fundamental principle of Community law, observance of which is ensured by the Community judicature. Pursuant to that principle, the undertakings affected by an investigation preceding the adoption of an anti-dumping regulation must be placed in a position during the administrative procedure in which they can effectively make known their views on the correctness and relevance of the facts and circumstances alleged and on the evidence presented by the Commission in support of its allegation concerning the existence of dumping and the resultant injury.

The rights of defence of the undertakings concerned were not infringed by the fact that the final disclosure document sent to them by the Commission, pursuant to Article 20(2) of the basic anti-dumping regulation (Regulation No 384/96), did not mention either the fact that the rate of the anti-dumping duty applicable to their products would be increased as a result of granting individual treatment to one of their number, or the precise rate of the definitive duty, since it has been established that they acquired that information during a telephone conversation with a Commission official at a time when they could still have effectively made known their views on those points before the Commission's adoption of its proposal for the adoption of the definitive regulation.

Admittedly, Article 20(4) of the basic anti-dumping regulation provides that final disclosure must be given in writing and Article 20(3) provides that requests for disclosure must be addressed to the Commission in writing, but, given that the undertakings failed to satisfy the latter requirement, they cannot take issue with the Community institutions for not having sent written confirmation of the information apprised by the undertakings in a telephone conversation. Furthermore, since Article 20 of the basic anti-dumping regulation is intended to protect the rights of defence of interested parties during the administrative procedure, failure to comply with the requirements of Article 20(4) can result in the annulment of the regulation imposing anti-dumping duty only if it is established that that fact affected the defence of the undertakings concerned.

Moreover, Article 20(5) of the basic anti-dumping regulation, which sets a minimum period for the submission of any representations, is clear and precise and does not leave any discretion to the Community institutions. Accordingly, an undertaking which receives notification, in the course of the administrative procedure, of the essential facts and considerations within the meaning of Article 20(2) of that regulation can, in the absence of any indication by the Community institutions of the time-limit within which it must submit any representations, be regarded as having a minimum period of 10 days as a result of the direct effect of Article 20(5).

3 Even though the application has been dismissed, it is appropriate to apply the first subparagraph of Article 87(3), and the first and third subparagraphs of Article 87(4) of the Rules of Procedure and to order each of the parties to bear its own costs, since the dispute could have been avoided, had the Commission - which had been informed by the applicant that the disclosure document to be sent to the undertakings concerned by the investigation preceding the adoption of an anti-dumping regulation was incomplete - sent a complete version of that document forthwith and given them a period of time within which to submit any representations.