Avis juridique important
Order of the President of the Court of 17 December 1986. - Technointorg v Commission of the European Communities. - Dumping - Provisional duty. - Case 294/86 R.
European Court reports 1986 Page 03979
Parties
Subject of the case
Grounds
Operative part
APPLICATION FOR INTERIM MEASURES - SUSPENSION OF THE OPERATION OF A MEASURE - INTERIM MEASURES - CONDITIONS FOR GRANTING - SERIOUS AND IRREPARABLE DAMAGE - DISCRETION OF THE JUDGE - LIMITS
( EEC TREATY , ARTS 185 AND 186 ; RULES OF PROCEDURE , ART . 83 ( 2 ))
Parties
IN CASE 294/86 R
TECHNOINTORG , AN INDEPENDENT FOREIGN TRADE ASSOCIATION IN THE USSR , ESTABLISHED IN MOSCOW , REPRESENTED BY E . MARISSENS , OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF L . DUPONG , 14 A RUE DES BAINS ,
APPLICANT ,
V
COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS AGENT , J . TEMPLE LANG , A MEMBER OF ITS LEGAL DEPARTMENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF G . KREMLIS , JEAN MONNET BUILDING , KIRCHBERG ,
DEFENDANT ,
Subject of the case
APPLICATION PRIMARILY FOR AN ORDER SUSPENDING , AS REGARDS THE APPLICANT , THE APPLICATION OF ARTICLE 1 OF COMMISSION REGULATION NO 2800/86 OF 9 SEPTEMBER 1986 IMPOSING A PROVISIONAL ANTI-DUMPING DUTY ON IMPORTS OF CERTAIN DEEP-FREEZERS ORIGINATING IN THE USSR ( OFFICIAL JOURNAL 1986 , L 259 , P . 14 ), ON CONDITION THAT THE APPLICANT CONTINUES TO PROVIDE SECURITY FOR THE PERFORMANCE OF ITS OBLIGATION IN THE AMOUNT WHICH IT IS REQUIRED TO PAY IN PURSUANCE OF ARTICLE 1 ,
Grounds
1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 26 NOVEMBER 1986 , TECHNOINTORG BROUGHT AN ACTION UNDER THE SECOND PARAGRAPH OF ARTICLE 173 OF THE EEC TREATY FOR A DECLARATION THAT COMMISSION REGULATION NO 2800/86 OF 9 SEPTEMBER 1986 IMPOSING A PROVISIONAL ANTI-DUMPING DUTY ON IMPORTS OF CERTAIN DEEP-FREEZERS ORIGINATING IN THE USSR , AND IN PARTICULAR ARTICLE 1 THEREOF , IS VOID , IN SO FAR AS IT APPLIES TO THE APPLICANT .
2 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON THE SAME DAY , THE APPLICANT REQUESTED THE COURT , UNDER ARTICLE 186 OF THE EEC TREATY , ARTICLE 36 OF THE STATUTE OF THE COURT OF JUSTICE OF THE EEC AND ARTICLE 83 OF THE RULES OF PROCEDURE , TO MAKE AN INTERIM ORDER SUSPENDING , AS REGARDS THE APPLICANT , THE APPLICATION OF ARTICLE 1 OF COMMISSION REGULATION NO 2800/86 UNTIL THE COURT HAS GIVEN JUDGMENT IN THE MAIN PROCEEDINGS , ON CONDITION THAT THE APPLICANT CONTINUES TO PROVIDE SECURITY FOR THE PERFORMANCE OF ITS OBLIGATION IN THE AMOUNT WHICH IT IS REQUIRED TO PAY IN PURSUANCE OF ARTICLE 1 . IN ADDITION , THE APPLICANT REQUESTS THE COURT TO ORDER THAT THE COMPETENT CUSTOMS AUTHORITIES OF THE MEMBER STATES SHOULD BE INFORMED OF THE INTERLOCUTORY DECISION PRESCRIBING THE INTERIM MEASURE REQUESTED .
3 BY TELEX MESSAGE DATED 27 NOVEMBER 1986 , THE COURT PUT A QUESTION TO THE APPLICANT AND REQUESTED IT TO SUBMIT ITS REPLY BEFORE WEDNESDAY , 3 DECEMBER 1986 .
4 THE DEFENDANT SUBMITTED ITS WRITTEN OBSERVATIONS ON 8 DECEMBER 1986 . THE PARTIES PRESENTED ORAL ARGUMENT ON 12 DECEMBER 1986 .
5 BEFORE EXAMINING WHETHER OR NOT THIS APPLICATION FOR INTERIM MEASURES IS WELL FOUNDED , IT WOULD APPEAR TO BE USEFUL TO RECALL BRIEFLY THE VARIOUS STAGES OF THE ANTI-DUMPING PROCEEDING WHICH PRECEDED THE ADOPTION BY THE COMMISSION OF REGULATION NO 2800/86 .
6 IN SEPTEMBER 1985 THE EUROPEAN COMMITTEE OF MANUFACTURERS OF ELECTRICAL DOMESTIC EQUIPMENT , ON BEHALF OF MANUFACTURERS ACCOUNTING FOR PRACTICALLY ALL COMMUNITY PRODUCTION OF FREEZERS , LODGED A COMPLAINT WITH THE COMMISSION IN ACCORDANCE WITH ARTICLE 5 OF COUNCIL REGULATION ( EEC ) NO 2176/84 OF 23 JULY 1984 ON PROTECTION AGAINST DUMPED OR SUBSIDIZED IMPORTS FROM COUNTRIES NOT MEMBERS OF THE EUROPEAN ECONOMIC COMMUNITY ( OFFICIAL JOURNAL 1984 , L 201 , P . 1 ), ALLEGING THAT IMPORTS OF CERTAIN FREEZERS ORIGINATING IN CERTAIN EASTERN EUROPEAN COUNTRIES , INCLUDING THE USSR , WERE BEING DUMPED AND WERE THEREFORE CAUSING INJURY TO THE COMMUNITY INDUSTRY . THE PRODUCTS CONCERNED BY THAT COMPLAINT ARE DOMESTIC ELECTRICAL DEEP-FREEZERS USED TO FREEZE AND STORE FRESH FOOD PRODUCTS , FALLING UNDER SUBHEADING EX 84.15 C II OF THE COMMON CUSTOMS TARIFF AND CORRESPONDING TO NIMEXE CODES 84.15-32 , 84.15-41 AND 84.15-46 .
7 CONSIDERING THAT THAT COMPLAINT CONTAINED SUFFICIENT EVIDENCE OF DUMPING AND OF RESULTANT INJURY , THE COMMISSION , IN A NOTICE OF 11 DECEMBER 1985 ( OFFICIAL JOURNAL 1985 , C 319 , P . 3 ), ANNOUNCED THE INITIATION OF AN ANTI-DUMPING PROCEEDING , PURSUANT TO ARTICLE 7 OF THE AFORESAID COUNCIL REGULATION NO 2176/84 , AND COMMENCED THE NECESSARY INVESTIGATION . IN THE COURSE OF THAT INVESTIGATION IT BECAME CLEAR THAT FOR THE PURPOSES THEREOF IT WAS NECESSARY TO DISTINGUISH BETWEEN THE TWO TYPES OF DEEP-FREEZER ALLEGED TO HAVE BEEN DUMPED , NAMELY CHEST FREEZERS ( NIMEXE CODE 84.15-32 ) AND UPRIGHT FREEZERS ( NIMEXE CODES 84.15-41 AND 84.15-46 ), ON THE GROUND THAT THOSE PRODUCTS DID NOT CONSTITUTE ' LIKE PRODUCTS ' WITHIN THE MEANING OF THE ANTI-DUMPING RULES .
8 WITH REGARD TO CHEST FREEZERS , THE COMMISSION REACHED THE CONCLUSION AT THE END OF ITS PRELIMINARY INVESTIGATION THAT IMPORTS OF THOSE PRODUCTS COULD NOT HAVE CAUSED MATERIAL INJURY TO THE COMMUNITY INDUSTRY . IT THEREFORE DECIDED IN ARTICLE 4 OF REGULATION NO 2800/86 TO TERMINATE THE ANTI-DUMPING PROCEEDING WITH REGARD TO THAT TYPE OF FREEZER .
9 WITH REGARD TO UPRIGHT FREEZERS , ON THE OTHER HAND , AND IN PARTICULAR THOSE ORIGINATING IN THE USSR , THE COMMISSION ' S PRELIMINARY INVESTIGATION REVEALED THE EXISTENCE OF DUMPING AND VARIOUS SIGNS OF MATERIAL INJURY SUCH AS , IN PARTICULAR , A SUBSTANTIAL INCREASE IN THE VOLUME OF IMPORTS OF THOSE PRODUCTS INTO THE COMMON MARKET AND A CORRESPONDING INCREASE IN THEIR SHARE OF THE COMMUNITY MARKET , AND ALSO THE EXISTENCE OF SUBSTANTIAL PRICE UNDERCUTTING IN THOSE PRODUCTS . ON THE BASIS OF THOSE FINDINGS , THE COMMISSION CONSIDERED THAT THE INTERESTS OF THE COMMUNITY REQUIRED THE IMPOSITION OF A PROVISIONAL ANTI-DUMPING DUTY ON IMPORTS OF THOSE PRODUCTS IN ORDER TO PREVENT FURTHER INJURY FROM BEING CAUSED TO THE COMMUNITY INDUSTRY DURING THE ANTI-DUMPING PROCEEDING . BY ARTICLE 1 OF REGULATION NO 2800/86 IT THEREFORE IMPOSED ON IMPORTS OF UPRIGHT FREEZERS ( NIMEXE CODES 85.15-41 AND 85.15-46 ) ORIGINATING IN THE SOVIET UNION A PROVISIONAL ANTI-DUMPING DUTY EQUAL TO 33% OF THE NET FREE-AT-COMMUNITY-FRONTIER PRICE , NOT CLEARED THROUGH CUSTOMS , FOR A PERIOD OF FOUR MONTHS COMMENCING ON 11 SEPTEMBER 1986 . ARTICLE 1 ( 4 ) PROVIDES THAT THE RELEASE FOR FREE CIRCULATION IN THE COMMUNITY OF THAT TYPE OF FREEZER IS TO BE SUBJECT TO THE PROVISION OF A SECURITY , EQUIVALENT TO THE AMOUNT OF THE PROVISIONAL DUTY .
10 ACCORDING TO ARTICLE 185 OF THE EEC TREATY , ACTIONS BROUGHT BEFORE THE COURT OF JUSTICE SHALL NOT HAVE SUSPENSORY EFFECT . THE COURT OF JUSTICE MAY , HOWEVER , IF IT CONSIDERS THAT THE CIRCUMSTANCES SO REQUIRE , ORDER THAT APPLICATION OF THE CONTESTED ACT BE SUSPENDED . IT MAY ALSO , PURSUANT TO ARTICLE 186 OF THE EEC TREATY , PRESCRIBE ANY NECESSARY INTERIM MEASURE .
11 AS A CONDITION FOR THE GRANT OF A MEASURE SUCH AS THAT REQUESTED , ARTICLE 83 ( 2 ) OF THE RULES OF PROCEDURE PROVIDES THAT AN APPLICATION FOR INTERIM MEASURES MUST STATE THE FACTUAL AND LEGAL GROUNDS ESTABLISHING A PRIMA FACIE CASE FOR THE INTERIM MEASURES APPLIED FOR AND THE CIRCUMSTANCES GIVING RISE TO URGENCY .
12 THE COURT HAS CONSISTENTLY HELD THAT PROVISIONAL MEASURES MAY BE GRANTED ONLY IF THEY DO NOT PREJUDGE THE DECISION ON THE SUBSTANCE OF THE CASE ( SEE IN PARTICULAR THE ORDER OF THE PRESIDENT OF THE COURT OF 7 JULY 1981 IN JOINED CASES 60 AND 190/81 R IBM V COMMISSION ( 1981 ) ECR 1857 , AT P . 1862 ) AND THE URGENCY REQUIRED BY ARTICLE 83 ( 2 ) OF THE RULES OF PROCEDURE IN REGARD TO AN APPLICATION FOR INTERIM MEASURES MUST BE ASSESSED ON THE BASIS OF WHETHER IT IS NECESSARY TO ADOPT SUCH MEASURES IN ORDER TO AVOID SERIOUS AND IRREPARABLE DAMAGE TO THE PARTY SEEKING THOSE MEASURES .
13 IN THAT REGARD THE APPLICANT CLAIMS THAT IT WOULD SUFFER SERIOUS DAMAGE OWING TO THE FACT THAT THE IMPOSITION OF A PROVISIONAL ANTI-DUMPING DUTY OF 33% WOULD LEAD TO A CONSIDERABLE INCREASE IN THE PRICE OF ITS PRODUCTS , WHICH WOULD RENDER THOSE PRODUCTS SO UNCOMPETITIVE THAT THEY WOULD NOT BE MARKETABLE . SUCH A PRICE INCREASE WOULD ALSO REDUCE ITS SHARE OF THE MARKET , OR EVEN RESULT IN THE COMPLETE DISAPPEARANCE OF ITS PRODUCTS . THE APPLICANT CLAIMS THAT THE CORRESPONDENCE WITH IMPORTERS OF ITS PRODUCTS IN THE EEC , BOTH INDEPENDENT AND ASSOCIATED , WHICH IS ANNEXED TO ITS APPLICATION MAKES IT CLEAR THAT SALES OF ITS PRODUCTS HAVE ACTUALLY CEASED SINCE THE DATE ON WHICH ARTICLE 1 OF COMMISSION REGULATION NO 2800/86 ENTERED INTO FORCE . THE DAMAGE SUFFERED BY IT AS A RESULT OF THAT SITUATION WOULD BE NOT ONLY SERIOUS BUT ALSO IRREPARABLE SINCE , EVEN IF THE COURT FOUND IN ITS FAVOUR IN THE MAIN PROCEEDINGS , THE DAMAGE WOULD ALREADY HAVE BEEN CAUSED . UPRIGHT FREEZERS ORIGINATING IN THE USSR WOULD HAVE BEEN EXCLUDED FROM THE MARKET FOR AT LEAST A YEAR , AND THERE IS NO GUARANTEE THAT THEY WOULD EVER BE ABLE TO REGAIN A POSITION ON THE MARKET .
14 IN REPLY TO A QUESTION ASKED ON 27 NOVEMBER 1986 REQUESTING IT TO CLARIFY THE PURPOSE OF ITS APPLICATION FOR INTERIM MEASURES , THE APPLICANT MADE A NUMBER OF NEW POINTS REGARDING THE QUESTION OF URGENCY . IN ITS VIEW , IF ITS APPLICATION FOR INTERIM MEASURES IS NOT GRANTED , ARTICLES 11 ( 1 ) AND ( 7 ) AND 12 OF COUNCIL REGU LATION NO 2176/84 WILL APPLY TO THE SECURITY , EQUIVALENT TO THE AMOUNT OF THE PROVISIONAL DUTY , PROVIDED PURSUANT TO ARTICLE 1 ( 4 ) OF REGULATION NO 2800/86 . CONSEQUENTLY , WHEN THE PERIOD OF VALIDITY OF THE PROVISIONAL DUTY HAS ENDED , THE COUNCIL WILL DECIDE , ON A PROPOSAL FROM THE COMMISSION , WHAT PROPORTION OF THE PROVISIONAL DUTY IS TO BE DEFINITIVELY COLLECTED , IRRESPECTIVE OF WHETHER A DEFINITIVE ANTI-DUMPING DUTY IS TO BE IMPOSED . THE APPLICANT STRESSES THAT , IF THE COUNCIL DID DECIDE TO COLLECT THE PROVISIONAL DUTY , THE AMOUNT WHICH IT OR IMPORTERS OF ITS PRODUCTS WOULD HAVE TO PAY WOULD NO LONGER BE THE COST OF PROVIDING A GUARANTEE EQUIVALENT TO THE AMOUNT OF THE PROVISIONAL DUTY BUT THE MUCH HIGHER COST OF ACTUALLY PAYING THE PROVISIONAL DUTY . BECAUSE OF THE RISK THAT AS FROM JANUARY 1987 DUTY WILL ACTUALLY HAVE TO BE PAID ON GOODS IMPORTED SUBJECT TO PROVISION OF A GUARANTEE DURING THE PERIOD OF VALIDITY OF THE PROVISIONAL DUTY , IMPORTERS OF THE APPLICANT ' S PRODUCTS ARE NO LONGER PLACING ANY ORDERS WITH IT , SO THAT SERIOUS AND IRREPARABLE DAMAGE IS BEING CAUSED TO THE APPLICANT .
15 THE APPLICANT ALSO STATED IN ITS REPLY THAT THE GRANT OF THE INTERIM MEASURE REQUESTED WOULD HAVE ANOTHER ADVANTAGE : THE COSTS CONNECTED WITH THE GUARANTEE WHICH IT HAS HAD TO PROVIDE COULD BE REGARDED AS PART OF ITS LEGAL COSTS AND COULD BE REIMBURSED IF ITS MAIN APPLICATION WERE UPHELD , WITHOUT IT BEING NECESSARY FOR IT TO BRING AN ACTION FOR DAMAGES .
16 FOR ITS PART THE DEFENDANT CONSIDERS THAT IN PRINCIPLE - IN THE ABSENCE OF SPECIAL CIRCUMSTANCES , WHICH HAVE NOT BEEN ESTABLISHED BY THE APPLICANT IN THIS CASE - IT IS NOT APPROPRIATE TO SUSPEND THE OPERATION OF A REGULATION WHICH IMPOSES A PROVISIONAL ANTI-DUMPING DUTY . THERE ARE TWO MAIN REASONS FOR THIS . FIRST , THE ONLY OBLIGATION RESULTING FROM THE INTRODUCTION OF A PROVISIONAL ANTI-DUMPING DUTY IS TO PROVIDE A BANK GUARANTEE EQUIVALENT TO THE AMOUNT OF THAT DUTY . REFERRING TO THE ORDER IN CASE 120/83 R RAZNOIMPORT V COMMISSION ( 1983 ) ECR 2573 , THE DEFENDANT CONTENDS THAT THE COST OF PROVIDING A GUARANTEE FOR A LIMITED PERIOD OF FOUR MONTHS IS MINIMAL AND IS NOT IN ANY EVENT CAPABLE OF CAUSING SERIOUS AND IRREPARABLE DAMAGE TO THE APPLICANT OR TO IMPORTERS OF ITS PRODUCTS . SECONDLY , IT IS ALWAYS NECESSARY , IN CONNECTION WITH AN APPLICATION FOR THE SUSPENSION OF ANY ANTI-DUMPING DUTY , TO WEIGH UP ALL THE INTERESTS INVOLVED , NAMELY THOSE OF THE EXPORTERS AND THOSE OF THE COMMUNITY INDUSTRY IN BEING PROTECTED AGAINST DUMPING . IT IS NECESSARY FOR THE PROTECTION OF THE INTERESTS OF THE COMMUNITY INDUSTRY THAT THE ANTI-DUMPING DUTY CONCERNED SHOULD REMAIN IN FORCE .
17 THE DEFENDANT ALSO CONSIDERS THAT THE ARGUMENT OF THE APPLICANT WHICH IS SET OUT IN PARAGRAPH 14 OF THIS ORDER CANNOT BE ACCEPTED WITHOUT PREJUDGING , AND INDEED FRUSTRATING , THE DECISION TO BE TAKEN BY THE COUNCIL IN JANUARY 1987 ON THE DEFINITIVE COLLECTION OF THE PROVISIONAL DUTY . NOR CAN THE APPLICANT ' S CONCLUSION THAT SERIOUS AND IRREPARABLE DAMAGE WOULD OCCUR BE ACCEPTED , BECAUSE IMPORTERS CAN ALWAYS INCLUDE THE AMOUNT OF THE PROVISIONAL DUTY IN THE PRICES WHICH THEY CHARGE TO THEIR CUSTOMERS IF THEY WISH TO PROTECT THEMSELVES AGAINST THE RISK OF THE PROVISIONAL DUTY BEING DEFINITIVELY COLLECTED . THE DEFENDANT ADDS THAT , EVEN IF THE REQUESTED INTERIM MEASURE WERE GRANTED , THERE WOULD STILL BE A POSSIBILITY THAT THE IMPORTERS WOULD HAVE TO PAY THE PROVISIONAL DUTY IF THE MAIN APPLICATION WERE DISMISSED .
18 AS TO THE APPLICANT ' S ARGUMENT WHICH IS REFERRED TO IN PARAGRAPH 15 OF THIS ORDER , THE DEFENDANT CONTENDS PRIMARILY THAT , EVEN IF THE INTERIM MEASURE WERE GRANTED , THE COST OF PROVIDING THE AFORESAID BANK GUARANTEE COULD NEVER BE REGARDED AS PART OF THE APPLICANT ' S LEGAL COSTS , AND THE COURT ' S POWERS TO ORDER INTERIM MEASURES ARE NOT INTENDED TO BE USED AS A MEANS OF AWARDING DAMAGES WITHOUT THE REQUIREMENTS OF ARTICLE 215 OF THE EEC TREATY HAVING TO BE FULFILLED .
19 IT SHOULD FURTHER BE NOTED THAT IN THE WRITTEN OBSERVATIONS SUBMITTED IN THE COURSE OF THESE INTERLOCUTORY PROCEEDINGS THE DEFENDANT HAS INFORMED THE COURT THAT IT INTENDS TO SUBMIT TO THE COUNCIL A PROPOSAL FOR A DEFINITIVE ANTI-DUMPING DUTY BEFORE THE END OF THE PERIOD OF VALIDITY OF THE PROVISIONAL ANTI-DUMPING DUTY ; THE APPLICANT HAS INFORMED THE DEFENDANT THAT IT WILL THEN BRING AN ACTION FOR A DECLARATION THAT THE REGULATION INTRODUCING SUCH DEFINITIVE DUTY IS VOID .
20 IT APPEARS THAT THE RELIEF WHICH THE APPLICANT IS SEEKING BY MEANS OF THESE INTERLOCUTORY PROCEEDINGS IS THAT IT SHOULD NOT BE OBLIGED TO PAY THE PROVISIONAL DUTY UNTIL THE COURT HAS GIVEN JUDGMENT ON THE MAIN APPLICATION , ON CONDITION THAT IT PROVIDES A BANK GUARANTEE EQUIVALENT TO THE AMOUNT OF THAT DUTY . THUS THE PURPOSE OF ITS APPLICATION IS TO OBTAIN THE BENEFIT OF THE GUARANTEE NOT ONLY DURING THE PERIOD OF VALIDITY OF THE PROVISIONAL ANTI-DUMPING DUTY , AS PROVIDED FOR IN ARTICLE 1 ( 4 ) OF REGULATION NO 2800/86 IN ACCORDANCE WITH ARTICLE 11 ( 1 ) OF THE BASIC REGULATION ON ANTI-DUMPING , REGULATION NO 2176/84 , BUT ALSO DURING THE SUBSEQUENT PERIOD BEFORE THE COURT GIVES ITS JUDGMENT ON THE MAIN APPLICATION , THAT IS TO SAY EVEN DURING THE PERIOD OF VALIDITY OF ANY DEFINITIVE ANTI-DUMPING DUTY WHICH MIGHT BE IMPOSED BY THE COUNCIL IN JANUARY 1987 .
21 SINCE THE REGULATION CONTESTED IN THE MAIN ACTION IS ITSELF A PROVISIONAL MEASURE FORMING PART OF THE PROCEDURE LAID DOWN BY COUNCIL REGULATION NO 2176/84 , SUCH AN APPLICATION FOR INTERIM MEASURES MUST BE EXAMINED IN THE LIGHT OF THE PROCEDURE LAID DOWN IN THAT REGULATION .
22 ARTICLES 11 AND 12 OF REGULATION NO 2176/84 PROVIDE THAT A PROVISIONAL ANTI-DUMPING DUTY IS TO BE IMPOSED IN TWO STAGES .
23 ARTICLE 11 ( 1 ) PROVIDES THAT , WHERE PRELIMINARY EXAMINATION SHOWS THAT DUMPING EXISTS AND THAT THERE IS SUFFICIENT EVIDENCE OF INJURY CAUSED THEREBY AND THE INTERESTS OF THE COMMUNITY CALL FOR INTERVENTION TO PREVENT INJURY BEING CAUSED DURING THE PROCEEDING , THE COMMISSION , ACTING AT THE REQUEST OF A MEMBER STATE OR ON ITS OWN INITIATIVE , SHALL IMPOSE A PROVISIONAL ANTI-DUMPING DUTY . IN SUCH CASES , RELEASE OF THE PRODUCTS CONCERNED FOR FREE CIRCULATION IN THE COMMUNITY IS TO BE CONDITIONAL UPON THE PROVISION OF SECURITY FOR THE AMOUNT OF THE PROVISIONAL DUTY . ACCORDING TO ARTICLE 11 ( 5 ), SUCH PROVISIONAL DUTIES ARE TO HAVE A MAXIMUM PERIOD OF VALIDITY OF FOUR MONTHS WHICH MAY BE EXTENDED ON CERTAIN CONDITIONS FOR A FURTHER PERIOD OF TWO MONTHS .
24 ARTICLE 12 ( 2 ) ( A ) PROVIDES THAT , WHERE A PROVISIONAL DUTY HAS BEEN APPLIED , THE COUNCIL SHALL DECIDE , IRRESPECTIVE OF WHETHER A DEFINITIVE ANTI-DUMPING DUTY IS TO BE IMPOSED , WHAT PROPORTION OF THE PROVISIONAL DUTY IS TO BE DEFINITIVELY COLLECTED ; ACCORDING TO ARTICLE 12 ( 2 ) ( B ), THE DEFINITIVE COLLECTION OF SUCH AMOUNT SHALL NOT BE DECIDED UPON UNLESS THE FACTS AS FINALLY ESTABLISHED SHOW THAT THERE HAS BEEN DUMPING AND INJURY OR THREAT OF MATERIAL INJURY WHICH WOULD , IN THE ABSENCE OF PROVISIONAL MEASURES , HAVE DEVELOPED INTO MATERIAL INJURY . IN THIS CASE THE COUNCIL WILL HAVE TO ADOPT A DECISION BEFORE 11 JANUARY 1987 OR , IF THE PERIOD OF VALIDITY IS EXTENDED , BEFORE 11 MARCH 1987 .
25 THE PROCEDURE LAID DOWN BY THE REGULATION THEREFORE IMPLIES THAT THE COUNCIL WILL SHORTLY HAVE TO DECIDE BOTH WHETHER A DEFINITIVE DUTY IS TO BE IMPOSED AND WHETHER THE PROVISIONAL DUTY IS TO BE DEFINITIVELY COLLECTED . IT MUST THEREFORE BE STATED THAT TO GRANT THE APPLICANT ' S REQUEST THAT THE PAYMENT OF THE PROVISIONAL DUTY SHOULD BE SUSPENDED UNTIL THE COURT HAS GIVEN JUDGMENT ON THE MAIN APPLICATION , ON CONDITION THAT IT PROVIDES A GUARANTEE EQUIVALENT TO THE AMOUNT OF THE DUTY , WOULD BE TANTAMOUNT TO DEPRIVING THE COUNCIL OF THE POWER CONFERRED UPON IT BY THE AFORESAID ARTICLE 12 TO DECIDE WHETHER THE PROVISIONAL DUTY SHOULD BE DEFINITIVELY COLLECTED AND TO DEPRIVING THAT DECISION OF ANY PRACTICAL EFFECT .
26 ALTHOUGH THE JUDGE HEARING AN APPLICATION FOR INTERIM MEASURES HAS A WIDE DISCRETION AND CONSIDERABLE AUTONOMY , HE IS NONE THE LESS BOUND TO TAKE INTO ACCOUNT THE SPECIAL FEATURES OF THE PROCEDURE AT ISSUE AND MAY NOT ENCROACH UPON THE POWERS TO BE EXERCISED BY THE COUNCIL UNDER THAT PROCEDURE OR DEPRIVE THEM OF ALL PRACTICAL EFFECT PRIOR TO THEIR EXERCISE .
27 IT SHOULD FURTHER BE ADDED THAT , IF THE COUNCIL SHOULD DECIDE IN JANUARY 1987 TO IMPOSE A DEFINITIVE DUTY AND TO ORDER THAT THE PROVISIONAL DUTY SHALL BE COLLECTED , THE APPLICANT WILL BE ABLE TO REQUEST INTERIM MEASURES IN THE COURSE OF THAT PROCEDURE AND IN PARTICULAR THE MEASURE WHICH IT HAS REQUESTED IN THIS CASE .
28 IT THEREFORE APPEARS THAT THE DAMAGE AT PRESENT SUFFERED BY THE APPLICANT IS LIMITED TO THE COST OF PROVIDING A GUARANTEE FOR A PERIOD OF FOUR MONTHS . IN THAT REGARD IT SHOULD BE RECALLED THAT , AS WAS HELD IN CASE 120/83 R RAZNOIMPORT V COMMISSION , CITED ABOVE , EVEN IF THE APPLICANT , THE SOLE SOVIET EXPORTER OF THE PRODUCT CONCERNED , WERE TO UNDERTAKE PROVISIONALLY TO BEAR THE COSTS OF THAT SECURITY IN ORDER TO BE ABLE TO MARKET ITS PRODUCTS , THAT DISADVANTAGE CANNOT CONSTITUTE SERIOUS AND IRREPARABLE DAMAGE TO IT . PAYMENT OF SUCH A SMALL AMOUNT CANNOT BE REGARDED AS SERIOUS DAMAGE AND IN ANY EVENT IT SHOULD BE RECALLED THAT THE APPLICANT HAS OFFERED TO SUPPLY A BANK GUARANTEE BY WAY OF SECURITY PENDING FINAL JUDGMENT IN THE MAIN ACTION IF THE SUSPENSION WERE GRANTED . NOR CAN IT BE REGARDED AS IRREPARABLE BECAUSE ANY DAMAGE WHICH MIGHT OCCUR COULD BE MADE GOOD BY MEANS OF AN ACTION FOR DAMAGES BROUGHT BY THE APPLICANT .
29 IT FOLLOWS FROM THE FOREGOING THAT THE APPLICANT HAS NOT PUT FORWARD ANY CONCLUSIVE ARGUMENT DEMONSTRATING THAT IT WOULD SUFFER SERIOUS AND IRREPARABLE DAMAGE IF THE INTERIM MEASURE WHICH IT REQUESTS WERE REFUSED .
Operative part
ON THOSE GROUNDS ,
THE PRESIDENT ,
BY WAY OF INTERIM DECISION ,
HEREBY ORDERS AS FOLLOWS :
( 1 ) THE APPLICATION IS DISMISSED ;
( 2 ) COSTS ARE RESERVED .
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