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

++++
Procedure - Originating application - Procedural requirements - Statement of the forms of order sought - Implied claim for the annulment of an act of an institution - Admissibility
(Rules of Procedure of the Court of Justice, Art. 38(1)(d))

- 457.823 -
In Case C-388/93,
PIA HiFi Vertriebs GmbH, represented by F. Michael Boemke, of the Hamburg Bar, with an address for service in Luxembourg at the Chambers of Marc Loesch, 8 Rue Zithe,
applicant,
v
Commission of the European Communities, represented by Eric L. White, a member of the Legal Service, and Claus Michael Happe, a national civil servant on secondment to the Commission, both acting as Agents, with an address for service in Luxembourg at the office of Georgios Kremlis, Wagner Centre, Kirchberg,
defendant,
APPLICATION for the refund of anti-dumping duties,
THE COURT,
composed of: O. Due, President, G.F. Mancini, J.C. Moitinho de Almeida, M. Díez de Velasco, D.A.O. Edward (Presidents of Chambers), C.N. Kakouris (Rapporteur), F.A. Schockweiler, G.C. Rodríguez Iglesias, F. Grévisse, M. Zuleeg and P.J.G. Kapteyn, Judges,
Advocate General: M. Darmon,
Registrar: J.-G. Giraud,
after hearing the views of the Advocate General,
makes the following
Order

1 Council Regulation (EEC) No 112/90 of 16 January 1990 (Official Journal 1990 L 13, p. 21) imposed a definitive anti-dumping duty on imports of certain compact-disc players originating, inter alia, in Japan. The rate for the anti-dumping duties in question was fixed at 32% of the net price free at the Community frontier not customs cleared.
2 The company PIA HiFi Vertriebs GmbH, whose registered office is in the Federal Republic of Germany, and two other companies whose registered offices are in the Netherlands and in the United Kingdom respectively, all three of which are independent importers of compact-disc players made and exported by the Japanese company Accuphase Laboratory, applied to the Commission, in accordance with Article 16 of Council Regulation (EEC) No 2423/88 of 11 July 1988 on protection against dumped or subsidized imports from countries not members of the European Economic Community (Official Journal 1988 L 209, p. 1) for a refund of anti-dumping duties which they had paid. They claimed they had paid export prices which were clearly higher than the normal value.
3 After having investigated the matter, the Commission found that Accuphase Laboratory' s dumping margin was 15.1%, thus 16.9% lower than the 32% established in Regulation No 112/90. Therefore, by Decision 93/363/EEC of 9 June 1993 concerning applications for refund of anti-dumping duties collected on imports of certain compact-disc players originating in Japan (Amroh BV, PIA Hifi, MPI Electronic) (Official Journal 1993 L 150, p. 44), the Commission granted the aforementioned applications for the refund of anti-dumping duties to the amount of 16.9% of the value used by the competent authorities for calculating the amount of the anti-dumping duty in question.
4 By application lodged at the Court Registry on 12 August 1993, PIA HiFi Vertriebs GmbH brought an action against the Commission' s decision.
5 By a separate document, lodged at the Court Registry on 13 September 1993, the Commission objected that the action was inadmissible and requested the Court for a decision not going to the substance of the case, in accordance with Article 91(1) of the Rules of Procedure.
6 The Commission claims that the application does not set out the form of order sought. In its view, this is a breach of the mandatory procedural requirement set out in Article 38(1)(d) of the Rules of Procedure which provides that an application must state the form of order sought by the applicant. That provision does not provide for the a posteriori rectification of the absence of formal forms of order sought in the application. Paragraph (7) of that article further provides that failure to comply with a mandatory procedural requirement constitutes a ground for inadmissibility.
7 Pursuant to Article 91(3) of the Rules of Procedure, the remainder of the proceedings relating to an application made in accordance with paragraph (1) of that article, after the opposite party has lodged its observations in writing, are to be oral, unless the Court decides otherwise. In the present case, the Court considers that it has sufficient information to decide on the objection of inadmissibility by way of an order, without oral proceedings.
8 Article 38(1) of the Rules of Procedure provides that "an application shall state ... (d) the forms of order sought by the applicant".
9 The application states that the action has been brought "... pursuant to Article 173 of the EEC Treaty ... against the decision of 9 June 1993 (K (93) 1447) concerning applications for refund of anti-dumping duties charged on imports of certain compact-disc players originating in Japan ... communicated to the applicant by letter of ... 11 June 1993, published under No 93/363/EEC on 22 June 1993 in the Official Journal of the European Communities, No L 150, p. 44" and relates to the "refund of anti-dumping duties".
10 Although the applicant has not clearly set out the form of order sought, it is none the less clear from those statements and from the whole arguments set out in the application (see, in that connection, the judgment in Case 8/56 ALMA v High Authority [1957] ECR 95) that PIA HiFi' s action is for the annulment of Decision 93/363 in so far as it restricts the refunds of anti-dumping duties claimed by PIA HiFi to 16.9% of the value used by the competent authorities for calculating the amount of the anti-dumping duty in question.
11 It follows that the Commission' s objection that the application is inadmissible in so far as it does not set out the form of order sought is not well founded.
12 Accordingly, the Commission' s objection of inadmissibility must be dismissed.

On those grounds,
THE COURT
hereby orders as follows:
1. The objection of inadmissibility is dismissed;
2. The costs are reserved.
Luxembourg, 7 February 1994.