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Language of document : ECLI:EU:T:2000:21

JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber,Extended Composition)

27 January 2000 (1)

((Antidumping proceeding Consumer association Refusal of recognition asan interested party Agreement on implementation of Article VI of GATT1994 Articles 6(7) and 21 of Regulation (EC) No 384/96)

In Case T-256/97,

Bureau Européen des Unions de Consommateurs (BEUC), an internationalassociation constituted under Belgian law, established in Brussels, represented byBernard O'Connor, Solicitor, and Bonifacio García Porras, of the Bar ofSalamanca, with an address for service in Luxembourg at the Chambers of ArsèneKronshagen, 22 Rue Marie-Adélaïde,

applicant,

United Kingdom of Great Britain and Northern Ireland, represented by MichelleEwing, of the Treasury Solicitor's Department, acting as Agent, and DavidAnderson, of the Bar of England and Wales, with an address for service inLuxembourg at the British Embassy, 14 Boulevard Roosevelt,

intervener,

Commission of the European Communities, represented by Viktor Kreuschitz,Legal Adviser, and Nicholas Khan, of its Legal Service, acting as Agents, with an

address for service in Luxembourg at the office of Carlos Gómez de la Cruz, of itsLegal Service, Wagner Centre, Kirchberg,

defendant,

THE COURT OF FIRST INSTANCE

OF THE EUROPEAN COMMUNITIES (Fifth Chamber, ExtendedComposition),

composed of: J.D. Cooke, President, R. García-Valdecasas, P. Lindh, J. Pirrung andM. Vilaras, Judges,

Registrar: A. Mair,

having regard to the written procedure and further to the hearing on 23 March1999,

gives the following

Judgment

Legislative context

1.

Article 5(10) of Council Regulation (EC) No 384/96 of 22 December 1995 onprotection against dumped imports from countries not members of the EuropeanCommunity (OJ 1996 L 56, p. 1, hereinafter 'the Basic Regulation) provides:

'The notice of initiation of the proceedings shall announce the initiation of aninvestigation, indicate the product and countries concerned, give a summary of theinformation received, and provide that all relevant information is to becommunicated to the Commission; it shall state the periods within which interestedparties may make themselves known, present their views in writing and submit

information if such views and information are to be taken into account during theinvestigation; it shall also state the period within which interested parties may applyto be heard by the Commission in accordance with Article 6(5).

2.

Article 6(6) of the Basic Regulation states:

'Opportunities shall, on request, be provided for the importers, exporters,representatives of the government of the exporting country and the complainants,which have made themselves known in accordance with Article 5(10), to meet thoseparties with adverse interests, so that opposing views may be presented and rebuttalarguments offered. Provision of such opportunities must take account of the needto preserve confidentiality and of the convenience to the parties. There shall be noobligation on any party to attend a meeting, and failure to do so shall not beprejudicial to that party's case. Oral information provided under this paragraphshall be taken into account in so far as it is subsequently confirmed in writing.

3.

Under Article 6(7):

'The complainants, importers and exporters and their representative associations,users and consumer organisations, which have made themselves known inaccordance with Article 5(10), as well as the representatives of the exportingcountry may, upon written request, inspect all information made available by anyparty to an investigation, as distinct from internal documents prepared by theauthorities of the Community or its Member States, which is relevant to thepresentation of their cases and not confidential within the meaning of Article 19,and that it is used in the investigation. Such parties may respond to suchinformation and their comments shall be taken into consideration, wherever theyare sufficiently substantiated in the response.

4.

Article 21(1) and (2) provides:

'1. A determination as to whether the Community interest calls for interventionshall be based on an appreciation of all the various interests taken as a whole,including the interests of the domestic industry and users and consumers; and adetermination pursuant to this Article shall only be made where all parties havebeen given the opportunity to make their views known pursuant to paragraph 2. Insuch an examination, the need to eliminate the trade distorting effects of injuriousdumping and to restore effective competition shall be given special consideration.Measures, as determined on the basis of the dumping and injury found, may notbe applied where the authorities, on the basis of all the information submitted, canclearly conclude that it is not in the Community interest to apply such measures.

2. In order to provide a sound basis on which the authorities can take account ofall views and information in the decision as to whether or not the imposition ofmeasures is in the Community interest, the complainants, importers and their

representative associations, representative users and representative consumerorganisations may, within the time-limits specified in the notice of initiation of theanti-dumping investigation, make themselves known and provide information to theCommission. Such information, or appropriate summaries thereof, shall be madeavailable to the other parties specified in this Article, and they shall be entitled torespond to such information.

5.

The Agreement on Implementation of Article VI of the General Agreement onTariffs and Trade (GATT) 1994 (OJ 1994 L 336, p. 103, hereinafter 'theAntidumping Code) appearing in Annex 1A to the Agreement establishing theWorld Trade Organisation (WTO), the successor to the GATT (OJ 1994 L 336, p.3, hereinafter 'the WTO Agreement), approved by Council Decision 94/800/ECof 22 December 1994 concerning the conclusion on behalf of the EuropeanCommunity, as regards matters within its competence, of the agreements reachedin the Uruguay Round multilateral negotiations (1986-1994) (OJ 1994 L 336, p. 1) provides, in Article 6.11 and 6.12:

'6.11 For the purposes of this Agreement, interested parties shall include:

(i) an exporter or foreign producer or the importer of a product subject toinvestigation, or a trade or business association a majority of the membersof which are producers, exporters or importers of such product;

(ii) the government of the exporting Member; and

(iii) a producer of the like product in the importing Member or a trade andbusiness association a majority of the members of which produce the likeproduct in the territory of the importing Member.

This list shall not preclude Members from allowing domestic or foreign partiesother than those mentioned above to be included as interested parties.

6.12 The authorities shall provide opportunities for industrial users of the productunder investigation, and for representative consumer organisations in cases wherethe product is commonly sold at the retail level, to provide information which isrelevant to the investigation regarding dumping, injury and causality.

Facts

6.

The Bureau Européen des Unions de Consommateurs (hereinafter 'BEUC) is aninternational association established under Belgian law which represents atCommunity level the national consumer organisations established in the MemberStates and other European countries.

7.

On 11 July 1997, the Commission gave notice of the initiation of an antidumpingproceeding (No 97/C 210/09) concerning importations of unbleached cotton fabricsoriginating in the People's Republic of China, Egypt, India, Indonesia, Pakistan andTurkey (OJ 1997 C 210, p. 12, hereinafter 'the initiation notice), following acomplaint lodged on 26 May 1997 pursuant to Article 5 of the Basic Regulation bythe Committee of the Cotton and Allied Textile Industries of the European Union(Eurocoton).

8.

In accordance with Article 5(10) of the Basic Regulation, the initiation noticeprescribed the period within which interested parties might make themselvesknown, present their views in writing and submit information to be taken intoaccount during the investigation. It also fixed the time within which interestedparties could apply to be heard by the Commission pursuant to Article 6(5) of theBasic Regulation.

9.

By letter sent to the Commission on 15 July 1997, BEUC asked to be recognisedas an interested party and to be furnished with the copy of the complaint and theinformation made available by all other parties concerned in the investigation tothe extent that these were not confidential in the sense contemplated by Article6(7) and Article 19 of the Basic Regulation.

10.

By letter of 18 July 1997 from Directorate E (Antidumping strategy; Injury andCommunity interest aspects; other instruments of external economic policy andgeneral questions) of the Directorate-General for External Relations: commercialpolicy, relations with North America, the Far East, Australia and New Zealand(DG I) (hereinafter 'the contested decision), the Commission replied as follows:

'In line with the general position of the Commission, which is well known toBEUC, I would [...] point out that unbleached cotton fabrics cannot be consideredas a product commonly sold at retail level, i.e. not a product for which BEUCwould be considered as an interested party under Articles 5(10), 6(7) and 21 of ...Regulation No 384/96 ...

Therefore I must inform you that we are unable to accommodate your requests forthe transmission of the complaint and for access to the non-confidential files.

11.

In referring to its 'general position ... which is well known to BEUC, theCommission was alluding to a previous exchange of correspondence, in particularto a decision contained in a letter of 3 February 1997 which was the subject of anaction for annulment brought by the applicant (see the order of the Court of FirstInstance of 4 May 1998 in Case T-84/97 BEUC v Commission [1998] ECR II-795,paragraphs 53 to 55).

12.

In that letter, which concerned an antidumping proceeding initiated on 21 February1996, the Commission had refused to recognise BEUC as an interested party and

to allow it access to non-confidential documents on two grounds. According to theCommission:

(i) BEUC could not be considered an interested party on the basis of theGATT Antidumping Code. In particular the Commission pointed out thatin Article 6.12 of the Code 'it is clearly stated that representative consumerorganisations can have opportunities to provide information on dumping,injury and causality in cases where the product is commonly sold at theretail level. This is not the case in the present proceeding, because greycotton fabrics are not normally sold at the retail level; and

(ii) BEUC could not be considered an interested party on the basis ofRegulation No 384/96. In particular, the Commission stated: 'Furthermore,you point out that the Community legislation allows for representativeconsumer organisations to participate in antidumping proceedings asdescribed in Article 21(2) of Regulation ... No 384/96... However, in thiscase, the like product is an intermediate semi-processed product which isnot commonly sold at the retail level and consumers are not the users ofthis product.

13.

On 7 April 1998 the Commission adopted Regulation (EC) No 773/98 imposing aprovisional antidumping duty on imports of unbleached cotton fabrics originatingin the People's Republic of China, Egypt, India, Indonesia, Pakistan and Turkey(OJ 1998 L 111, p. 19) (hereinafter 'the Provisional Regulation).

14.

As provided by Article 4, the Provisional Regulation entered into force on 10 April1998 and was to apply for a period of six months. Since no regulation imposing adefinitive antidumping duty was adopted by the Council within the period of 15months following the initiation of the investigation, as provided for in Article 6(9)of the Basic Regulation, the Provisional Regulation lapsed on 10 October 1998.

Procedure and forms of order sought

15.

By application lodged at the Registry of the Court of First Instance on 19September 1997, the applicant brought the present action.

16.

By order of the President of the Fourth Chamber, Extended Composition, of theCourt of First Instance of 25 May 1998, the United Kingdom of Great Britain andNorthern Ireland was given leave to intervene in the case in support of theapplicant.

17.

By separate document lodged at the Registry of the Court of First Instance on4 November 1998, the Commission sought a ruling, pursuant to Article 114 of theRules of Procedure of the Court of First Instance, that there was no need toadjudicate on the action.

18.

The applicant lodged observations on that request on 20 November 1998. By letterof 19 November 1998 the United Kingdom indicated that it had no observation tomake on that request.

19.

By order of 1 February 1999 in Case T-256/97 BEUC v Commission [1999] ECRII-169, the Court of First Instance (Fifth Chamber, Extended Composition) refusedthat request and reserved the costs.

20.

Upon hearing the report of the Judge Rapporteur, the Court of First Instance(Fifth Chamber, Extended Composition) decided to open the oral procedurewithout any preparatory inquiry.

21.

The parties presented oral argument and replied to the Court's questions at thehearing on 23 March 1999.

22.

BEUC claims that the Court should:

declare the application admissible;

declare the contested decision void in so far as it refuses to consider theapplicant an interested party;

declare the contested decision void in so far as it also refuses to allow theapplicant and other consumer organisations to have access to the non-confidential information made available in antidumping proceedings dealingwith products not commonly sold at retail level;

make any additional orders which the Court considers necessary; and

order the Commission to pay the costs.

23.

The United Kingdom requests the Court to declare the contested decision void.

24.

The Commission claims that the Court should:

dismiss the application as inadmissible as regards the applicant's claim forthe annulment of the contested decision in so far as it refuses the applicantand other consumer organisations access to the non-confidential informationmade available in antidumping proceedings dealing with products notcommonly sold at retail level;

dismiss the remainder of the application as unfounded; and

order the applicant to pay the costs.

Admissibility

Arguments of the parties

25.

The Commission contends that BEUC's application for the annulment of thecontested decision in so far as it refuses to allow the applicant and other consumerorganisations to have access to the non-confidential information made available inantidumping proceedings dealing with products not commonly sold at retail levelis inadmissible. It states that, under Article 173 of the EC Treaty (now, afteramendment, Article 230 EC), the Court of First Instance has jurisdiction to reviewthe legality of acts of the institutions but may not examine the legality of situationswhich may only hypothetically arise. It also follows from the rules governing thelocus standi of natural and legal persons that such a claim put forward by theapplicant on behalf of other parties is inadmissible.

26.

BEUC claims that the contested decision raises the question whether consumerorganisations may, generally, be regarded as interested parties. The contesteddecision directly affects both its interests and those of other consumerorganisations, not only in the context of the antidumping proceeding in question butalso in the context of any proceeding concerning products which are not commonlysold at the retail level which might be initiated in the future. As the representativeof the main consumer associations in all the Member States it has a special interestin the protection of their rights. It does not seek to claim relief on behalf of othersbut to draw the Court's attention to a situation which could materialise in thefuture and which could be avoided if the contested decision were annulled to theextent requested.

Findings of the Court

27.

Under the main claim in the form of order sought (see the second indent ofparagraph 22 above), the applicant seeks the annulment of the contested decisionin so far as it refuses to consider the applicant an interested party within themeaning of Article 5(10) of the Basic Regulation.

28.

The object of the second part of its claim for annulment (see the third indent ofparagraph 22 above) is twofold.

29.

First, the applicant seeks to have the decision annulled by the Court in so far as itrefuses to allow the applicant itself to inspect non-confidential information madeavailable in antidumping proceedings dealing with products not commonly sold atretail level.

30.

Secondly, by means of a broader interpretation of the contested decision it alsoseeks to obtain from the Court a decision of wider import, aimed at requiring theCommission to alter its policy on the matter for the future, so that any consumer

association could have access to non-confidential documents available in anyantidumping proceeding dealing with products not commonly sold at retail level.

31.

That second part of the claim for annulment must be dismissed as inadmissible.

32.

In so far as it concerns the alleged refusal to allow the applicant itself to inspectnon-confidential information, that part of the claim adds nothing to the main claim.The right of access to non-confidential information pursuant to Article 6(7) of theBasic Regulation is linked to the status of an interested party which has made itselfknown in accordance with Article 5(10) of that regulation.

33.

As regards the second aspect of that part of the claim, it is settled case-law that theadmissibility of an action for annulment must be assessed having regard to theapplicant's interest in bringing proceedings at the time when the application waslodged. That interest cannot be assessed on the basis of a future, hypothetical event(Case T-16/96 Cityflyer Express v Commission [1998] ECR II-757, paragraph 30).Moreover, the admissibility of an action for annulment brought by a natural or legalperson is dependent upon the condition that the person concerned demonstrate apersonal interest in the annulment of the contested decision (see order in CaseT-278/98 Unione Provinciale degli Agricoltori di Firenze and Others v Commission[1999] ECR II-0000, paragraph 30).

34.

On the one hand, this second aspect of the form of order sought, in so far as itseeks a ruling from the Court of First Instance on the rights of consumerassociations other than BEUC, involves the interest of unidentified third partiesrather than the applicant's own interest in bringing proceedings. On the other hand,in so far as it seeks a ruling from the Court on rights in relation to antidumpingproceedings that have not yet been commenced, it is based on future andhypothetical events.

35.

Moreover, that second aspect of that part of the claim is, in any event, superfluous.It is settled case-law that the institution concerned is obliged to take the necessarymeasures, pursuant to Article 176 of the EC Treaty (now Article 233 EC), tocomply with a judgment given in an action for annulment (Case T-43/92 DunlopSlazenger v Commission [1994] ECR II-441, paragraph 18, and Case T-548/93Ladbroke Racing v Commission [1995] ECR II-2565, paragraph 54).

36.

It follows from the foregoing observations that the second part of the claim forannulment must be dismissed as inadmissible.

Substance

37.

In support of its application BEUC raises a single plea in law, alleging breach ofArticles 6(7) and 21 of the Basic Regulation. It claims that the Commission on the

one hand misinterpreted the relevant provisions of the Basic Regulation and, onthe other hand, wrongly relied on the Antidumping Code.

Arguments of the parties

Interpretation of Articles 6(7) and 21 of the Basic Regulation

38.

BEUC points out that the Commission refused to recognise it as an interestedparty in the antidumping proceeding in question on the sole ground that theproceeding concerned products not commonly sold at retail level.

39.

The Commission's approach manifestly disregards the wording of the relevantprovisions of the Basic Regulation and is therefore unlawful.

40.

The provisions of the Basic Regulation, in particular Articles 6(7) and 21(1) and(2) are clear and precise. They are cumulative and not exclusive. As the 13th recitalin the preamble to the Basic Regulation makes clear, the purpose of thoseprovisions is to define the persons who must be regarded as interested parties inantidumping proceedings and to set out the conditions under which they mayintervene/participate in the proceeding. Those provisions recognise consumerorganisations as having the right to make themselves known, inspect all non-confidential information presented by other interested parties in an antidumpingproceeding and to submit information, making no distinction in respect of thenature or type of product which is the subject-matter of the investigation.

41.

BEUC emphasises the fact that the Court of Justice itself has recognised theimportance of express recognition of a right by a Community measure of generalscope. In its judgment in Case C-170/89 BEUC v Commission [1991] ECR I-5709,paragraph 30, it refused to uphold BEUC's application for access to a non-confidential file in an antidumping proceeding, on the ground that there was noexpress provision in the basic regulation applicable at the time (Council Regulation(EEC) No 2423/88 of 11 July 1988 on protection against dumped or subsidisedimports from countries not members of the European Economic Community (OJ1988 L 209, p. 1, hereinafter 'Regulation No 2423/88)) granting such a right ofaccess to consumer organisations. The Court of Justice did, however, state that itwas for 'the Community legislature to consider whether the basic antidumpingregulation should grant an association representing the interests of consumers theright to consult the non-confidential file.

42.

In adopting the Basic Regulation, the Community legislature changed the previousposition in this regard and expressly acknowledged the right of consumerorganisations to make themselves known and to participate in the proceeding. Thelegislature could have added a restriction to the right of consumer organisations,by confining their entitlement to participate in the proceedings 'to cases where theproduct is commonly sold at the retail level for example. However, in so far as no

such restriction was provided for in the Basic Regulation, consumer organisationshave the right to make themselves known, to inspect all non-confidentialinformation presented by other interested parties in an antidumping investigationand to submit information.

43.

BEUC also claims that, contrary to the argument put forward by the Commisionthat the interests of consumers do not form part of the Community interest sinceBEUC is not in a position to provide information that is quantifiable andsufficiently in the Community interest as required by Article 21 of the BasicRegulation (see paragraph 52 below), consumers can have a substantial interest inparticipating in any proceeding concerning products not commonly sold at retaillevel.

44.

The alleged unreliability of the information that consumer associations may provideis not, in any event, an impediment to their right to be considered interestedparties. If the information or comments they submit in a given proceeding areneither relevant nor reliable the Commission can always disregard them.

45.

The United Kingdom Government supports BEUC's interpretation of Articles 6(7)and 21 of the Basic Regulation. Since there is no ambiguity in the wording ofArticle 6(7) of the Basic Regulation, consumer associations which have madethemselves known are entitled to the rights which are there set out. The fact thatthe rights are given both to users and to consumer associations demonstrates thatthe legislative intention was to accord the rights to the latter, even in circumstanceswhere consumers are not the users of the product concerned. The same is true ofthe wording of Article 21, which also employs the terms 'users and consumers inparagraph 1 and 'representative users and representative consumer organisationsin paragraph 2. That terminology makes it clear that the legislature envisagedsituations in which consumers would not be users of the product concerned butwould nevertheless have interests to defend.

46.

It denies that the price of unbleached cotton fabrics can only interest the applicant'in abstracto or that its interests relate only to 'other products. Although theinterest of consumers is admittedly indirect, in the sense that unbleached cottonfabric normally has to undergo further processes before being sold to the consumer,that interest is nevertheless entirely real and not abstract or philosophical as theCommission contends. The bearing of raw material costs on the price paid by theconsumer is a recognised phenomenon, as the Commission has itself accepted inother contexts. The ultimate purpose of antidumping duties is to protect not onlythe interests of Community industry but also those of consumers.

47.

The Commission points out, first, that the range of interested parties, whetherrepresentative of Community industry, of exporters or of importers, iscircumscribed by the scope of the proceeding. Accordingly, Article 4(1) of the BasicRegulation defines 'Community industry as referring to 'the Community

producers as a whole of the like products. It does not therefore recognise asinterested parties producers or importers of products other than the like product.Therefore, in refusing to recognise the applicant as representing consumers ofunbleached cotton fabric it is treating it no differently from other categories ofinterested parties.

48.

Consumer organisations are simply one of the categories enumerated in Article6(7) of the Basic Regulation. Each of those categories is to be interpreted ejusdemgeneris. Only organisations representing consumers of the product involved in theantidumping proceeding can be regarded as 'consumer organisations for thepurposes of that proceeding.

49.

It is a fundamental characteristic of administrative investigations conducted by theCommission in various areas that the right to participate in the investigationdepends on there being an objective link with the matter under investigation. Thescope of an antidumping investigation is defined by the nature of the productsunder investigation and, in the case of unbleached cotton fabric, there are noconsumers, only users.

50.

The Commission observes that the term 'representative in Article 21(2) of theBasic Regulation prefaces the references to associations of importers and users' andconsumer organisations. It is common practice in those investigations thatassociations of importers and users' organisations represent the interests of theirmembers, even if such parties constitute ad hoc associations whose sole purpose isto represent them in an antidumping investigation. Such associations do not havethe status of officially approved 'representative associations, but are accepted asinterlocutors by the Commission where they represent the interest in question inrelation to the product under investigation.

51.

The Basic Regulation applies to proceedings in respect of all types of productwhether sold at retail level or otherwise and in referring to 'users and'consumers it is simply taking account of the fact that, for example, although theapplicant may represent the interests of the private users of, say, audio cassettes,it is usual to describe such users as consumers. The use of different terms in theregulation for different types of users does not require that in every antidumpingproceeding the interested parties must necessarily include both users andconsumers.

52.

The Commission considers that its interpretation of the Basic Regulation is moreconsistent with the purpose of an antidumping investigation than that of theapplicant. The investigation is conducted within very strict deadlines and can onlyreach an informed conclusion if the Commission has at its disposal informationfrom reliable sources, that is to say, economic operators who are in a position tosubstantiate their arguments. Since the applicant does not represent consumers ofunbleached cotton fabric, it is not in a position to provide the Commission withquantifiable information that sufficiently reflects the Community interest as

required by Article 21, nor is it in a position to add to the information which theCommission receives from other interested parties.

53.

To accept the applicant's arguments would considerably expand the scope of anyantidumping investigation concerning a raw material. The grant of procedural rightsto the applicant would only make sense if the Commission was also obliged to takeits submissions into account as required by Article 21(5) of the Basic Regulation.The Commission claims that, in introducing references to consumer organisationsin the Basic Regulation, the Community legislature's intention was not to imposeon it an obligation, in the context of an investigation concerning a raw material, totake into consideration the possible effects of the measures on consumers of a vastrange of consumer goods manufactured from that raw material.

Interpretation of the Basic Regulation in the light of the Antidumping Code

54.

BEUC considers that the Commission has wrongly relied on the provisions of theAntidumping Code. It raises two arguments in this connection.

55.

First, according to well-established case-law, GATT Agreements do not have directeffect in Community law (Case C-280/93 Germany v Council [1994] ECR I-4973,paragraphs 103 to 111). The particular features of GATT preclude the Commissionfrom relying on the GATT rules to justify the lawfulness of a Community measure.

56.

In any event, even supposing that the validity of the decision could be examined inthe light of the GATT rules, it nevertheless remains manifestly unlawful.

57.

Article 6.11 of the Antidumping Code sets out a non-exhaustive list of interestedparties for the purposes of that agreement. The second paragraph clearly providesthat the list is not to preclude the contracting parties from allowing other partiesto be included as interested parties. If a Member were to exercise that prerogative,the newly defined parties would be interested parties and would have all the rightsand possibilities recognised in Article 6 of the Code with regard to all the aspectsof an antidumping proceeding (dumping, injury, causality) and not only thepossibilities provided in Article 6.12.

58.

In adopting Articles 5(10), 6(7) and 21 of the Basic Regulation, the Communitylegislature has made use of the possibility open to Members of the WTO torecognise consumer organisations as interested parties. Those articles correctlyimplement GATT rules, which allow consumer organisations access to non-confidential information in relation to all elements of the proceeding, includingdumping, injury and causality.

59.

The United Kingdom Government endorses the applicant's arguments in thisconnection. It sees no inconsistency between the Antidumping Code and the Basic

Regulation. The broad permission accorded to contracting parties by Article 6.11of the Antidumping Code is in no sense limited by Article 6.12. The latter requiresthe authorities to provide opportunities for the furnishing of certain information toindustrial users of the product under investigation, and for representative consumerorganisations in cases where the product is sold at the retail level. That obligationto recognise consumer organisations as having certain rights when a product is soldat the retail level is perfectly consistent with the fact that they may be accordedparticular rights even when a product is not sold by retail. That is precisely whatthe legislature has done in Articles 6(7) and 21 of the Basic Regulation.

60.

The Commission accepts that the Antidumping Code does not prevent moreextensive rights being granted by the Members. However, it points out that, in thewords of the fifth recital in the preamble to the Basic Regulation, the AntidumpingCode 'contains new and detailed rules, relating in particular to ... procedures forinitiating and pursuing an investigation ...; in view of the extent of the changes andto ensure a proper and transparent application of the new rules, the language ofthe new agreements should be brought into Community legislation as far aspossible. By signalling that the legislation has adopted the language of theAntidumping Code, the Community legislature has also signalled that where wordsare carried over from the GATT agreement into the Regulation, they should havethe same meaning in Community law as they do in the agreement.

61.

The Commission considers that the omission of the words 'in cases where theproduct is commonly sold at the retail level is insufficient reason to conclude thatthe Community intended that the definition of 'consumer organisations should bedifferent from that used in the Antidumping Code. That wording was unnecessarybecause the same restriction is achieved by the fact that only consumers of the likeproduct can consider themselves interested parties to a proceeding.

62.

The Commission notes that Article 6.12 of the Antidumping Code refers to'representative consumer organisations, as does Article 21 of the BasicRegulation. It submits that the applicant cannot be regarded as 'representativein this case, because the interests it represents are not those of consumers ofunbleached cotton fabric but are those of consumers of finished products derivedfrom unbleached cotton fabric.

Findings of the Court

63.

It is clear from the wording of the contested decision that the Commissionconsiders that BEUC cannot be regarded as being, in general terms, an interestedparty within the meaning of Articles 5(10), 6(7) and 21 of the Basic Regulation inantidumping proceedings concerning products not sold at the retail level.

64.

It is common ground that the origin of the distinction thus established by theCommission between products not sold at the retail level and other products is to

be found in the provisions of Article 6.12 of the Antidumping Code. The applicantclaims, nevertheless, that the provisions of the Basic Regulation cannot beinterpreted in the light of the provisions of that Code.

65.

It should first be noted, however, that in its judgment in Joined Cases 21/72 to24/72 International Fruit Company and Others v Produktschap voor Groenten en Fruit[1972] ECR 1219, at paragraph 18, the Court of Justice ruled that the provisionsof the General Agreement on Tariffs and Trade had the effect of binding theCommunity. The same conclusion must be reached both in the case of GATT 1994(OJ 1994 L 336, p. 11) and in the case of the 1994 Anti-Dumping Code (Case C-69/89 Nakajima v Council [1991] ECR I-2069, paragraph 29).

66.

Secondly, it is worth emphasising that the third point in the recital in the preambleto the Basic Regulation states that the latter was adopted 'to amend theCommunity rules in the light of the new Agreements concluded at the end of themultilateral trade negotiations of the Uruguay Round (1986-1994), including theAntidumping Code. Furthermore, the fifth recital in the preamble to that regulationstates that the Antidumping Code 'contains new and detailed rules, relating inparticular to the calculation of dumping, procedures for initiating and pursuing aninvestigation, including the establishment and treatment of the facts, the impositionof provisional measures, the imposition and collection of anti-dumping duties, theduration and review of anti-dumping measures and the public disclosure ofinformation relating to anti-dumping investigations, and that 'in view of the extentof the changes and to ensure a proper and transparent application of the new rules,the language of the new agreements should be brought into Community legislationas far as possible.

67.

It follows that the Commission is right to interpret the Basic Regulation in the lightof the Antidumping Code.

68.

In those circumstances, it is necessary to decide whether the Commission hascorrectly interpreted the provisions of international law, or indeed whether the waythe Regulation was interpreted in this case was really dictated by the provisions ofthe Code.

69.

Although it is true that Article 6.11 of the Antidumping Code does not includeorganisations representing consumers among 'interested parties, nevertheless thatprovision states that Members may also allow domestic or foreign parties otherthan those expressly mentioned to be included as interested parties. That optionis not subject to any restriction.

70.

Article 6.12 of the Antidumping Code states that the authorities are to provideopportunities for, inter alia, representative consumer organisations in cases wherethe product is commonly sold at the retail level to provide information which isrelevant to the investigation regarding dumping, injury and causality.

71.

As the Commission has recognised in its pleadings, the fact that it is notcompulsory for that opportunity to be provided for representative consumerorganisations, except where the product is commonly sold at retail level, in no way

requires the Community legislature to impose that condition if it decides to extendthe circle of 'interested parties to persons other than those expressly mentionedin Article 6.11 of the Antidumping Code, in particular to representative consumerorganisations.

72.

It follows in effect from the wording of the fifth recital in the preamble to the BasicRegulation that it was decided to transpose so far as possible the language of theAntidumping Code to the Community legislation in order to ensure a proper andtransparent application of the new rules. In that regard, it is clear that theCommunity legislature expressly decided not to adopt that distinction in connectionwith the rights granted to such organisations because the Community provisionsmake no distinction between products commonly sold at retail level and otherproducts.

73.

It does not therefore follow from the provisions of the Antidumping Code that theCommission was entitled to interpret the provisions of the Basic Regulation so asto confine the applicant's right to be considered an interested party solely toantidumping proceedings concerning products commonly sold at the retail level.

74.

The Commission contends, however, that the various interested parties aredetermined on the basis of the purpose of the proceeding and the products inquestion. It would not therefore recognise as interested parties, in an antidumpingproceeding concerning a specific product, producers or importers of products thatwere not like products.

75.

It must be noted that the Basic Regulation provides in Article 6(5) that, within thetime-limit specified in the notice of initiation of the anti-dumping investigation,interested parties may make themselves known, present their views in writing andsubmit information, if such views and information are to be taken into account inthe course of the investigation. In that regard the Court of First Instance considersthat, in order to be considered an interested party for the purposes of anantidumping proceeding, it is necessary to prove that there is an objective linkbetween the party's activities, on the one hand, and the product under investigation,on the other.

76.

It follows from the foregoing that the Commission does not have grounds forautomatically excluding consumer organisations from the circle of interested partiesby applying a general criterion such as the distinction between products sold at theretail level and other products. The Commission must decide on a case-by-casebasis whether a party should be considered an interested party in the light of theparticular circumstances of each case.

77.

Consequently the Commission cannot exclude consumer organisations from anantidumping proceeding without giving them an opportunity to show their interestin the product in question.

78.

That conclusion is reinforced by the fact that Council Regulation (EC) No 3283/94of 22 December 1994 on protection against dumped imports from countries notmembers of the European Community (OJ 1994 L 349, p. 1), which replacedRegulation No 2423/88, expressly introduced, for the first time, the possibility forconsumer organisations to make themselves known as interested parties in the sameterms as were employed in the Basic Regulation. It can therefore be stated that theCommunity legislature intended to allow the Commission to take into considerationthe information provided by such organisations. To that end Article 21(2) of theBasic Regulation provides that representative consumer organisations inter alia maymake themselves known and provide information, in order to provide a sound basison which the authorities can take account of all views and information in thedecision on whether or not the imposition of measures is in the Communityinterest. It should, however, be emphasised that the potential role of consumerorganisations is not restricted to that aspect of an antidumping proceeding but,under the terms of Article 6(7), also extends to all the other aspects of such aproceeding.

79.

In this case it is not disputed that the applicant is an association which representsat Community level the national consumer associations established in all theMember States and in other European countries. Thus it does not represent theinterests of a particular category of consumers but all consumers of goods andservices.

80.

The sole fact that those products are processed before being offered for sale to thepublic cannot, in itself, warrant the Commission's concluding that associationsrepresenting consumers who purchase processed products cannot have an interestin the results of the proceeding. Furthermore, if the adoption of antidumpingmeasures was to have an impact on the price of those processed products or on therange of products available, the observations of consumer associations in thatrespect could well be useful to the authorities.

81.

It is revealing, in this connection, that the Community authorities have alreadytaken the interests of the ultimate consumer into consideration in the context ofproceedings concerning intermediate products. Thus, in Regulation (EC) No2352/95 of 6 October 1995 imposing a provisional anti-dumping duty on imports ofcoumarin originating in the People's Republic of China (OJ 1995 L 239, p. 4), theCommission considered the possible consequences of a price increase of coumarinfollowing the imposition of an anti-dumping duty on the price of fragrancecompounds. It stated that 'the cost incidence of coumarin in relation to theproduction cost of a fragrance compound ... [did] not exceed a few percentagepoints at the most and that '[a]ccordingly, the effect of an increase in the price

of coumarin due to an anti-dumping duty on the production cost of most fragrancecompounds would be minimal. It concluded that 'the impact on the price of theend product, namely detergents, cosmetics and fine fragrances in which thefragrance compound is incorporated, would be entirely negligible. It follows that,even in the case of an intermediate product, it is quite possible that consumerorganisations could produce useful information concerning the impact of anantidumping duty on end products.

82.

The Commission's argument to the effect that a consumer organisation is not in aposition to provide useful information concerning products which are not commonlysold at the retail level cannot therefore be accepted. In any event, it is evident that,if the information provided in a specific case is not appropriate or useful, theCommission can always disregard it.

83.

The Court of First Instance considers that the Commission's argument that theterm 'consumer means simply a type of 'user is belied by the language ofArticles 6(7) and 21(2), which shows clearly that the legislature was envisagingsituations in which consumers would not be users of the product in question butwould nevertheless have interests that should be taken into consideration, as theUnited Kingdom Government points out.

84.

It follows from the foregoing that the Commission erred in its interpretation of theBasic Regulation when it decided that the applicant could not be considered aninterested party in an antidumping proceeding because the latter concerned aproduct not currently sold at the retail level.

85.

The contested decision must, in consequence, be annulled.

Costs

86.

Under Article 87(2) of the Rules of Procedure of the Court of First Instance, theunsuccessful party is to be ordered to pay the costs if they have been applied forin the successful party's pleadings. Since the applicant has applied for costs and theCommission has been unsuccessful, the Commission must be ordered to pay thecosts, including those incurred by its request for a ruling that there was no need toadjudicate. Under Article 87(4) of those Rules of Procedure, Member States whichhave intervened in the proceedings are to bear their own costs. Consequently, theUnited Kingdom, which has intervened in support of the form of order sought bythe applicant, must bear its own costs.

On those grounds,

THE COURT OF FIRST INSTANCE (Fifth Chamber, Extended Composition)

hereby:

1. Annuls the Commission's decision of 18 July 1997 refusing to recognise theapplicant as an interested party in the context of the antidumpingproceeding leading to the adoption of Commission Regulation (EC) No773/98 of 7 April 1998 imposing a provisional antidumping duty on importsof unbleached cotton fabrics originating in the People's Republic of China,Egypt, India, Indonesia, Pakistan and Turkey;

2. Dismisses the remainder of the application;

3. Orders the Commission to pay the costs, including those incurred by itsrequest for a ruling that there was no need to adjudicate;

4. Orders the United Kingdom of Great Britain and Northern Ireland to bearits own costs.

CookeGarcía-Valdecasas

Lindh

Pirrung

Vilaras

Delivered in open court in Luxembourg on 27 January 2000.

H. Jung

R. García-Valdecasas

Registrar

President

1: Language of the case: English.