Language of document : ECLI:EU:T:2008:263

JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber)

9 July 2008 (*)

(Non-contractual liability – Anti-dumping duties – Anti-dumping Regulation (EC) No 2320/97 – Lawyers’ fees incurred in domestic proceedings – Inadmissibility – Material and non-material damage – Causal link)

In Case T‑429/04,

Trubowest Handel GmbH, established in Cologne (Germany),

Viktor Makarov, residing in Cologne,

represented by K. Adamantopoulos and E. Petritsi, lawyers,

applicants,

v

Council of the European Union, represented by J.-P. Hix, acting as Agent, and G. Berrisch, lawyer,

and

Commission of the European Communities, represented by N. Khan and T. Scharf, acting as Agents,

defendants,

APPLICATION for compensation under Article 288 EC in respect of the damage allegedly suffered by reason of the adoption of Council Regulation (EC) No 2320/97 of 17 November 1997 imposing definitive anti-dumping duties on imports of certain seamless pipes and tubes of iron or non-alloy steel originating in Hungary, Poland, Russia, the Czech Republic, Romania and the Slovak Republic, repealing Regulation (EEC) No 1189/93 and terminating the proceeding in respect of such imports originating in the Republic of Croatia (OJ 1997 L 322, p. 1),

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Third Chamber),

composed of M. Jaeger, President, V. Tiili (Rapporteur) and O. Czúcz, Judges,

Registrar: C. Kristensen, Administrator,

having regard to the written procedure and further to the hearing on 22 November 2007,

gives the following

Judgment

 Background to the dispute

1        By an unpublished decision of 25 November 1994 (Case IV/35.304), adopted, in particular, on the basis of Article 14(3) of Council Regulation No 17 of 6 February 1962: First Regulation implementing Articles [81 EC] and [82 EC] (OJ, English Special Edition 1959-1962, p. 87), the Commission decided to initiate an investigation into the possible existence of anticompetitive practices in respect of carbon-steel tubes which might infringe Article 53 of the Agreement on the European Economic Area and Article 81 EC.

2        Following that investigation, the Commission decided, on 20 January 1999, to initiate administrative proceedings in Case IV/E-1/35.860-B – Seamless steel tubes, as a result of which it adopted, on 8 December 1999, Decision 2003/382/EC relating to a proceeding under Article 81 [EC] (Case IV/E-1/35.860-B – Seamless steel tubes) (OJ 2003 L 140, p. 1) (‘the cartel decision’).

3        According to Article 1(1) of the cartel decision, the eight undertakings to which it was addressed ‘have infringed the provisions of Article 81(1) [EC] by participating ... in an agreement providing, inter alia, for the observance of their respective domestic markets for seamless standard threaded [Oil Country Tubular Goods] pipes and tubes and project line pipe’. Article 1(2) of the cartel decision states that the infringement lasted from 1990 to 1995 in the case of Mannesmannröhren-Werke AG, Vallourec SA, Dalmine SpA, Sumitomo Metal Industries Ltd, Nippon Steel Corp., Kawasaki Steel Corp. and NKK Corp. In the case of British Steel Ltd, the infringement is stated to have lasted from 1990 to February 1994. Those undertakings were accordingly fined amounts ranging from EUR 8.1 million to EUR 13.5 million.

4        The cartel decision was the subject of Commission press release IP/99/957 of 8 December 1999 and was published in the Official Journal of the European Union on 6 June 2003.

5        On 8 July 2004, the Court, in its judgment in Joined Cases T-67/00, T‑68/00, T‑71/00 and T-78/00 JFE Engineering and Others v Commission [2004] ECR II‑2501, annulled Article 1(2) of the cartel decision in so far as the Commission had incorrectly stated that four of the undertakings mentioned in that article had participated in the cartel prior to 1 January 1991 and after 30 June 1994, and reduced the amounts of the fines which the Commission had imposed on those undertakings.

6        In addition, following a complaint lodged on 19 July 1996 by the Defence Committee of the Seamless Steel Tube Industry of the European Union, the Commission, pursuant to Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (OJ 1996 L 56, p. 1), as amended by Council Regulation (EC) No 2331/96 of 2 December 1996 (OJ 1996 L 317, p. 1), published, on 31 August 1996, a notice of the initiation of an anti-dumping proceeding concerning imports of certain seamless pipes and tubes of iron or non-alloy steel originating in Russia, the Czech Republic, Romania and the Slovak Republic (OJ 1996 C 253, p. 26).

7        On 29 May 1997, the Commission adopted Regulation (EC) No 981/97 imposing provisional anti-dumping duties on imports of certain seamless pipes and tubes of iron or non-alloy steel originating in Russia, the Czech Republic, Romania and the Slovak Republic (OJ 1997 L 141, p. 36).

8        On 17 November 1997, the Council adopted Regulation (EC) No 2320/97 imposing definitive anti-dumping duties on imports of certain seamless pipes and tubes of iron or non-alloy steel originating in Hungary, Poland, Russia, the Czech Republic, Romania and the Slovak Republic, repealing Regulation (EEC) No 1189/93 and terminating the proceeding in respect of such imports originating in the Republic of Croatia (OJ 1997 L 322, p. 1) (‘the definitive regulation’).

9        On 16 July 2004, the Council adopted Regulation (EC) No 1322/2004 amending the definitive regulation (OJ 2004 L 246, p. 10). Under Article 1 of that regulation, an Article 8 was added to the definitive regulation, by virtue of which Article 1 of the definitive regulation, which imposes anti-dumping duties on the imports which it covers, was, from 21 July 2004, no longer to be applied.

10      Trubowest Handel GmbH (‘Trubowest’) is a German company which imported seamless pipes and tubes of Russian origin into the Community. Trubowest, of which Mr Viktor Makarov has been the managing director since 1997, started to import those goods in January 1999 and ceased doing so in October 1999. Trubowest and Mr Makarov are the applicants in the present case.

11      In addition, from 1992 Mr Makarov was also the managing director of the company Truboimpex Handel GmbH (‘Truboimpex’), the commercial activity of which consisted in importing from 1996, inter alia on its own behalf, seamless tubes and seamless pipes of Russian origin into the Community.

12      On 15 October 1999, the Amtsgericht Kleve (Local Court, Cleves, Germany) issued an arrest warrant against, inter alios, Mr Makarov on the ground that he was ‘strongly suspected of having provided the tax authorities in Cologne and Emmerich, in the period from 1997 to 1999, with incorrect and incomplete information concerning important tax matters, [the] returns constituting 36 separate infringements, and of having thereby reduced [his] taxes, in order to obtain for [himself] or for other persons unjustified tax advantages, thereby enabling [him] to a considerable extent to evade import duties’. The arrest warrant further states that ‘[on] that occasion, the [tubes and pipes from Russia imported by Truboimpex and Trubowest] were the subject of false declarations designed to circumvent the provisions [of the definitive regulation]’.

13      Pursuant to that arrest warrant, Mr Makarov was placed in custody from 27 October 1999 until 12 November 1999. On his release, Mr Makarov was made subject to measures restricting his freedom of movement under which he was, inter alia, required to present himself at the relevant police station three times a week until 31 January 2000 and was unable to travel abroad without prior authorisation (‘the measures in restraint of freedom’).

14      As from 27 October 1999, the Hauptzollamt Emmerich (Principal Customs Office, Emmerich, Germany), now the Hauptzollamt Duisburg (Principal Customs Office, Duisburg, Germany) notified the applicants of post-clearance notices of assessment requiring payment of anti-dumping duties relating to the imports carried out by Truboimpex and Trubowest during the period from December 1997 to October 1999. The German customs authorities essentially took the view that the applicants’ imports had, incorrectly, not been classified under the Community nomenclature codes for seamless pipes and tubes covered by the definitive regulation. In those circumstances, the bank accounts of Trubowest and Mr Makarov were seized.

15      According to the German customs authorities, Truboimpex and Trubowest were thus liable, in respect of the outstanding anti-dumping duties, to pay EUR 1 575 181.86 and EUR 729 538.78 respectively, that is to say, a total of EUR 2 304 720.64, in anti-dumping duties not paid by those two companies. Furthermore, Mr Makarov was held liable, in his capacity as managing director of Trubowest and Truboimpex, for payment of the total amount owed by those companies.

16      From 16 and 17 November 1999, the applicants challenged before the Hauptzollamt Emmerich the post-clearance assessment notices for anti-dumping duties issued against Trubowest and Mr Makarov in accordance with Article 243 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1) (‘the CCC’) and the applicable national law. On 15 December 2000, the applicants brought an action before the Finanzgericht Düsseldorf (Finance Court, Düsseldorf, Germany) seeking suspension of the notices of assessment which were immediately enforceable. On 30 October 2001, the Finanzgericht Düsseldorf dismissed the applicants’ action. On 29 August 2003, the applicants lodged submissions before the Hauptzollamt Duisburg in which they argued, essentially, that the customs authorities had erred in taking the view that their imports came within the scope of the definitive regulation.

17      On 19 June 2000, the Staatsanwaltschaft Kleve (Public Prosecutor’s Office, Cleves, Germany) issued an indictment (Anklageschrift) against Mr Makarov on the basis of false customs returns relating to imports by Trubowest and Truboimpex. In that indictment, the Staatsanwaltschaft Kleve essentially took the view that a total amount of DEM 4 376 250.25, equivalent to EUR 2 237 541.22, was owed in respect of customs duties evaded in connection with the imports by Trubowest and Truboimpex.

18      On 14 November 2002, the Landgericht Kleve (Regional Court, Cleves, Germany) stayed the criminal proceedings against Mr Makarov pending the outcome of the fiscal proceedings concerning him.

19      On 15 December 2004, the applicants concluded a settlement agreement with the Hauptzollamt Duisburg, which brought to an end the dispute between them and the German customs authorities.

20      The settlement agreement provides, in particular, as follows:

‘Preamble

By means of this Statement the parties wish to bring to a definitive end the dispute existing between them regarding the legality of the assessments at issue. There is agreement between the parties that this Statement leaves open the dispute between the parties as to which steel pipes are or are not subject to the anti-dumping duty.

Having regard to the foregoing, the parties agree as follows:

(1.)

The … tax and liability assessment notices regarding anti-dumping duties in the amount of EUR 2 304 734.45 shall be settled by payment of a total of EUR 460 000 by [the applicants in particular]. There is agreement between the parties that, of the sum of EUR 435 125.21 thus far collected by the Duisburg Main Customs Office, only part thereof, to an amount of EUR 343 644.15 shall be used to offset the payable amount of EUR 460 000.

(3.)

Upon the signing of this agreement, all enforcement measures against Trubowest as well as [inter alios, Mr Makarov] shall be immediately discontinued.

(5.)

[The applicants] hereby waive the raising of any further claims, e.g. claims for damages, relating to the circumstances on which this Statement is based, against the Customs Authority. They also waive further legal remedies in proceedings directed against the Customs authority.

The ability to assert claims of this kind against others, particularly the compensation claims referred to … against the Commission and the Council … under Article 288 [EC], shall remain unaffected hereby.’

21      On 2 May 2005, the Landgericht Kleve (Local Court, Cleves, Germany) issued an order (Beschluss) bringing an end, in accordance with Paragraph 153a of the Strafprozessordnung-StPO (German Code of Criminal Procedure), to the criminal proceedings pending against Mr Makarov on condition of payment by him of a fine amounting to EUR 18 000. The Landgericht Kleve states in that order that it took into account the fact that ‘[Mr Makarov] declares that his agreement [that the criminal proceedings are to be discontinued] does not imply any admission of guilt, but is given on grounds of procedural and economic interest.’

 Procedure and forms of order sought

22      By application lodged on 25 October 2004, the applicants brought the present action for compensation.

23      Following the report of the Judge Rapporteur, the Court (Third Chamber) decided to open the oral procedure and, within the framework of the measures of organisation of procedure provided for in Article 64 of its Rules of Procedure, called on the parties to lodge certain documents and to provide written answers to questions. The parties complied with those requests within the periods prescribed.

24      The parties presented oral argument and replied to the questions put by the Court at the hearing on 22 November 2007.

25      The applicants claim that the Court should:

–        order the Community, in accordance with the second paragraph of Article 288 EC, to make good the damage suffered as a result of the adoption of the definitive anti-dumping measures prescribed by the definitive regulation, by awarding the amounts of:

–        EUR 118 058.46 to Trubowest by way of damages, together with default interest on that amount at the rate of 8% annually; that sum corresponds to the amount actually paid by Trubowest following the various notices of assessment for anti-dumping duties by the German customs authorities against the applicants and constitutes a loss of profit for Trubowest;

–        EUR 397 916.91 to Mr Makarov by way of damages, together with default interest on that sum, at the rate of 8% annually; that sum corresponds to the total sum of EUR 277 939.37 actually paid by Mr Makarov following the various notices of assessment for anti-dumping duties, while EUR 63 448.54 corresponds to the non-payment of wages by Trubowest to Mr Makarov and EUR 56 529 corresponds to lawyers’ fees and disbursements in respect of proceedings between them and the German customs authorities;

–        EUR 128 000 to Trubowest, in respect of loss of profit, together with default interest on that sum at the rate of 8% annually, or, in the alternative, a sum payable to Trubowest for damages to be agreed by the parties following an interlocutory judgment of the Court of First Instance;

–        EUR 150 000 to Mr Makarov to compensate him for the non-material damage suffered by him, together with default interest on that sum at the rate of 8% annually;

–        order the Council and the Commission to pay the costs.

26      The Council and the Commission contend that the Court should:

–        dismiss the action;

–        order the applicants to pay the costs.

 Admissibility

I –  Preliminary observations

27      The Council and the Commission raise a plea of inadmissibility with regard to the applicants’ claims for compensation, first, with respect to the amounts of EUR 118 058.46 and EUR 277 939.37 claimed by Trubowest and Mr Makarov respectively, corresponding to the sums seized by the German customs authorities in respect of the anti-dumping duties paid pursuant to the definitive regulation (‘the claims for compensation in respect of the anti-dumping duties paid’) and, second, with respect to the amount of EUR 56 529 concerning lawyers’ fees incurred in the proceedings which they conducted at national level and paid by Mr Makarov.

28      In that connection, the Council and the Commission claim, first, that the claims for compensation in respect of the anti-dumping duties paid are time-barred. Second, they submit that the Court has no jurisdiction to rule on either the claims for compensation in respect of the anti-dumping duties paid or the claim for compensation in the amount of EUR 56 529 in respect of lawyers’ fees incurred in the proceedings conducted by the applicants at national level and paid by Mr Makarov. Third, the Commission take the view that the action is inadmissible in so far as the applicants seek, by way of an action for compensation, to secure annulment of the legal effects of the definitive regulation.

29      The applicants reply, first, that the Court does have jurisdiction to deal with the above two actions for compensation and, second, that their claims for compensation in respect of the anti-dumping duties paid are admissible since they are not time-barred and do not constitute an indirect means to secure annulment of the definitive regulation.

30      In light of the foregoing, the Court considers that it is appropriate to examine, as a preliminary matter, whether it has jurisdiction with regard to, first, the claims for compensation in respect of the anti-dumping duties paid and, second, the claim for compensation in respect of the lawyers’ fees incurred at national level.

II –  Admissibility of the claims for compensation in respect of the anti-dumping duties paid

A –  Arguments of the parties

31      The Council and the Commission observe, first, that the claims for compensation in respect of the anti-dumping duties paid correspond to the amounts of the anti-dumping duties allegedly paid by the applicants pursuant to the definitive regulation. They submit, in that connection, that according to the judgments in Case C-282/90 Vreugdenhil v Commission [1992] ECR I-1937, paragraph 12, and Case T-167/94 Nölle v Council and Commission [1995] ECR II-2589, paragraphs 35 to 37, the Court does not have jurisdiction to award the compensation claimed, which consists of a claim for repayment of anti-dumping duties paid by the applicants and with respect to which the national courts alone have jurisdiction. Furthermore, the Council and Commission take the view, in answer to the written questions put by the Court, that the approach adopted by the Court in its order in Case T‑91/05 Sinara Handel v Council and Commission [2007] ECR II-245, paragraph 64, (‘the Sinara order’) regarding the inadmissibility of the action is applicable to the present case.

32      Second, the Council and Commission take the view that the appropriate means to challenge the levying of the anti-dumping duties paid by the applicants would have been an appeal against the assessment notices before the competent national courts, in the course of which the latter could have referred a question to the Court of Justice for a preliminary ruling on the legality of the definitive regulation, thereby enabling the applicants, if the definitive regulation were held to be illegal, to obtain reimbursement of the anti-dumping duties paid by them from the national courts. The Council points out, in that connection, that it was the applicants themselves who, by concluding the settlement agreement, brought an end to the national proceedings which they had brought.

33      Third, the Council and the Commission submit that, contrary to the applicants’ assertions, the Community Courts do not have jurisdiction in respect of wrongful acts which may have been committed by the German authorities in the application of the definitive regulation. The applicants’ arguments that they have exhausted national remedies are, in their view, consequently irrelevant.

34      Fourth, the Council and the Commission submit that the applicants’ argument that the national remedies must provide effective protection is irrelevant since German law allows reimbursement of anti-dumping duties levied, which is, moreover, something that the applicants attempted to obtain by appealing against the assessment notices issued by the German customs authorities. Furthermore, the Council takes the view that the settlement agreement does not give rise to jurisdiction on the part of the Community Courts where no such jurisdiction existed previously.

35      That plea is, in the applicants’ view, unfounded. First, they submit that, in accordance with the judgments in Case 175/84 Krohn v Commission [1986] ECR 753, and in Joined Cases C-104/89 and C‑37/90 Mulder and Others v Council and Commission [1992] ECR I‑3061, the Community Courts have exclusive jurisdiction to make good damage caused by the measures adopted by a national body pursuant to Community legislation. In that connection, the applicants take the view that, contrary to the assertions of the Council and the Commission, the damage they suffered arises not from the illegality of the decisions taken by the German customs authorities, but from the illegality of the conduct of the Council and the Commission at the time when the definitive regulation was adopted, on the basis of which anti-dumping duties were imposed on them by the German customs authorities, which had no discretion when it came to enforcing the definitive regulation.

36      Next, the applicants submit that the Council and the Commission wrongly refer to Vreugdenhil v Commission, cited in paragraph 31 above, in support of the view that only the national courts have jurisdiction in so far as, in this case, first, it has not been established that the German authorities wrongly imposed anti-dumping duties and, second, the definitive regulation has never been declared illegal. Moreover, the applicants take the view that, contrary to the assertions of the Council and the Commission, the issue of jurisdiction of the Court may be linked to that of the exhaustion of domestic remedies, as it is clear from Nölle v Council and Commission, cited in paragraph 31 above (paragraph 35). In that connection, they take the view that the requirement that domestic remedies be exhausted must never impede the admissibility of an action, in particular where the exclusive jurisdiction of the Community Courts has been established.

37      Furthermore, the applicants submit, in particular in response to the written questions put by the Court that, by contrast to the facts which gave rise to the Sinara order, cited in paragraph 31 above, after concluding the settlement agreement they no longer have any domestic remedies available and it is therefore impossible for the Court of Justice to examine the legality of the definitive regulation in the context of a reference for a preliminary ruling. They point out that they should not be penalised for the fact that they concluded an agreement bringing an end to the proceedings in which they were involved. They also submit that the amounts for which they seek compensation form part of the sum of EUR 460 000 for which they remain liable under the settlement agreement.

38      Second, the applicants submit that, contrary to the assertions of the Commission and the Council, the domestic remedies available to them at the time when the definitive regulation was implemented were not capable of affording them effective protection. First, they claim that, in 1999, when they challenged the assessment notices from the German customs authorities, they were unaware of the cartel and, by contrast to the facts giving rise to the Sinara order, cited in paragraph 31 above, they were therefore unable to raise the illegality of the definitive regulation within the three-year period provided for in Article 236(2) of the CCC.

39      The applicants then go on to submit that in 2003, after the publication of the cartel decision in the Official Journal of the European Union, the question of the illegality of the definitive regulation was raised before the competent German authority. However, they take the view that, in so far as the central issue in the dispute between them and the German customs authorities was the classification of the goods which they were importing, they cannot be criticised for having concluded the settlement agreement after intense pressure, in particular from the Russian Government and the Commission. Therefore, in their view, the argument of the Council and the Commission that they should have continued their actions in order that a German court could make a reference for a preliminary ruling to the Court of Justice as to the legality of the definitive regulation reflects merely theoretical possibilities which were not realised and which could not in fact have been realised.

40      Third, the applicants take the view that, by contrast to the facts which gave rise to the Sinara order, cited in paragraph 31 above, the Court has jurisdiction to adjudicate on their claims for compensation in respect of the anti-dumping duties paid in so far as they suffered a loss resulting from the fact that the sums demanded were the subject of seizure measures. The applicants accordingly take the view that their actions are not claims for repayment of the anti-dumping duties paid. They further claim that the amount of the compensation which they seek is not equal to the amount initially claimed by the German customs authorities and for which they remain liable.

B –  Findings of the Court

41      The Council and the Commission submit essentially that the claims for compensation are in fact claims for repayment of the anti-dumping duties which the applicants paid to the German customs authorities pursuant to the definitive regulation. The Court, they argue, does not have jurisdiction to deal with claims of that kind.

42      In that connection, first of all, it must be stated that, as the Court observed in the Sinara order, cited in paragraph 31 above (paragraph 46), under Article 236(2) of the CCC ‘[i]mport duties … shall be repaid or remitted upon submission of an application to the appropriate customs office within a period of three years from the date on which the amount of those duties was communicated to the debtor’. In addition, the first subparagraph of Article 243(1) of the CCC provides that ‘[a]ny person shall have the right to appeal against decisions taken by the customs authorities which relate to the application of customs legislation, and which concern him directly and individually’. The third subparagraph of that provision states that ‘[t]he appeal must be lodged in the Member State where the decision has been taken …’. Finally, under Article 245 of the CCC, ‘[t]he provisions for the implementation of the appeals procedure shall be determined by the Member States’.

43      It must therefore be held that the secondary Community law which applies has expressly prescribed the remedy available to import duty debtors who consider that such duties have been wrongly imposed on them by the customs authorities. That remedy is exercisable at national level, in accordance with the appeals procedure implemented by the Member State in question in compliance with the principles set out in Articles 243 to 246 of the CCC. On such an appeal, such a debtor may, in addition, request the competent court seised of the proceedings to make a reference, in accordance with heading (b) of the first paragraph of Article 234 EC, for a preliminary ruling on the validity of the Community provision on the basis of which the decision to impose duties was adopted (Sinara order, cited in paragraph 31 above, paragraph 47).

44      In an action for damages brought following a judgment delivered on such a reference for a preliminary ruling on validity, the Court of Justice has held that the national courts alone have jurisdiction to entertain an action for the recovery of amounts wrongfully charged by a national administration on the basis of Community rules which are subsequently declared invalid (Vreugdenhil v Commission, cited in paragraph 31 above, paragraph 12, and Sinara order, cited in paragraph 31 above, paragraph 48).

45      In the present case, it is true, as the Court observed in the Sinara order, cited in paragraph 31 above (paragraph 49), that formally, in the application, the applicants classify as ‘loss of profit’ the damage for which they claim compensation in respect of the anti-dumping duties which they paid. However, the Court has already held that an applicant’s action seeking compensation for loss or damage to its business, equal to the loss of profit resulting from the suspension of its exports to the Community as well as the cost of re-establishing itself on the Community market, as a result of a wrongful act by the Commission which led to the imposition of provisional measures against imports of its products, was distinguishable from a claim seeking the repeal of the provisional anti-dumping and countervailing measures imposed on imports of its products into the Community and the release of the amounts already lodged, if any, by way of provisional duties, and that, accordingly, such an action had to be declared to be admissible (see, to that effect, Case T-178/98 Fresh Marine v Commission [2000] ECR II‑3331, paragraph 46, and the Sinara order, cited in paragraph 31 above, paragraph 49).

46      However, it must also be stated, first, that the applicants expressly state in the application and the reply that their claims consist of claims for ‘compensation’ corresponding to sums which were collected as a result of various recovery orders issued by the German customs authorities or again that they seek compensation for ‘damage’ arising from the anti-dumping duties which they actually paid. Second, it is clear from the evidence provided by the applicants that payment of the sum of EUR 118 058.46 which they claim as compensation corresponds to the exact amount of the anti-dumping duties that the customs authorities recovered from Trubowest. Moreover, the applicants claim, as compensation for the anti-dumping duties paid by Mr Makarov, EUR 277 939.37, which is EUR 8 702.96 more than the sum of EUR 269 236.41, which, as appears in an annex to the application, Mr Makarov paid solely in respect of the anti-dumping duties imposed. In their written pleadings, the applicants assert, however, that the sum of EUR 8 702.96 results from the costs of compulsory enforcement by the German authorities relating to recovery of the anti-dumping duties that they also had to pay and that, in any event, the applicants claim damages only for the amount which was accepted as being definitively owed in respect of anti-dumping duties.

47      It follows that, as the Court held in the Sinara order, cited in paragraph 31 above (paragraph 51), beyond the purely formal description as ‘loss of profit’ ascribed to the pleaded damage, that damage, as identified and quantified by the applicants, must, in reality, be regarded as arising directly, necessarily and exclusively from the payment of sums owed in respect of the anti-dumping duties imposed, with the result that the claims brought by the applicants are, in fact, claims for repayment of the duties which they claim to have wrongly paid.

48      In accordance with Vreugdenhil v Commission, cited in paragraph 31 above, (paragraph 12), such a claim for repayment falls exclusively within the jurisdiction of the national courts. Therefore, the applicants’ arguments that the Court has jurisdiction to entertain their claims for compensation in that connection cannot be accepted.

49      In the first place, it is necessary to reject the applicants’ arguments, set out in their reply to the written questions put by the Court and in their written pleadings, that their claims for compensation cannot be treated as claims for repayment of the anti-dumping duties by reason of the fact that, first, by contrast to the facts giving rise to the Sinara order, cited in paragraph 31 above, the anti-dumping duties in respect of which they claim compensation were not paid voluntarily but were seized and, second, that their claims relate only to that part of the anti-dumping duties which they paid and not to the total amount of anti-dumping duties initially sought by the German customs authorities. In that connection, it is sufficient to note that, if the compensation claimed seeks repayment of anti-dumping duties paid pursuant to the definitive regulation, the fact that those duties were paid voluntarily by the applicants or seized by the German customs authorities, or that they consist of only part of the total amount of the anti-dumping duties initially sought by the German customs authorities, does not in any way alter the actual nature of the compensation claimed, namely that it seeks to secure reimbursement of the anti-dumping duties paid pursuant to the definitive regulation.

50      In the second place, there is no foundation to the applicants’ argument that it is not possible to conclude, on the basis of Vreugdenhil v Commission, cited in paragraph 31 above, that the Court lacks jurisdiction in this case, since, first, the definitive regulation has not been declared invalid by the Court of Justice in proceedings for a preliminary ruling, while such an action has become impossible because of the settlement agreement and, second, it has not been established that the German customs authorities erred in their application of the definitive regulation.

51      Even if the Court were to declare, as part of the examination of the requirements for non-contractual liability to be incurred by the Community, that the definitive regulation is vitiated by illegality, that fact could not confer jurisdiction on the Court to entertain an application for repayment of the sums collected by the customs authorities on the basis of that regulation (Sinara order, cited in paragraph 31 above, paragraph 53).

52      First, it is necessary to recall, in that regard, that under Article 2(1)(b) of each of the two decisions on the system of the European Communities’ own resources successively applicable to the facts of this case, namely Council Decision 94/728/EC, Euratom of 31 October 1994 (OJ 1994 L 293, p. 9), then, with effect from 1 January 2002, Council Decision 2000/597/EC, Euratom of 29 September 2000 (OJ 2000 L 253, p. 42), the following are to constitute own resources entered in the budget of the Communities: ‘Common Customs Tariff duties and other duties established or to be established by the institutions of the Communities in respect of trade with non-member countries’ (Sinara order, cited in paragraph 31 above, paragraph 54).

53      Article 8(1) of those decisions provides further, in particular, that the Communities’ own resources referred to in Article 2(1)(a) and (b) thereof are to be collected by the Member States in accordance with the national provisions imposed by law, regulation or administrative action, which are, where appropriate, to be adapted to meet the requirements of Community rules (Sinara order, cited in paragraph 31 above, paragraph 55).

54      Thus, the fact that the powers relating to the collection of the Communities’ own resources, which include anti-dumping duties, are those of the national authorities justifies disputes in connection with import duties collected for the Community falling within the jurisdiction of the national courts and having to be determined by them under the appeals procedure implemented by the Member State concerned in compliance with the principles laid down in Articles 243 to 246 of the CCC (see, to that effect, Case 26/74 Roquette Frères v Commission [1976] ECR 677, paragraph 11, and Sinara order, cited in paragraph 31 above, paragraph 56).

55      In that regard, it must also be noted that, as part of the procedure under Article 11(8) of Regulation No 2331/96, which enables an importer to request repayment of duties collected where it is shown that the dumping margin, on which the duties were paid, has been eliminated, or reduced to a level which is below the level of the duty in force, although the claim for repayment in question is to be submitted by the importer to the Commission via the Member State of the territory in which the products were released for free circulation, if the Commission decides that the application should be granted, the payment of the refund so authorised should normally be made by the Member States within 90 days of the Commission’s decision, in accordance with the last subparagraph of that provision (Sinara order, cited in paragraph 31 above, paragraph 57).

56      Second, and by contrast to the facts which gave rise to the Sinara order, cited in paragraph 31 above (paragraph 58), in which the Court held that the applicant had submitted an application for repayment to the national court on the basis of Article 236 of the CCC which was rejected in part, and which was the subject of an appeal pending before the national court when the Court gave its ruling, it must be held that, in this case, it is clear from the applicants’ written pleadings and the documents which they have submitted that they challenged the various recovery notices issued against them on the basis of Article 243 of the CCC before the competent national authorities but that, by concluding the settlement agreement, they brought an end to those actions and thereby waived their right to have the national courts, which might have been under an obligation to make a reference for a preliminary ruling to the Court of Justice as to the validity of the definitive regulation, rule on their claims for repayment of the anti-dumping duties which they had paid.

57      It must be recalled in that regard that, according to the case-law, where an individual feels that he has been adversely affected by the application of a measure of Community law which he considers to be illegal, he may, when the implementation of that measure is entrusted to the national authorities, contest the validity of the measure, when it is implemented, before a national court in proceedings between himself and the national authority. Under the conditions set out in Article 234 EC, that court may, or even must, refer to the Court of Justice a question on the validity of the Community measure in question (Case 281/82 Unifrex v Council and Commission [1984] ECR 1969, paragraph 11, Nölle v Council and Commission, cited in paragraph 31 above, paragraph 35, and Sinara order, cited in paragraph 31 above, paragraph 60).

58      It is true that, according to the judgment in Case C-239/99 Nachi Europe [2001] ECR I-1197, paragraphs 35 to 37, the Court of Justice held that the general principle 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 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 (see, with regard to a Commission decision, Case C‑188/92 TWD Textilwerke Deggendorf [1994] ECR I-833, paragraphs 24 and 25). According to the Court of Justice, such a conclusion applies to regulations imposing anti-dumping duties by virtue of their dual nature, which follows from the fact that regulations imposing an anti-dumping duty, although by their nature and scope of a legislative nature, are liable to be of direct and individual concern, particularly, to those producers and exporters who are able to establish that they were identified in the measures adopted by the Commission or the Council or were concerned by the preliminary investigations (Joined Cases 239/82 and 275/82 Allied Corporation and Others v Commission [1984] ECR 1005, paragraph 12), or, again, to those importers whose retail prices for the products in question form the basis of the constructed export price, where exporter and importer are associated (Joined Cases C-305/86 and C-160/87 Neotype Techmashexport v Commission and Council [1990] ECR I-2945, paragraph 19, and Sinara order, cited in paragraph 31 above, paragraph 61).

59      However, it must be stated that, in the present case, the applicants do not appear to be covered by any of those cases. First, they are not in any way identified in either Regulation No 981/97 or the definitive regulation as producers and exporters and, as importers, they could not have been concerned by the preliminary investigations in that respect. Second, it does not appear from those regulations that the retail prices charged by the applicants formed the basis of the constructed export price, even assuming that they were associated with an exporter.

60      Therefore, without there even being any need to determine whether the fact that the applicants cannot admissibly allege that the definitive regulation is illegal might render their present action admissible, the Court finds that the applicants cannot be regarded as being directly and individually concerned by the definitive regulation, with the result that they would not have been regarded as acting inadmissibly in alleging the illegality of that regulation in a national dispute, pursuant to the case-law emanating from the judgment in Nachi Europe, cited in paragraph 58 above (paragraphs 35 to 37) and the Sinara order, cited in paragraph 31 above (paragraph 63).

61      Thus, in the same way as the Court ruled in the Sinara order, cited in paragraph 31 above (paragraph 64), that it was not inconceivable that the national court before which an action was pending might make a reference for a preliminary ruling, it was by no means impossible that, in this case, if it had doubts as to the definitive regulation’s validity for the reasons relied upon by the applicants, that is to say, the failure to take into account the effect of the cartel in the context of anti-dumping proceedings, the national court could, if the applicants had maintained their action before the national courts, have made a reference to the Court of Justice for a preliminary ruling on that regulation’s validity and that, if appropriate, the latter would have declared it invalid.

62      In that case, it must be recalled that a judgment of the Court of Justice declaring a Community act to be void requires all the courts of the Member States to regard that act as invalid (Case 66/80 International Chemical Corporation [1981] ECR 1191, paragraphs 12 and 13) and requires the author of the invalidated act to amend or repeal it (Joined Cases 117/76 and 16/77 Ruckdeschel and Others [1977] ECR 1753). Furthermore, it is first of all for the national authorities to draw the consequences in their respective legal systems of the declaration of such invalidity (Case 23/75 Rey Soda [1975] ECR 1279, paragraph 51), which would have meant that the anti-dumping duties paid would no longer have been legally due and would, in principle, have had to be repaid by the customs authorities (Sinara order, cited in paragraph 31 above, paragraph 65).

63      In that connection, it must therefore be stated that the fact that the national courts have not had the opportunity to make a reference to the Court of Justice for a preliminary ruling in order to establish whether the definitive regulation is lawful, inasmuch as the applicants have brought an end to the actions which they instituted at national level by concluding the settlement agreement, is not, however, such as to confer jurisdiction on the Court to adjudicate on their claims for compensation in respect of the anti-dumping duties paid.

64      Third, it is necessary to reject the applicants’ arguments that the Court has jurisdiction in this case on the ground that no national remedies were available to them which could effectively protect their rights when the definitive regulation was implemented.

65      The applicants submit, first, that they were unable, before the national courts, to request repayment of the anti-dumping duties on the basis of the illegality of the definitive regulation under Article 236 of the CCC by reason of the wrongful conduct of the Council and the Commission in so far as, first, they were not aware of that wrongful conduct when they appealed on the basis of Article 243 of the CCC and, second, they were unable to make an application for repayment on the basis of Article 236 of the CCC in so far as they were unaware of the existence of the cartel until three years after the actions had been brought.

66      It must be pointed out that, in answer to the questions put by the Court at the hearing, the applicants expressly acknowledged that they could, in accordance with the applicable provisions of German law, and as the Council also submits, have raised the illegality of the definitive regulation in the course of the proceedings which they had brought before the national German authorities, but that they raised that issue only in their negotiations with the German customs authorities which led to the settlement agreement, since the issue of classification of the imports alone was important, in their view, in the proceedings brought. In that connection, it must be stated, as is clear from their grounds for annulment lodged on 29 August 2003 before the Hauptzollamt Duisburg, annexed to the reply, that the applicants did not allege that the definitive regulation was illegal even when the cartel decision was published on 6 June 2003, that is to say, more than two and a half months before the applicants’ grounds for annulment were lodged. Furthermore, it may be noted that the fact that the applicants instituted proceedings on the basis of Article 243 CCC and not on the basis of Article 236 CCC is irrelevant since, by continuing their actions, the applicants could, in a reference for a preliminary ruling to the Court of Justice ordered by the national court in accordance with the case-law cited in paragraph 62 above, have requested an examination of the legality of the definitive regulation.

67      It must therefore be held that the applicants themselves acknowledge that, in this case, an effective remedy was available, in the national proceedings which they had instituted, which enabled them to challenge the payment of the anti-dumping duties by raising the illegality of the definitive regulation, but that they brought an end to those proceedings by concluding the settlement agreement.

68      Second, the applicants’ argument that, in essence, they did not voluntarily bring an end to the domestic proceedings which they had instituted is manifestly unfounded. It must in that regard be stated, first of all, that the applicants have not adduced any evidence in support of their assertion that they were subjected to pressure from the Community or Russian authorities to conclude the settlement agreement, or that the pressure to which they were subjected forced them to conclude the settlement agreement. In support of their assertions the applicants merely produce letters exchanged between the Russian, Community and German authorities which deal essentially with the classification of the imports of tubes and pipes, but in which there is no evidence that the applicants were in any way forced by those authorities to terminate the national proceedings brought. Next, it must be observed that, in any event, the applicants appear to contradict themselves in that respect, since they apparently rely on the fact that they themselves sought to conclude the settlement agreement in order to minimise their losses. In particular, the applicants state in that connection that ‘[Trubowest] eventually succeeded in mitigating its loss, with the settlement agreement, since instead of being held liable for all claims arising from the post recovery tax orders, it agreed to pay a lesser, although still substantial amount’. Finally, it must be stated that the applicants do not provide any evidence that the criminal proceedings brought against Mr Makarov did not leave them any other choice than to conclude the settlement agreement or that those criminal proceedings were manifestly abusive.

69      Fourth, it is necessary to reject the applicants’ argument that, inasmuch as the damage they suffered arose as a result of the wrongful conduct of the Council and the Commission, the Community Courts have exclusive jurisdiction to deal with this action without any need for them to satisfy the requirement that domestic remedies be exhausted.

70      It is true that, according to settled case-law, the combined provisions of Articles 235 EC and 288 EC give exclusive jurisdiction to the Community Courts to hear actions seeking compensation for damage attributable to the Community (Vreugdenhil v Commission, cited in paragraph 31 above, paragraph 14, and Joined Cases T-481/93 and T‑484/93 Exporteurs in Levende Varkens and Others v Commission [1995] ECR II-2941, paragraph 72). That principle governs the division, between the national courts and the Community Courts, of jurisdiction to award compensation for the damage suffered by subjects because of the conduct of national and Community authorities. However, the Community Courts cannot be absolved from scrutinising the true nature of actions brought before them on the sole ground that the alleged wrongdoing is attributable to the Community institutions (Sinara order, cited in paragraph 31 above, paragraph 79).

71      In the present case, as stated in paragraph 47 above, the applicants’ action seeks to obtain repayment of the anti-dumping duties paid to the national customs authorities. Therefore, even if the wrongful conduct alleged by the applicants were attributable to the Community, the fact remains that, in accordance with Vreugdenhil v Commission, cited in paragraph 31 above (paragraph 12) and Nölle v Council and Commission, cited in paragraph 31 above (paragraph 35), such a request falls within the jurisdiction of the national courts, which have the power and even the obligation, under the conditions set out in the third paragraph of Article 234 EC, to refer a question to the Court of Justice for a preliminary ruling as to the validity of the definitive regulation.

72      It follows from all of the foregoing that, in so far as the applicants’ claims for compensation must be regarded as claims for repayment of the anti-dumping duties which they paid, the Court does not have jurisdiction to deal with them.

73      Those claims for compensation must accordingly be declared inadmissible, without there even being any need to examine whether, as the Council and the Commission also claim, those claims are time-barred or whether they in fact constitute an indirect means to secure annulment of the definitive regulation.

74      Furthermore, in so far as the Court does not have jurisdiction to deal with these claims for compensation, the applicants’ claim for default interest in that connection must be dismissed.

III –  Admissibility of the claim for compensation in respect of the lawyers’ fees incurred in domestic proceedings

A –  Arguments of the parties

75      The Council and the Commission argue that, in accordance with Nölle v Council and Commission, cited in paragraph 31 above (paragraphs 35 to 37), the lawyers’ fees incurred in domestic proceedings by the applicants for the purpose of challenging the collection of anti-dumping duties are costs ancillary to the main proceedings because they relate exclusively to the proceedings between the applicants and the German authorities. They accordingly take the view that the Court does not have jurisdiction to adjudicate on that claim, which is ancillary to the claim in respect of the anti-dumping duties paid.

76      The applicants reply that the lawyers’ fees amounting to EUR 56 529 incurred in the domestic proceedings are not ancillary to their claim for compensation in respect of the anti-dumping duties, but that, by contrast to the facts which gave rise to the Sinara order, cited in paragraph 31 above, they are costs connected with the imposition of anti-dumping measures and measures in restraint of freedom. Furthermore, in so far as the applicants remain liable to pay those costs under the settlement agreement, they constitute damage in respect of which compensation may be claimed.

B –  Findings of the Court

77      According to settled case-law, when an action for compensation before the Community Courts may, in certain cases, be subject to prior exhaustion of internal remedies available for challenging the validity of a Community decision, disputes coming within the jurisdiction of national courts must be settled by those courts pursuant to their national law in so far as Community law has not determined the matter, and that, in the absence of Community provisions on the matter, it is for the national authorities to settle all ancillary questions relating to the main dispute (Roquette Frères v Commission, cited in paragraph 54 above, paragraph 12, and Nölle v Council and Commission, cited in paragraph 31 above, paragraph 36).

78      Thus, it follows from that case-law that the question of the reimbursement of costs incurred in national proceedings, which is an issue ancillary to the main dispute, comes within the exclusive jurisdiction of the national court, which, in the absence of relevant harmonising measures of Community law, must settle such a question, pursuant to the applicable national law (see, to that effect, Nölle v Council and Commission, cited in paragraph 31 above, paragraph 37).

79      In the present case, it is clear from an annex to the reply that the compensation claimed by the applicants corresponds to lawyers’ fees incurred from September 2002 to September 2004 in the national proceedings between the applicants and the German customs authorities. In that connection, it may also be noted that the applicants acknowledge in their pleadings that the sum claimed by way of compensation was incurred with respect to the ‘very lengthy dispute [with the German customs authorities which] concerned the classification of threaded and threadable pipes and tubes’ and that ‘it did not concern the legality or not of the [definitive] [r]egulation’.

80      The reimbursement of the lawyers’ fees claimed is therefore ancillary to the main dispute between the applicants and the German customs authorities. As stated in paragraphs 47 and 48 above, the main dispute concerned the repayment of the anti-dumping duties and came within the exclusive jurisdiction of the national courts, and not that of the Community Courts.

81      The applicants’ argument in that regard that, in essence, the Court has jurisdiction to compensate them in respect of those fees since they result directly and exclusively from the restrictive measures against the applicants taken by the German customs authorities cannot be accepted. It is sufficient to state, in that regard, that the fact that those lawyers’ fees had to be incurred because of the actions which they had brought in order to challenge the measures taken against them by the German customs authorities does not alter the finding that those fees are ancillary to the main dispute and, therefore, that only the national courts had jurisdiction to deal with those actions. Furthermore, it must be stated that, as set out in the settlement agreement, the applicants waived the right to seek reimbursement of their lawyers’ fees, while reserving the right to claim compensation in that regard in the present proceedings. The fact that, in the settlement agreement, the applicants waived the right to claim repayment of those amounts before the national courts is not such as to confer on the Court jurisdiction in the matter which it does not have, for the reasons set out in paragraph 78 above.

82      Therefore, the applicants’ claim for compensation in respect of the lawyers’ fees incurred in the domestic proceedings must be declared inadmissible, together with their claim for default interest in that respect inasmuch as no compensation can be awarded to them.

 Substance

I –  Preliminary observations

83      It is necessary to examine the merits of the applicants’ claims for compensation, first, in respect of the material damage which consists in a loss of profit for Trubowest and a loss of salary for Mr Makarov, estimated at EUR 128 000 and EUR 63 448.54 respectively, and, second, in respect of the non-material damage suffered by Mr Makarov, which the applicants estimate at EUR 150 000.

84      As is clear from settled case-law, in order for the Community to incur non-contractual liability, within the meaning of the second paragraph of Article 288 EC, for unlawful conduct of its institutions, a number of conditions must be satisfied: the conduct of the institution in question must be unlawful, actual damage must have been suffered, and there must be a causal link between the conduct and the damage pleaded (Case 26/81 Oleifici Mediterranei v EEC [1982] ECR 3057, paragraph 16, and Case T-383/00 Beamglow v Parliament and Others [2005] ECR II-5459, paragraph 95).

85      If any one of those three conditions for the engagement of non-contractual liability on the part of the Community is not satisfied, the claims for compensation will have to be dismissed, without there being any need to consider whether the other two conditions are satisfied (Case T-170/00 Förde-Reederei v Council and Commission [2002] ECR II-515, paragraph 37; see, to that effect, Case C-146/91 KYDEP v Council and Commission [1994] ECR I-4199, paragraph 81). Furthermore, the Community Courts are not obliged to examine those requirements in any particular order (Case C-257/98 P Lucaccioni v Commission [1999] ECR I-5251, paragraphs 13 to 15).

86      In the light of the foregoing, the Court considers that it is appropriate to examine at the outset the question whether the applicants have established the existence of a causal link between the alleged wrongful conduct of the Council and the Commission and the material and non-material damage which they themselves allege.

II –  The causal link between the alleged wrongful conduct of the Council and the Commission and the alleged damage

A –  Arguments of the parties

87      In the first place, the applicants submit that the material and non-material damage which they allege derives directly from the application of the definitive regulation. They take the view in that regard that if the Council and the Commission had taken into consideration the existence of the cartel in the context of the anti-dumping proceedings, the outcome of the anti-dumping investigation might have been different and the anti-dumping duties would not have been imposed or would have been imposed in a different form. The applicants submit, in effect, that, had it not been for the wrongful conduct on the part of the institutions, they would have continued to import their goods into the Community without having to pay anti-dumping duties or being subject to restrictive measures, such as the seizure of their accounts, the incarceration of Mr Makarov or the adoption of post-clearance assessment notices for the anti-dumping duties.

88      First, the applicants submit that the wrongful conduct of the Council and the Commission is the direct cause of the damage which they suffered, since the German authorities did not have any margin of discretion when applying the definitive regulation.

89      Second, the applicants submit that there is no evidence that they deliberately classified their imports incorrectly and that the issue of classification was genuinely problematic, as their dispute with the German customs authorities demonstrates.

90      In addition, they claim that, contrary to what the Council and the Commission argue, the causal link between their wrongful conduct and the damage alleged was not broken by reason of their own conduct. In that connection, the applicants state that if they had had any doubts concerning the classification of their imports they would have requested a binding tariff information. The applicants claim that they had no reason to doubt their classification of the imports, taking into account the external checks and the opinions of independent experts which they had received confirming the correctness of their classification of their imports. In that connection, they submit, first of all, that the Hauptzollamt Köln West (Principal Customs Office, Cologne West) carried out an inspection of the imports made by Truboimpex but did not raise any objections in that regard. Next, they attach a statement by Truboimpex’s authorised agent to the effect that a customs agent had confirmed to the applicants that Truboimpex had correctly classified its imports. Furthermore, an expert opinion from the Oberfinanzdirektion Cottbus (Regional Finance Directorate, Cottbus) of 5 August 1998 confirmed that Truboimpex had correctly classified its imports. In addition, an independent expert’s report of March 2001 by the World Customs Organisation concluded that the classification of their imports was correct.

91      Finally, the applicants point out that the classification dispute is independent of the legality of the definitive regulation. They take the view that, contrary to what the Council and the Commission submit, the causal link cannot be broken by the uncertainty left by the settlement agreement as to whether the imports came within the scope of the definitive regulation, since that issue was not left deliberately unresolved. They note, in that connection, that the Commission must have accepted the settlement agreement, as the German authorities would never have agreed to settle otherwise. They also note that the settlement agreement provides that it was concluded without prejudice to the present proceedings.

92      In the second place, the applicants claim that the damage which they incurred is both material and non-material.

93      First, as regards the material damage, the applicants claim that Trubowest recorded a loss of profit of EUR 128 000, corresponding to the profits which would have been made from 27 October 1999 until the date on which the application was lodged, that being a loss which Trubowest would not have incurred if it had not had to cease trading because of the imposition of the anti-dumping duties provided for by the definitive regulation. However, given the difficulty in estimating such damage, the applicants ask the Court, in the alternative, to rule on the question of damage in an interlocutory judgment and to leave the task of quantifying the precise extent of that damage to the parties.

94      The applicants also claim that Mr Makarov suffered a loss of earnings of EUR 63 448.54 by reason of the fact that he did not receive his salary as managing director of Trubowest from 27 October 1999 until the date on which the application was lodged, as Trubowest was forced to cease trading as a result of measures taken by the German authorities against it for non-payment of anti-dumping duties.

95      Second, the applicants submit that Mr Makarov suffered non-material damage in three respects for which he is entitled to obtain compensation, under provisions of both German law and Community law; this they estimate at EUR 150 000. First of all, the applicants take the view that Mr Makarov suffered non-material damage by virtue of the measures in restraint of freedom to which he was subject. Next, they submit that Mr Makarov suffered physical and psychological damage by reason of the fact that he was subject to enormous psychological strain resulting from the measures in restraint of freedom and the fiscal and criminal proceedings brought against him. Finally, the applicants submit that Mr Makarov suffered damage to his reputation as a successful, honourable and respected businessman both in the press and in the circles in which he was carrying on business by reason of the measures in restraint of freedom to which he was subject and the criminal and fiscal proceedings brought against him.

96      Third, the applicants take the view that the Council’s argument that the causal link is not sufficiently direct, in so far as the damage suffered would also have occurred in the case of lawful conduct on the part of the institutions, is irrelevant, since it has been established, in accordance with Fresh Marine v Commission, cited in paragraph 45 above, that there is a sufficiently direct link between the wrongful conduct of the Council and the Commission and the alleged damage.

97      The Council and the Commission reply, in substance, that there is no sufficiently direct causal link between their alleged wrongful conduct and the alleged damage inasmuch as the causal link was broken by reason of the conduct of the applicants themselves or of that of the national authorities.

B –  Findings of the Court

98      The applicants submit essentially that there is a direct link between the wrongful conduct of the Council and Commission and the material and non-material damage which they suffered. They take the view that, if the existence of the cartel had been taken into consideration in the context of the procedure for adoption of the definitive regulation, the latter would not have been adopted or would have been adopted in a different form. Therefore, they argue, first, that they would not have suffered any material damage if Trubowest had not been forced to cease trading and if Mr Makarov had continued to receive the salary paid by Trubowest. Second, in the applicants’ opinion Mr Makarov would not have suffered any non-material damage since no measures restricting his freedom would have been applied to him and he would not have suffered any physical or psychological harm or damage to his reputation.

99      According to the case-law, the alleged harm must be a sufficiently direct consequence of the conduct complained of, which must be the determinant cause of the harm, whereas there is no obligation to make good every harmful consequence, even a remote one, of an unlawful situation (Joined Cases 64/76, 113/76, 167/78, 239/78, 27/79, 28/79 and 45/79 Dumortier frères and Others v Council [1979] ECR 3091, paragraph 21, and Case T-279/03 Galileo International Technology and Others v Commission [2006] ECR II-1291, paragraph 130 and the case-law cited).

100    Furthermore, during the examination of the causal link which must exist between the conduct of the Community institution which is complained of and the harm alleged by the person adversely affected, it is necessary to verify whether, at the risk of having to bear the damage himself, that person demonstrated reasonable diligence in avoiding or limiting the extent of the damage (see, to that effect, Case 169/73 Compagnie Continentale France v Council [1975] ECR 117, paragraphs 22 and 23, Mulder and Others v Council and Commission, cited in paragraph 35 above, paragraph 33, and Fresh Marine v Commission, cited in paragraph 45 above, paragraph 121).

101    Consequently, even if the conduct alleged against the Community institution contributed to bringing about the harm alleged, that causal link may be broken by negligence on the part of the person adversely affected, where that negligence proves to be the determinant cause of the damage.

102    Furthermore, the Court of Justice has held that, if the alleged harm had its immediate origin in measures adopted by the national authorities, the Community cannot incur liability where it is not the position adopted by the Commission, but simply the decision of the national body ratifying it, which may be regarded as having caused damage to the applicant (see, to that effect, Case 133/79 Sucrimex and Westzucker v Commission [1980] ECR 1299, paragraph 23).

103    Finally, the burden of proving the existence of a causal link between the conduct complained of and the harm alleged falls on the applicant (see Case T‑149/96 Coldiretti and Others v Council and Commission [1998] ECR II‑3841, paragraph 101 and the case-law cited).

104    As a preliminary point it must be observed that, on the one hand, the applicants assert that, as is clear from the preamble to the settlement agreement and the order of the Landgericht Kleve of 2 May 2005, the question whether or not they deliberately classified their imports incorrectly has not been resolved by the national authorities and courts and, on the other hand, that issue is irrelevant in the present case.

105    Furthermore, the applicants put forward a contradictory line of argument as to whether or not the customs authorities were wrong to impose anti-dumping duties on them pursuant to the definitive regulation, having regard to the nature of their imports. On several occasions the applicants submit in their pleadings that ‘[f]rom the facts and evidence available, it does not seem that the German authorities ever committed a mistake in the classification of the [imported] tubes’ or that ‘the German authorities correctly applied the [definitive] regulation’ and, therefore, their imports came within the scope of the definitive regulation. However, they also submit in their pleadings that their imports should not have been subject to anti-dumping duties or that, although the German customs authorities took the view that their imports ‘should have been classified as non-threaded and non-threadable tubes’, they are of the contrary opinion that their imports ‘were to be classified as threaded and/or threadable’.

106    It is also clear from the evidence provided by the applicants that they argued before the German national authorities that the latter had made an error in the classification of their imports. The applicants also acknowledge that ‘[t]he classification issue, as the facts evidence, was indeed difficult’, but that, taking account of the expert opinions that they had received prior to the importation of their goods’, ‘the applicants had already evidence that their classification [of their own imports] was correct’.

107    In the light of the foregoing, the Court considers it appropriate to examine whether a sufficiently direct causal link exists between the alleged wrongful conduct of the Council and Commission and the alleged damage, both in the case where the definitive regulation does not cover their imports and vice versa.

108    In the first place, if the definitive regulation does not cover the applicants’ imports and they have not therefore incorrectly classified them, it would then have to be held that the damage alleged by the applicants is attributable to the German customs authorities alone inasmuch as the latter imposed anti-dumping duties on those imports even though they did not come within the scope of the definitive regulation.

109    In so far as the applicants claim compensation, first, for material damage resulting from the fact that Trubowest had to cease trading by reason of the post-clearance imposition of anti-dumping duties provided for by the definitive regulation and that Mr Makarov no longer received his salary in those circumstances and, second, for the non-material damage that Mr Makarov suffered because of the measures taken by the customs authorities against him on the ground that the applicants had not paid those duties, it must therefore be stated that the alleged damage resulted directly, not from the alleged wrongful conduct of the Council and the Commission committed when the definitive regulation was adopted, but from the fact that the German customs authorities wrongly took the view that the applicants were liable for the anti-dumping duties under the definitive regulation and that the measures which were taken both by the customs authorities and by the prosecuting authorities against the applicants were unjustified.

110    Therefore, in such a case, it would have to be held that the Community cannot incur liability in so far as the alleged damage is attributable exclusively to the German customs and prosecuting authorities and not to the alleged wrongful conduct on the part of the Council and the Commission.

111    The arguments put forward by the applicants in that regard cannot be accepted.

112    First of all, with regard to the applicants’ argument that the question whether their imports came within the scope of the definitive regulation is not relevant in the present proceedings inasmuch as, had it not been for the wrongful conduct on the part of the Council and the Commission, it is possible that the definitive regulation would not have been adopted or would have been different, it must be noted that the applicants are in fact positing a conception of the causal link which differs from that prevailing in Community law. That argument is based on the assumption that it is sufficient for the existence of such a link to state, as the applicants claim, that ‘if the Commission and the Council had acted properly, the damage would not have been sustained’, or again that ‘[i]f the illegal act had not existed, the outcome of events would have been different’.

113    Such a broad conception of the causal link does not correspond to that deriving from the case-law cited in paragraphs 99 and 102 above, which excludes, in particular, the possibility that the Community may incur liability for damage which is directly caused by the alleged wrongful conduct of a third party, that is to say, in this case, the possible error by the German customs authorities in imposing anti-dumping duties on the applicants’ imports and the possible error by the German prosecuting authorities in imposing measures in restraint of Mr Makarov’s freedom, but which are merely a remote consequence of the alleged wrongful conduct of the Council and the Commission.

114    Next, as regards the applicants’ argument that the error of the German customs authorities gives rise to liability on the part of the Community in so far as those authorities did not have any margin of discretion when applying the definitive regulation and the applicants would not have obtained appropriate compensation before the national court, it must be recalled that, according to settled case-law, the question of compensation by a national body for damage caused to private individuals by the bodies and servants of Member States, either by reason of an infringement of Community law or by an act or omission contrary to national law, in the application of Community law does not come within Article 288 EC and must be determined by the national courts in accordance with the national law of the Member State concerned (Case 101/78 Granaria [1979] ECR 623). In the present case, it must therefore be stated that the Court cannot have jurisdiction, and the Community cannot incur liability, by reason of the consequences of an error which the German customs may have committed in holding that Trubowest’s imports came within the scope of the definitive regulation.

115    Lastly, there is no basis to the argument raised by the applicants at the hearing, in answer to the questions from the Court, that, in substance, the national authorities are not solely responsible for an error in the classification of their imports, inasmuch as the Commission was aware of the dispute involving the applicants and the Council could have clarified the scope of the definitive regulation. As is clear from the case-law cited in paragraph 44 above, disputes relating to the collection of anti-dumping duties on behalf of the Community fall within the jurisdiction of the national courts and must be decided in review procedures put in place by the Member State concerned in accordance with the principles laid down in Articles 243 to 246 of the CCC. Consequently, the fact that the Council and the Commission were aware of the existence of the dispute concerning the recovery of the anti-dumping duties imposed on the applicants has no bearing on the finding that the applicants could have sought compensation for any potential classification errors that the customs authorities may have committed only before the national courts.

116    In the second place, if one assumes that the definitive regulation covered the applicants’ imports and consequently that they incorrectly classified their imports, it would have to be held that it was their own conduct which was the determinant cause of the damage they allege, and not the alleged wrongful conduct of the Council and the Commission. If the applicants had correctly classified their imports and if they had paid the anti-dumping duties provided for by the definitive regulation when they began importing, first, Trubowest’s accounts would not have been seized and that company would not have had to face post-clearance payment of a cumulative amount of anti-dumping duties such that it was entirely unable to continue trading. Second, Mr Makarov would not have been the subject of coercive measures or prosecution by the German national authorities which, according to the applicants, adversely affected his physical and psychological well-being and his reputation.

117    Therefore, in such a case, it would have to be held that the Community could not incur liability.

118    The applicants’ arguments in that regard cannot alter that finding.

119    First, it must be noted that the argument that there is no evidence that the applicants deliberately classified their imports incorrectly in order to avoid payment of the anti-dumping duties is invalid inasmuch as the determinant cause of the damage which they incurred arose from their own conduct, whether or not it was deliberate.

120    Second, the applicants’ argument that the causal link between the alleged wrongful conduct by the Council and the Commission and the damage suffered by the applicants was not broken through their own conduct inasmuch as they had no reason to suspect that their classification of the imports was incorrect must be rejected.

121    Even if the Council and the Commission acted wrongfully when the definitive regulation was adopted, by failing to take account of the existence of the cartel, that alleged wrongful conduct cannot be regarded as being the determinant cause of the damage alleged by the applicants, which would have resulted in that case from the customs and criminal measures taken by the German authorities in order to apply the definitive regulation and which would thus have been disproportionate, given the diligence shown by the applicants, and which would have formed the source of their material and non-material damage. If the applicants should not have been suspected of having deliberately attempted to avoid payment of their anti-dumping duties, they should not then have been the subject of the coercive customs and criminal measures which gave rise to the damage in respect of which they claim compensation.

122    The Court finds that, in the latter case, even if the alleged wrongful conduct of the Council and the Commission could be regarded as having contributed to the damage alleged, it would, in any event, have to be held that that causal link was broken by the conduct of the applicants, who failed to demonstrate, given the circumstances of this case, reasonable diligence in order to avoid that damage, in accordance with the case-law cited in paragraph 100 above.

123    In that connection, it must be recalled, first of all, that, according to settled case-law, if the trader concerned has doubts as to the correctness of the tariff classification of the goods in question, he must make inquiries and seek the greatest clarification possible in order to ascertain whether or not his doubts are well founded (Case C-64/89 Deutsche Fernsprecher [1990] ECR I-2535, paragraph 22; Case C-250/91 Hewlett Packard France [1993] ECR I-1819, paragraph 24, and Case C-156/00 Netherlands v Commission [2003] ECR I-2527, paragraph 99).

124    It should be noted that the CCC lays down a specific procedure enabling an importer to satisfy himself that the tariff classification of his imports is correct, thereby conferring on him legal certainty as to the correctness of that classification. Article 12(1) of the CCC provides that ‘[t]he customs authorities shall issue binding tariff information … on written request, acting in accordance with the committee procedure’. Article 12(2) of the CCC further states that ‘[b]inding tariff information … shall be binding on the customs authorities as against the holder of the information only in respect of the tariff classification … of goods’ and that ‘[b]inding tariff information … shall be binding on the customs authorities only in respect of goods on which customs formalities are completed after the date on which the information was supplied by them’. Finally, Article 12(3) of the CCC states that ‘[t]he holder of such information must be able to prove that … the goods declared correspond in every respect to those described in the information.’

125    In the present case, first, it is not disputed that Mr Makarov, who, as the applicants state in their pleadings, had since 1982 been the director of a company engaged in importing seamless tubes and pipes from Russia into Germany, was an experienced and knowledgeable trader in this field.

126    Second, it must be noted that there is no basis for the applicants’ claim that, before they commenced importing their goods, they had no reason to suspect that those imports might come within the scope of the definitive regulation. First of all, that claim by the applicants contradicts their assertion that ‘[t]he classification issue was unclear and difficult’.

127    Furthermore, it is evident from the documents provided by the applicants that the classification of Truboimpex’s imports, at least a portion of which had been classified under the same code as those of Trubowest, had given rise to doubts as to its correctness from 1997 at the latest. It is clear, first of all, from an annex to the reply that, on 27 June 1997, Truboimpex had submitted to the Commission, inter alia on its own behalf, a price undertaking relating to its imports of certain tubes and pipes in the context of the anti-dumping proceedings. Next, it appears from another annex to the reply that, according to the applicants, Truboimpex’s authorised agent, who subsequently became Trubowest’s authorised agent, asked a customs agent in 1996 or 1997 to ‘clarify’ whether or not Truboimpex’s imports, which had been classified under the same code as those of Trubowest, came within the scope of the definitive regulation. Finally, it follows from the non-binding opinion of 13 August 1998 from the Oberfinanzdirektion Cottbus, concerning the imports of pipes by Truboimpex, that Mr Makarov had had doubts as to the classification of Truboimpex’s imports, which had been classified under the same code as those of Trubowest.

128    Third, given Mr Makarov’s doubts as to the correctness of the classification of Truboimpex’s imports, which corresponded, at least in part, to those of Trubowest, it must be held that the applicants failed in their obligation, prior to or during the period between January 1999 and October 1999 in which Trubowest was engaged in importing, to seek all the clarifications possible in order to determine whether or not their doubts were well founded, inasmuch as they had not requested a binding tariff information under Article 12 of the CCC. Only a binding tariff information would have enabled them to be certain that Trubowest’s imports had been correctly classified and, therefore, to avoid any foreseeable customs or criminal penalties in the event of incorrect classification, this being a matter of which an experienced and knowledgeable trader such as Mr Makarov could not have been unaware.

129    The applicants’ arguments that they had no reason to doubt the correctness of the classification of their imports on the basis of the information available to them cannot be accepted.

130    In that connection, it must be stated, first of all, that the applicants contradict themselves when they state, on the one hand, that ‘[t]he applicants would have asked for such binding tariff information, if they were not sure about the correctness of their classification of the tubes as tubes not subject to anti-dumping duties’ and, on the other hand, that they requested various non-binding opinions as to whether their classification of Truboimpex’s imports was correct.

131    Next, it must be held that, for the purpose of establishing that they acted diligently in order to determine whether their classification was correct, the applicants cannot rely on an opinion issued by the Russian customs authority on 2 November 1999, that is, after Trubowest had ceased its imports, and by an authority which is, moreover, not competent to rule on the correctness of the classification of their imports under Community law. For the same reasons, the applicants cannot rely on an opinion ostensibly issued in March 2001 by the World Customs Organisation, according to which the classification of their imports was correct and which is mentioned in a letter from the Permanent Representation of the Russian Federation to the European Union.

132    Furthermore, it must be observed that none of the other opinions on which the applicants claim to have relied in support of their submission that there was no doubt as to the correctness of their classification was binding and none can be regarded as offering the clarifications necessary, given the doubts which they had. First, it must be noted that the investigation report of 20 February 1998 produced by the Hauptzollamt Köln-West does not indicate, as the applicants appear to claim in their reply, that the customs authorities took the view that the classification of Truboimpex’s imports was correct, since that investigation was intended to check the level of the declared transport costs and had no binding effect. Next, it must be pointed out that, although the opinion issued by the Oberfinanzdirektion Cottbus on 5 August 1998 and the declaration of Truboimpex’s authorised agent that a customs agent had confirmed to them that the classification of Truboimpex’s imports was correct constituted information capable of providing some guidance to the applicants as to the correctness of that classification, such opinions did not, however, given the foreseeable consequences that a classification error might have, provide the legal certainty that an experienced and knowledgeable trader such as Mr Makarov should have sought before Trubowest began trading.

133    It must therefore be held that, even if it were to be found that the alleged wrongful conduct on the part of the Council and the Commission did contribute to the damage alleged, the causal link between that alleged wrongful conduct and the damage alleged was broken by the conduct of the applicants, who, having regard to the circumstances of the case, failed to demonstrate reasonable diligence in order to avoid that damage.

134    Consequently, in any event, that is to say, whether or not Trubowest’s imports come within the scope of the definitive regulation or whether or not the applicants made a classification error, the causal link existing between the alleged wrongful conduct alleged against the Council and the Commission and the damage alleged cannot be regarded as having been sufficiently direct.

135    For the reasons mentioned above, the applicants’ claims for compensation in respect of the alleged material and non-material damage must be dismissed as unfounded. As the conditions for establishing non-contractual liability on the part of the Community are cumulative, there is no need to examine whether the other conditions laid down by the case-law have been satisfied.

136    Furthermore, as no compensation for the alleged damage can be awarded to the applicants, it is also necessary to dismiss their claims for default interest in that regard.

137    It follows from all of the foregoing that the present action must be dismissed as being partly inadmissible and partly unfounded.

 Measures of organisation of procedure

138    The applicants request the Court, by way of measures of organisation of procedure, should it take the view that the issue of the classification of Trubowest’s imports is relevant, to order the Commission to produce the evidence of its participation in the negotiations relating to the dispute on classification which led to the settlement agreement and all correspondence that it exchanged with the customs authorities and the Russian Government.

139    In that connection, it must be held that, as to the issue of admissibility of the present action regarding the claims for compensation in respect of the anti-dumping duties and the lawyers’ fees incurred in the domestic proceedings, the measure of organisation sought cannot alter the finding, set out in paragraphs 48 and 80 above, that the Court does not have jurisdiction to adjudicate on such claims for compensation.

140    Furthermore, it must be observed that the question of whether or not the Commission participated in the negotiations which led to the conclusion of the settlement agreement has no bearing on the finding, set out in paragraph 134 above, that, in any event, there is no sufficiently direct causal link between the alleged wrongful conduct of the Council and the Commission and the material and non-material damage alleged by the applicants such as to give rise to non-contractual liability on the part of the Community.

141    The Court accordingly takes the view that the present request should not be granted.

 Costs

142    Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicants have been unsuccessful, they must be ordered to pay the costs, in accordance with the forms of order sought by the Council and the Commission.

On those grounds,

THE COURT OF FIRST INSTANCE (Third Chamber)

hereby:

1.      Dismisses the action;

2.      Orders Trubowest Handel GmbH and Victor Makarov to pay, in addition to their own costs, the costs incurred by the Council and the Commission.

Jaeger

Tiili

Czúcz

Delivered in open court in Luxembourg on 9 July 2008.

E. Coulon

 

      M. Jaeger

Registrar

 

      President

Table of contents


Background to the dispute

Procedure and forms of order sought

Admissibility

I – Preliminary observations

II – Admissibility of the claims for compensation in respect of the anti-dumping duties paid

A – Arguments of the parties

B – Findings of the Court

III – Admissibility of the claim for compensation in respect of the lawyers’ fees incurred in domestic proceedings

A – Arguments of the parties

B – Findings of the Court

Substance

I – Preliminary observations

II – The causal link between the alleged wrongful conduct of the Council and the Commission and the alleged damage

A – Arguments of the parties

B – Findings of the Court

Measures of organisation of procedure

Costs


* Language of the case: English.