Court of Justice of the European Communities (including Court of First Instance Decisions)

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APPLICATION FOR A DECLARATION THAT A MEASURE IS VOID - COUNCIL DECISION TERMINATING AN ANTI-DUMPING PROCEEDING - APPLICATION DIRECTED AGAINST THE COMMISSION - INADMISSIBLE
( EEC TREATY, ART . 173; COUNCIL REGULATION NO 2176/84, ART . 9; COUNCIL DECISION NO 86/59 )

WHERE, PURSUANT TO ARTICLE 9 OF REGULATION NO 2176/84, A DECISION TO TERMINATE AN ANTI-DUMPING PROCEEDING WAS TAKEN BY THE COUNCIL AND NOT BY THE COMMISSION FOLLOWING OBJECTIONS TO SUCH A DECISION RAISED BEFORE THE ADVISORY COMMITTEE PROVIDED FOR IN ARTICLE 6 ( 1 ) OF THE SAME REGULATION, AN APPLICATION FOR A DECLARATION THAT THAT DECISION IS VOID IS INADMISSIBLE IN SO FAR AS IT IS DIRECTED AGAINST THE COMMISSION .

IN CASE 129/86
THE HELLENIC REPUBLIC, REPRESENTED BY GIANNOS KRANIDIOTIS, SPECIAL AGENT AT THE MINISTRY OF FOREIGN AFFAIRS, ASSISTED BY STELIOS PERRAKIS, LEGAL ADVISER AT THE MINISTRY OF FOREIGN AFFAIRS, EUROPEAN COMMUNITIES DEPARTMENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE GREEK EMBASSY, 117 VAL SAINTE-CROIX,
APPLICANT,
V
COUNCIL OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ERIK STEIN, LEGAL ADVISER, AND CHRISTOS MAVRAKOS, A MEMBER OF THE COUNCIL' S LEGAL DEPARTMENT, BOTH ACTING AS AGENTS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF JOERG KAESER, EUROPEAN INVESTMENT BANK, 100 BOULEVARD K . ADENAUER,
AND
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY J . TEMPLE LANG AND DIMITRIOS GOULOUSSIS, LEGAL ADVISERS, BOTH ACTING AS AGENTS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF G . KREMLIS, A MEMBER OF THE COMMISSION' S LEGAL DEPARTMENT, JEAN MONNET BUILDING, KIRCHBERG,
DEFENDANTS,
APPLICATION FOR A DECLARATION THAT COUNCIL DECISION NO 86/59/EEC TERMINATING THE ANTI-DUMPING PROCEEDING CONCERNING IMPORTS OF DEAD-BURNED ( SINTERED ) NATURAL MAGNESITE ORIGINATING IN THE PEOPLE' S REPUBLIC OF CHINA AND NORTH KOREA AND ANY OTHER RELATED DECISION, PRIOR OR SUBSEQUENT, IS VOID,
THE COURT
COMPOSED OF : LORD MACKENZIE STUART, PRESIDENT, Y . GALMOT, C . KAKOURIS, T.*F . O' HIGGINS AND F . SCHOCKWEILER ( PRESIDENTS OF CHAMBERS ), G . BOSCO, T . KOOPMANS, O . DUE, U . EVERLING, K . BAHLMANN, R . JOLIET, J.*C . MOITINHO DE ALMEIDA AND G.*C . RODRIGUEZ IGLESIAS, JUDGES,
ADVOCATE GENERAL : SIR GORDON SLYNN
REGISTRAR : P . HEIM
AFTER HEARING THE VIEWS OF THE ADVOCATE GENERAL,
MAKES THE FOLLOWING
ORDER
FACTS AND ISSUES
BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 27 MAY 1986 THE HELLENIC REPUBLIC BROUGHT AN ACTION UNDER ARTICLE 173 OF THE EEC TREATY FOR A DECLARATION THAT COUNCIL DECISION NO 86/59/EEC OF 6 MARCH 1986 TERMINATING THE ANTI-DUMPING PROCEEDING CONCERNING IMPORTS OF DEAD-BURNED ( SINTERED ) NATURAL MAGNESITE ORIGINATING IN THE PEOPLE' S REPUBLIC OF CHINA AND NORTH KOREA ( OFFICIAL JOURNAL L 70 OF 13 MARCH 1986, P . 41 ) IS VOID .
BY A DOCUMENT LODGED AT THE COURT REGISTRY ON 15 SEPTEMBER 1986 THE COMMISSION RAISED AN OBJECTION OF INADMISSIBILITY PURSUANT TO ARTICLE 91*(1 ) OF THE RULES OF PROCEDURE AND ASKED THE COURT TO DECLARE THE APPLICATION INADMISSIBLE IN SO FAR AS IT IS DIRECTED AGAINST IT ON THE GROUND THAT IT CANNOT BE MADE A DEFENDANT TO THE PROCEEDINGS SINCE THE CONTESTED DECISION EMANATES FROM THE COUNCIL . THE COMMISSION ALSO SUBMITS THAT THE INADMISSIBILITY OF THE APPLICATION ALSO ARISES INDIRECTLY FROM ARTICLE 176 ( 1 ) OF THE EEC TREATY .
IN ITS OBSERVATIONS ON THE OBJECTION OF INADMISSIBILITY CONTAINED IN THE REPLY, THE HELLENIC REPUBLIC MAKES OBSERVATIONS ON ITS CAPACITY TO BRING PROCEEDINGS WHICH HAS NOT BEEN CONTESTED BY THE COMMISSION .
DECISION

ARTICLE 91 ( 3 ) OF THE RULES OF PROCEDURE PROVIDES THAT THE REMAINDER OF THE PROCEEDINGS ON THE OBJECTION IS TO BE ORAL, UNLESS THE COURT DECIDES OTHERWISE . THE COURT CONSIDERS THAT IT HAS SUFFICIENT INFORMATION IN THIS CASE AND THAT IT IS NOT NECESSARY TO OPEN THE ORAL PROCEDURE .
THE CONCLUSIONS IN THE APPLICATION ARE DIRECTED EXPRESSLY AND EXCLUSIVELY TO COUNCIL DECISION NO 86/59 OF 6 MARCH 1986 .
THE COURT FURTHER OBSERVES THAT THE COMMISSION' S ROLE IS PART OF THE COUNCIL' S DECISION-MAKING PROCESS . IT IS CLEAR FROM THE PROVISIONS OF COUNCIL REGULATION NO 2176/84 OF 23 JULY 1984 ON PROTECTION AGAINST DUMPED OR SUBSIDIZED IMPORTS FROM COUNTRIES NOT MEMBERS OF THE EUROPEAN ECONOMIC COMMUNITY ( OFFICIAL JOURNAL 1984, L 201, P . 1 ), ON THE BASIS OF WHICH THE DECISION AT ISSUE WAS ADOPTED, THAT THE COMMISSION IS RESPONSIBLE FOR CONDUCTING INVESTIGATIONS AND DECIDING UPON THE BASIS OF THOSE INVESTIGATIONS WHETHER ANY PROTECTIVE MEASURE APPEARS NECESSARY AND TO CONCLUDE THE PROCEEDING . HOWEVER, IF, AS IN THIS CASE, OBJECTIONS TO THE TERMINATION OF THE PROCEEDING ARE RAISED BEFORE THE ADVISORY COMMITTEE PROVIDED FOR IN ARTICLE 6 ( 1 ), ARTICLE 9 REQUIRES THE COMMISSION TO SUBMIT TO THE COUNCIL A PROPOSAL THAT THE PROCEEDING BE TERMINATED . THE DECISION-MAKING POWER THEREFORE LIES WITH THE COUNCIL WHICH MAY TAKE A DECISION DIFFERENT FROM THAT PROPOSED BY THE COMMISSION .
IT FOLLOWS FROM THE FOREGOING THAT THE APPLICATION FOR A DECLARATION THAT DECISION NO 86/59 IS VOID IS INADMISSIBLE IN SO FAR AS IT IS DIRECTED AGAINST THE COMMISSION .

ON THOSE GROUNDS,
THE COURT
HEREBY ORDERS AS FOLLOWS :
( 1 ) THE APPLICATION IS DISMISSED IN SO FAR AS IT IS DIRECTED AGAINST THE COMMISSION;
( 2 ) THE APPLICANT IS ORDERED TO PAY THE COSTS RELATING TO THE OBJECTION OF INADMISSIBILITY RAISED PURSUANT TO ARTICLE 91 OF THE RULES OF PROCEDURE .
LUXEMBOURG, 11 MARCH 1987 .