Judgment_paragraph 20 · Ajinomoto Co., Inc. and The NutraSweet Company v Council of the European Union and Commission of the European Communities (C-76/98 P, C-77/98 P)

20As to the alleged infringement of the appellants' right to a fair hearing, the Court of First Instance held in paragraph 87 of the contested judgment:‘Even if it is accepted, as the applicants maintain, that the principle of the right to a fair hearing requires exporters to be informed of the essential facts and considerations on the basis of which it is intended to impose provisional duties, a failure to respect that right cannot in itself have the effect of vitiating the regulation imposing definitive duties. Such a regulation is distinct from the regulation imposing provisional duties, even if it is so closely connected with the latter that it may, in certain circumstances, take its place (Case 56/85 Brother v Commission [1988] ECR 5655, paragraph 6, Joined Cases 294/86 and 77/87 Tecbnointorg v Commission and Council [1988] ECR 6077, paragraph 12, and Joined Cases C-305/86 and C-160/87 Neotype Techmasbexport v Commission and Council [1990] ECR I-2945, paragraph 13; order of 10 July 1996 in Case T-208/95 Miwon v Commission [1996] ECR II-635, paragraph 20); consequently, its validity must be assessed in relation to the rules applying at the time of its adoption. Where, in the course of the procedure leading to the adoption of a regulation imposing a definitive duty, steps are taken to remedy a defect vitiating the adoption of the corresponding regulation imposing a provisional duty, the illegality of the provisional regulation does not render the definitive regulation illegal. Only in so far as the defect has not been remedied, and in so far as the definitive regulation refers to the provisional regulation, will the illegality of the earlier regulation render the later one illegal.’