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

JUDGMENT OF THE COURT

19 January 1999 (1)

(Appeal - Dumping - Ball bearings originating in Japan - Interpretation)

In Case C-245/95 P-INT,

NSK Lt d, a company incorporated under Japanese law, whose registered office is in Tokyo (Japan), and eight of its European subsidiaries, NSK Bearings Europe Ltd, a company incorporated under English law, whose registered office is in London, NSK-RHP France SA, a company incorporated under French law, whose registered office is in Guyancourt (France), NSK-RHP UK Ltd, a company incorporated under English law, whose registered office is in Ruddington (United Kingdom), NSK-RHP Deutschland GmbH, a company incorporated under Germanlaw, whose registered office is in Ratingen (Germany), NSK-RHP Italia SpA, a company incorporated under Italian law, whose registered office is in Milan (Italy), NSK-RHP Nederland BV, a company incorporated under Netherlands law, whose registered office is in Amstelveen (Netherlands), NSK-RHP European Distribution Centre BV, a company incorporated under Netherlands law, whose registered office is in Amstelveen (Netherlands), and NSK-RHP Iberica SA, a company incorporated under Spanish law, whose registered office is in Barcelona (Spain), all represented by David Vaughan QC, instructed by Robin Griffith, Solicitor, 200 Aldersgate Street, London EC1A 4JJ,

applicants,

APPLICATION for interpretation of the second point of the operative part of the judgment of 10 February 1998 in Case C-245/95 P Commission v NTN and Koyo Seiko [1998] ECR I-401,

the other parties to the proceedings being:

Commission of the European Communities, represented by Eric White 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, also of its Legal Service, Wagner Centre, Kirchberg,

appellant in the appeal,

NTN Corporation, a company incorporated under Japanese law, whose registered office is in Osaka (Japan),

Koyo Seiko Co. Ltd, a company incorporated under Japanese law, whose registered office is in Osaka (Japan),

applicants at first instance,

Council of the European Union,

defendant at first instance,

and

Federation of European Bearing Manufacturers' Associations, whose registered office is in Frankfurt-am-Main (Germany),

intervener at first instance,

THE COURT,

composed of: G.C. Rodríguez Iglesias, President, P.J.G. Kapteyn, J.-P. Puissochet, G. Hirsch and P. Jann (Presidents of Chambers), G.F. Mancini, J.C. Moitinho de Almeida, C. Gulmann, J.L. Murray, D.A.O. Edward, H. Ragnemalm (Rapporteur), L. Sevón and M. Wathelet, Judges,

Advocate General: P. Léger,

Registrar: R. Grass,

after hearing the views of the Advocate General,

gives the following

Judgment

1. By application lodged at the Court Registry on 20 February 1998, NSK Ltd and eight of its European subsidiaries, NSK Bearings Europe Ltd, NSK-RHP France SA, NSK-RHP UK Ltd, NSK-RHP Deutschland GmbH, NSK-RHP Italia SpA, NSK-RHP Nederland BV, NSK-RHP European Distribution Centre BV and NSK-RHP Iberica SA, (hereinafter referred to collectively as 'NSK) sought an interpretation, pursuant to Article 40 of the EC Statute of the Court of Justice and Article 102 of the Rules of Procedure, of the second point of the operative part of the judgment of 10 February 1998 in Case C-245/95 P Commission v NTN and Koyo Seiko [1998] ECR I-401 (hereinafter 'the judgment in question), NSK having been an intervener in those proceedings.

2. In that judgment the Court dismissed the appeal brought by the Commission of the European Communities against the judgment of the Court of First Instance of 2 May 1995 in Joined Cases T-163/94 and T-165/94 NTN Corporation and Koyo Seiko v Council [1995] ECR II-1381 (hereinafter 'the judgment of the Court of First Instance) which annulled Article 1 of Council Regulation (EEC) No 2849/92 of 28 September 1992 modifying the definitive anti-dumping duty on imports of ball bearings with a greatest external diameter exceeding 30 mm originating in Japan imposed by Regulation (EEC) No 1739/85 (OJ 1992 L 286, p. 2, corrigendum OJ 1993 L 72, p. 36), in so far as it imposed an anti-dumping duty on NTN Corporation ('NTN) and Koyo Seiko Co. Ltd ('Koyo Seiko). In the second point of the operative part the Court also ordered the Commission 'to pay the costs of this appeal.

3. In its appeal, the Commission asked the Court to set aside the judgment of the Court of First Instance, to refer the case back to that Court and to order NTN and Koyo Seiko to pay the costs.

4. NTN and Koyo Seiko contended that the Court should dismiss the appeal and order the Commission to pay the costs.

5. By order of 14 February 1996 (Case C-245/95 P Commission v NTN Corporation and Koyo Seiko [1996] ECR I-559), the Court had granted leave to NSK to intervene in support of the forms of order sought by NTN and Koyo Seiko.

6. NSK contended that the Court should grant the forms of order sought by NTN and Koyo Seiko, confirm that the annulment of Article 1 of Regulation No 2849/92 applied equally to NSK and order the Commission to pay the costs relating to NSK's intervention.

7. On the question of admissibility, as follows from paragraph 24 of the judgment in question, the Court held the form of order sought by NSK, to the effect that the annulment of Article 1 of Regulation No 2849/92 should apply equally to it, to be inadmissible.

8. On the substantive issue, the Commission maintained, essentially, that the Court of First Instance had misinterpreted Council Regulation (EEC) No 2423/88 of 11 July 1988 on protection against dumped or subsidised imports from countries not members of the European Economic Community (OJ 1988 L 209, p. 1, hereinafter 'the basic regulation). According to the Commission, in the context of what were proceedings for review, application of criteria contained in Article 4 of the basic regulation for the purpose of assessing the existence or threat of injury constituted an error of law.

9. NTN, Koyo Seiko and NSK contended, however, that the Court of First Instance had properly applied the appropriate test, namely the existence of injury or threat of injury, within the meaning of the basic regulation.

10. It was held by the Court, in paragraph 42 of the judgment in question, that, in applying the criteria set out in Article 4 of the basic regulation for the purposes of examining whether the expiry of the anti-dumping duties could once more lead to injury or to a threat of injury, the Court of First Instance did not commit an error of law.

11. Consequently, the plea in law relied on by the Commission was rejected as unfounded.

12. With regard to costs, the Court pointed out that under Article 69(2) of the Rules of Procedure, which applies to the procedure on appeal pursuant to Article 118, 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 Commission had been unsuccessful, it was ordered to pay the costs of the appeal.

13. In its application for interpretation NSK requests the Court:

- to interpret the judgment in question so as to make clear to the Commission that it is already under an obligation to pay NSK's costs relating to the appeal, including those relating to the application to intervene,

- failing that, by rectifying the judgment in question or by delivering a supplementary judgment, to order the Commission to pay NSK's costs relating to the appeal,

- in any event, to order the Commission to pay NSK's costs relating to the application for interpretation.

14. The Commission requests the Court:

    - to dismiss the application to the Court to interpret, rectify or supplement the judgment in question,

    - failing that, to deliver a supplementary judgment ordering NSK to bear its own costs or make an order apportioning costs between the Commission and NSK,

    - to order NSK to pay the costs of the present application.

15. It should first be observed that an application for interpretation is admissible where it seeks clarification of the meaning of a specific point in the operative part of the judgment in question (see Case 9/81 INT Court of Auditors v Williams [1983] ECR 2859, paragraph 13). Secondly, it should be noted that an intervener must be allowed to submit an application for interpretation even if the party which it supports has not done so (Joined Cases 146/85 and 431/85 INT Maindiaux and Others v Economic and Social Committee and Others [1988] ECR 2003, paragraph 4).

16. Lastly, it must be held that the judgment in question is to be interpreted to the effect that the Commission is to pay NSK's costs, since that company was in all essential respects successful in contesting the pleas in law relied upon by the Commission in support of its appeal.

    Costs

17. Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. Since the Commission has been unsuccessful, it must be ordered to pay the costs of this application.

On those grounds,

THE COURT

hereby declares:

1. Point 2 of the operative part of the judgment of 10 February 1998, Commission v NTN and Koyo Seiko (C-245/95 P), is to be interpreted to the effect that the Commission of the European Communities is ordered to pay the costs of the appeal, including those relating to the intervention by NSK Ltd, NSK Bearings Europe Ltd, NSK-RHP France SA, NSK-RHP UK Ltd, NSK-RHP Deutschland GmbH, NSK-RHP Italia SpA, NSK-RHP Nederland BV, NSK-RHP European Distribution Centre BV and NSK-RHP Iberica SA.

2. The Commission is ordered to pay the costs of this application.

3. The original of this judgment shall be appended to the original of the judgment interpreted. This judgment shall be mentioned in the margin of the original of the judgment interpreted.

Rodríguez Iglesias Kapteyn Puissochet Hirsch Jann Mancini Moitinho de Almeida Gulmann Murray Edward Ragnemalm Sevón Wathelet

Delivered in open court in Luxembourg on 19 January 1999.

R. Grass G.C. Rodríguez Iglesias

Registrar President

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1: Language of the case: English.