Allied Corporation and others v Commission of the European Communities (239/82, 275/82)

IV —Oral procedure

At the sitting on 8 November 1983 the applicants Allied, Michel Levy Morelle and Transcontinental, represented by Mr Lebrun and Mr D'Hondt, the applicant Kaiser, represented by Mr Hooper, the Commission of the European Communities, represented by Mr Gilsdorf and Mr Jacob, presented oral argument and answered questions put to them by the Court.The applicants contended that the judgment of the Court of 4 October 1983 in Case 191/82 (FEDIOL [1983] ECR 2913) established that their applications were admissible.Enlarging on their submission that the statement of reasons on which the contested measures were based is defective, the applicants maintained as regards the formal duty to state reasons, that the contested decisions did not contain any grounds relating to dumping and to an adverse effect on the interests of the Community and, as regards the validity of the reasons stated, that imports from the United States had plummeted during the period in question and had at present ceased altogether.The Commission has incorrectly applied in the present case the principle that the imposition of provisional anti-dumping duties follows automatically from the withdrawal of undertakings.The notice of review published on 16 July 1982 resulted in the adoption of Council Regulation (EEC) No 101/83 of 17 January 1983 imposing a definitive anti-dumping duty on certain chemical fertilizer originating in the United States of America (Official Journal 1983, L 15, p. 1), Commission Regulation (EEC) No 290/83 of 2 February 1983 imposing a provisional anti-dumping duty on imports of urea ammonium nitrate solution fertilizer originating in the United States of America (Official Journal 1983, L 33, p. 9) and Council Regulation (EEC) No 2192/83 of 29 July 1983 accepting an undertaking given in connection with the anti-dumping review proceeding on imports of urea ammonium nitrate solution fertilizer (UAN) originating in the United States of America and terminating the proceeding (Official Journal 1983, L 211, p. 1). At present, liquid fertilizer imported from the United States was covered by four different systems and that applied to the applicant undertakings was truly penal in nature.As a result of successive increases in the value of the American dollar, as reflected in the price and in the volume of imports from the United States, American prices were no longer competitive.The three companies which had given an undertaking and had not withdrawn it had in fact abandoned the European market.The Commission, whilst maintaining its objection of inadmissibility as regards the application originally submitted by Demufert, took the view that the arguments put foward in favour of and against the admissibility of the applications submitted by the other undertakings were nicely balanced. In any event, review of the substance of the case by the Court should be particularly limited in scope since the anti-dumping measures at issue were provisional.As regards the action taken in the light of the notice of review published on 16 July 1982, it was appropriate to distinguish between two types of proceedings, one concerning the companies which had withdrawn their undertakings and the other concerning companies which had got given any undertakings.The volume of United States fertilizer exports did not fluctuate between 1980 and 1982 in the manner indicated by the applicants.As regards the statement of reasons on which the contested regulations were based, it was appropriate to take account, on the one hand, of the fact that the regulations were adopted as a matter of urgency and that the applicants refused to cooperate in providing the Commission with information and, on the other hand, of the fact that the Community authorities enjoyed a very broad power of discretion of an economic and political nature as regards the concept of the interests of the Community and that that concept did not call for a specific statement of reasons, particularly where the imposition of a provisional duty was concerned.The Commission was justified in adopting the contested measures on the basis of the information available to it at the time of the adoption of Regulation No 349/81. The validity of that information was confirmed subsequently.The rise in the value of the dollar cannot have had any effect on the dumping margin since the factors to be taken into account in that regard are all expressed in dollars. Moreover, the undertakings given by certain exporters contributed in themselves towards curbing imports from the United States. The prices of fertilizer exported by the United States were still broadly competitive by comparison with the prices of fertilizer produced in the Community.None of the companies which honoured their undertakings had engaged in exportation since the adoption of the first regulation imposing a definitive duty; the undertakings given were still valid.The Advocate General delivered his opinion at the sitting on 10 January 1984.