In Case C-90/92,
REFERENCE to the Court under Article 177 of the EEC Treaty by the Finanzgericht (Finance Court) Baden-Wuerttemberg (Germany) for a preliminary ruling in the proceedings pending before that court between
Dr Tretter GmbH & Co., established in Rechberghausen,
and
Hauptzollamt Stuttgart-Ost,
on the interpretation and validity of Article 1(1) of Council Regulation (EEC) No 1739/85 of 24 June 1985 imposing a definitive anti-dumping duty on imports of certain ball bearings and tapered roller bearings originating in Japan (OJ 1985 L 167, p. 3),
THE COURT (Third Chamber),
composed of: M. Zuleeg, President of the Chamber, J.C. Moitinho de Almeida and F. Grévisse, Judges,
Advocate General: C. Gulmann,
Registrar: D. Louterman-Hubeau, Principal Administrator,
after considering the written observations submitted on behalf of:
° the plaintiff in the main action, by Hans-Joerg Niemeyer, Rechtsanwalt, Stuttgart,
° the Council of the European Communities, by Jorge Monteiro, an Administrator in the Legal Service, acting as Agent,
° the Commission of the European Communities, by Angela Bardenhewer and Eric L. White, of its Legal Service, acting as Agents, assisted by Hans-Juergen Rabe, Rechtsanwalt, Hamburg,
having regard to the Report for the Hearing,
after hearing the oral observations of the plaintiff in the main action and the Commission of the European Communities at the hearing on 22 April 1993,
after hearing the Opinion of the Advocate General at the sitting on 6 May 1993,
gives the following
Judgment
1 By order of 13 March 1992, received at the Court on 19 March 1992, the Finanzgericht (Finance Court) Baden-Wuerttemberg (Germany) referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty a question on the interpretation of Article 1(1) of Council Regulation (EEC) No 1739/85 of 24 June 1985 imposing a definitive anti-dumping duty on imports of certain ball bearings and tapered roller bearings originating in Japan (OJ 1985 L 167, p. 3).
2 That question was raised in the context of an action brought before the Finanzgericht Baden-Wuerttemberg by Dr Tretter GmbH & Co (hereinafter "Tretter"), against the decision of the Hauptzollamt Stuttgart-Ost (hereinafter "the HZA") to classify bearing bushes with greatest external diameter more than 30mm, which it had imported from Japan, under heading No 84.62 (Nimexe code 84.62.09) of the Common Customs Tariff. Pursuant to that classification, the said products were subjected, in addition to a customs duty of 9%, to an anti-dumping duty of 21.7% under Article 1 of the said Regulation No 1739/85.
3 In the words of paragraph 1 of that provision:
"1. A definitive anti-dumping duty is hereby imposed on imports of ball bearings with greatest external diameter of more than 30mm and of tapered roller bearings falling within heading No ex 84.62 of the Common Customs Tariff and corresponding to Nimexe codes 84.62-09 and 84.62-17, originating in Japan with the exception of bearings manufactured by Inoue Jikuuke Kogyo Co. Ltd, Maekawa Bearing MFG Co. Ltd, Matsuo Bearing Co. Ltd and Minamiguchi Bearing MFG. Co. Ltd."
4 In its application, Tretter contends that the products in question are not ball bearings falling within heading No 84.62-09 of the Nimexe code, but are parts of bearings "other" than ball, roller or needle roller bearings, to be classified under heading No 84.62-33 or even "other roller" bearings to be classified under heading No 84.62-26 of that code. Accordingly, those products are not covered by Article 1 of Regulation No 1739/85 and the anti-dumping duty is not due.
5 The national court points out that, if Article 1(1) of Regulation No 1739/85 were to be interpreted as covering bearing bushes, it would, to that extent, be void, if it were established that the anti-dumping proceeding had not involved those products.
6 In those circumstances the national court decided to stay the proceedings until the Court of Justice had given judgment on the following question submitted to it for a preliminary ruling:
"Is Article 1(1) of Council Regulation (EEC) No 1739/85 of 25 June 1985 imposing a definitive anti-dumping duty on imports of certain ball bearings and tapered roller bearings originating in Japan (OJ 1985 L 167, p. 3) invalid or to be interpreted as meaning that 'ball bearings ... corresponding to Nimexe code 84.62-09 ...' includes only ball bearings in the technical sense, that is to say only radial bearings, and not so-called bearing bushes (Kugelbuchsen) (linear-only guideways)?"
7 Reference is made to the Report for the Hearing for a fuller account of the facts, the legal background to the main action, the procedure and the written observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.
8 By the question submitted for a preliminary ruling the national court is asking whether Article 1(1) of Regulation No 1739/85 must be interpreted as meaning that it includes bearing bushes and, if so, whether that provision is valid.
9 It should be pointed out at the outset, that it appears, in particular, from Articles 7 and 12 of Council Regulation (EEC) No 2176/84 of 23 July 1984 on protection against dumped or subsidized imports from countries not members of the European Economic Community (OJ 1984 L 201, p. 1), which is the basic regulation applicable in the main proceedings, that anti-dumping duties apply only to dumped products identified during the investigations opened and carried out in accordance with Article 7. It follows that were Article 1(1) of Regulation No 1739/85 to be interpreted as including bearing bushes, it would, to that extent, be void.
10 According to the Council and the Commission, the anti-dumping proceeding, which led to the imposition of the anti-dumping duties in dispute, did not include bearing bushes, notwithstanding the wording of Recital (25) in the premable to Regulation No 1739/85 which is as follows: "As far as the small manufacturers were concerned, the investigation took into account exports to the Community of all ball bearing types".
11 As the Court has previously held, when the wording of secondary Community law is open to more than one interpretation, preference should be given to the interpretation which renders the provision consistent with the Treaty (see, inter alia, the judgment in Case 218/82 Commission v Council [1983] ECR 4063, paragraph 15). An implementing regulation must also be given, if possible, an interpretation consistent with the provisions of the basic regulation (see, in that regard, the judgment in Case 38/70 Tradax [1971] ECR 145, paragraph 10).
12 It is therefore appropriate to consider whether it is possible to interpret Article 1(1) of Regulation No 1739/85 as not including bearing bushes.
13 In that regard, it should be pointed out, first, that the actual wording of Article 1(1) of Regulation No 1739/85, and in particular, the words "falling within heading No ex 84.62 of the Common Customs Tariff", allows it to be concluded that the possible classification of a product under that heading does not automatically result in that product' s being subjected to an anti-dumping duty under that provision.
14 It should be pointed out, secondly, as the Council and the Commission have correctly noted, that only ball bearings, in the narrow sense of radial ball bearings, necessarily have a diameter. The section of bearing bushes, whose function is, in principle, to allow translational movements and prevent any rotary motion is often rectangular.
15 However, if the Community legislature had wished to subject bearing bushes to anti-dumping duties, it would in any event have set out other distinguishing criteria in their regard. There would have been no justification for subjecting to anti-dumping duty only bearing bushes of circular cross-section with greatest external diameter more than 30mm.
16 It follows that, without any predetermination of the classification of bearing bushes within tariff heading ex 84.62, Article 1(1) of Regulation No 1739/85 must be interpreted as meaning that the anti-dumping duty which it imposes does not apply to bearing bushes.
17 The answer to the national court' s question should therefore be that Article 1(1) of Regulation No 1739/85 must be interpreted as meaning that it does not include bearing bushes.
Costs
18 The costs incurred by the Council and Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court.
On those grounds,
THE COURT (Third Chamber),
in answer to the question submitted to it by the Finanzgericht Baden-Wuerttemberg by order of 13 March 1992, hereby rules:
Article 1(1) of Council Regulation (EEC) No 1739/85 of 24 June 1985 imposing a definitive anti-dumping duty on imports of certain ball bearings and tapered roller bearings originating in Japan must be interpreted as meaning that it does not include bearing bushes.
