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Cite as: [2000] EUECJ C-458/98P

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JUDGMENT OF THE COURT (Fifth Chamber)

3 October 2000 (1)

(Appeal - Anti-dumping - Regulation (EEC) No 2423/88 - Calcium metal - Admissibility - Re-opening of an anti-dumping procedure after annulment of the regulation adopting an anti-dumping duty - Right to a fair hearing)

In Case C-458/98 P,

Industrie des Poudres Sphériques, established in Annemasse (France), represented by C. Momège, of the Paris Bar, with an address for service in Luxembourg at the Chambers of A. May, 398 Route d'Esch,

appellant,

APPEAL against the judgment of the Court of First Instance of the European Communities (Fifth Chamber, Extended Composition) of 15 October 1998 in Case T-2/95 Industries des Poudres Sphériques v Council [1998] ECR II-3939, seeking to have that judgment set aside,

the other parties to the proceedings being:

Council of the European Union, represented by S. Marquardt, Legal Adviser, acting as Agent, assisted by P. Bentley, Barrister, with an address for service in Luxembourg at the office of A. Morbilli, General Counsel of the Legal Affairs Directorate in the European Investment Bank, 100 Boulevard Konrad Adenauer,

defendant at first instance,

Commission of the European Communities, represented by N. Khan and X. Lewis, of its Legal Service, acting as Agents, with an address for service in Luxembourg at the office of C. Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,

Péchiney Électrométallurgie, established in Courbevoie (France),

and

Chambre Syndicale de l'Électrométallurgie et de l'Électrochimie, established in Paris (France), represented by O. d'Ormesson and O. Prost, of the Paris Bar,

interveners at first instance,

THE COURT (Fifth Chamber),

composed of: D.A.O. Edward, President of the Chamber, P.J.G. Kapteyn, A. La Pergola, P. Jann and H. Ragnemalm (Rapporteur), Judges,

Advocate General: G. Cosmas,

Registrar: R. Grass,

having regard to the report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 16 March 2000,

gives the following

Judgment

By application lodged at the Court Registry on 16 December 1998, Industrie des Poudres Sphériques, formerly Extramet Industrie ('IPS), brought an appeal pursuant to Article 49 of the EC Statute of the Court of Justice against the judgment of the Court of First Instance in Case T-2/95 Industries des Poudres Sphériques v Council [1998] ECR II-3939 (hereinafter 'the contested judgment), by which that Court dismissed IPS's application for annulment of Council Regulation (EC) No 2557/94 of 19 October 1994 imposing a definitive anti-dumping duty on imports of calcium metal originating in the People's Republic of China and Russia (OJ 1994 L 270, p. 27; 'the regulation at issue).

The relevant legislation

Under 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; 'the basic regulation), an anti-dumping procedure consists of several stages, including the investigation stage.

Article 7 of the basic regulation is headed 'Initiation and subsequent investigation.

Article 7(1) of the basic regulation provides:

'Where, after consultation it is apparent that there is sufficient evidence to justify initiating a proceeding the Commission shall immediately:

(a) announce the initiation of a proceeding in the Official Journal of the European Communities; such announcements shall indicate the product and countries concerned, give a summary of the information received, and provide that all relevant information is to be communicated to the Commission; it shall state the period within which interested parties may make known their views in writing and may apply to be heard orally by the Commission in accordance with paragraph 5;

(b) so advise the exporters and importers known to the Commission to be concerned as well as representatives of the exporting country and the complainants;

(c) commence the investigation at Community level, acting in cooperation with the Member States; such investigation shall cover both dumping or subsidisation and injury resulting therefrom and shall be carried out in accordance with paragraphs 2 to 8; the investigation of dumping or subsidisation shall normally cover a period of not less than six months immediately prior to the initiation of the proceeding.

Article 7(4) of the basic regulation provides:

'(a) The complainant and the importers and exporters known to be concerned, as well as the representatives of the exporting country, may inspect all information made available to the Commission by any party to an investigation as distinct from internal documents prepared by the authorities of the Community or its Member States, provided that it is relevant to the defence of their interests and not confidential within the meaning of Article 8 and that it is used by the Commission in the investigation. To this end, they shall address a written request to the Commission indicating the information required.

(b) Exporters and importers of the product subject to investigation and, in the case of subsidisation, the representatives of the country of origin, may request to be informed of the essential facts and considerations on the basis of which it is intended to recommend the imposition of definitive duties or the definitive collection of amounts secured by way of a provisional duty.

(c) (i) requests for information pursuant to (b) shall:

(aa) be addressed to the Commission in writing,

...

...

Article 13 of the basic regulation, headed 'General provisions on duties, states in paragraph (4)(a):

'Anti-dumping and countervailing duties shall be neither imposed nor increased with retroactive effect. ...

Background to the dispute and the proceedings before the Court of First Instance

IPS is an undertaking specialising in the production from primary calcium metal of calcium metal broken up into granules of reactive metal. Primary calcium metal is produced in five countries: France (by Péchiney Électrométallurgie, 'PEM), China, Russia, Canada and the United States of America.

To obtain supplies of primary calcium metal, IPS turned from the outset to the Community producer, PEM. It also imported primary calcium metal from China and the Soviet Union.

Following the lodging in 1987 of a complaint by the Chambre Syndicale de l'Électrométallurgie et de l'Électrochimie ('the Chambre Syndicale), acting on behalf of PEM, the Commission initiated an anti-dumping proceeding pursuant to Council Regulation (EEC) No 2176/84 of 23 July 1984 on protection againstdumped or subsidised imports from countries not members of the European Economic Community (OJ 1984 L 201, p. 1).

Commission Regulation (EEC) No 707/89 of 17 March 1989 imposing a provisional anti-dumping duty on imports of calcium metal originating in the People's Republic of China or the Soviet Union (OJ 1989 L 78, p. 10) subsequently imposed a provisional anti-dumping duty of 10.7% on the imports in question.

After extending the validity of the provisional duty, the Council, by Regulation (EEC) No 2808/89 of 18 September 1989 imposing a definitive anti-dumping duty on imports of calcium metal originating in the People's Republic of China and the Soviet Union and definitively collecting the provisional anti-dumping duty imposed on such imports (OJ 1989 L 271, p. 1), imposed definitive anti-dumping duties of 21.8% and 22%.

On 27 November 1989, the appellant brought an action before the Court of Justice for annulment of that regulation.

The application was declared admissible by judgment of the Court of 16 May 1991 (Case C-358/89 Extramet Industrie v Council [1991] ECR I-2501, hereinafter 'Extramet I).

By judgment of 11 June 1992 (Case C-358/89 Extramet Industrie v Council [1992] ECR I-3813, hereinafter 'Extramet II), the Court annulled Regulation No 2808/89 on the grounds that the Community institutions (i) had not actually considered whether the Community producer of the product referred to in the regulation in question, namely PEM, had, by its refusal to sell, itself contributed to the injury suffered, and (ii) had not established that the injury did not derive from the factors alleged by the applicant, and had therefore not followed the proper procedure in determining the injury.

Following the Extramet II judgment, on 1 July 1992 PEM sent the Commission a note arguing that the investigation should be reopened and a technical memorandum on the assessment of the injury to the Community industry ('the 1 July 1992 memorandum on the assessment of injury).

The Commission, which took the view that the investigation had 'resumed de jure, requested IPS by letter of 17 July 1992 to submit observations on the assessment of the injury to the Community industry. In that letter it stated that it had asked PEM to submit observations on the same point.

By letter of 14 August 1992 IPS contested the Commission's interpretation as to whether it was legally possible to resume the investigation. It requested a decision, in due form and amenable to appeal, to be addressed to it.

IPS repeated its request by letter of 21 August 1992.

On 14 October 1992 IPS received from the Commission the 1 July 1992 memorandum on the assessment of injury.

On 14 November 1992 the Commission published a Notice concerning the anti-dumping proceeding relating to imports of calcium metal originating in China and Russia (OJ 1992 C 298, p. 3; hereinafter 'the notice concerning the anti-dumping proceeding).

By letter of 18 November 1992 the Commission informed IPS of the publication of the notice and requested it to return certain questionnaires within 30 days. It stated that the new investigation period was the period from 1 July 1991 to 31 October 1992.

By letter of 23 December 1992 IPS submitted observations to the Commission on the 1 July 1992 memorandum on the assessment of injury.

By letter of 29 July 1993 the Commission asked IPS to inform it of any facts which might help it reach a decision, in particular on the question of damage. By letter of 12 August 1993 IPS replied that it had no new information on the point, as the position had hardly changed since its letter of 23 December 1992.

On 21 April 1994 the Commission adopted Regulation (EC) No 892/94 imposing a provisional anti-dumping duty on imports of calcium metal originating in the People's Republic of China and Russia (OJ 1994 L 104, p. 5, 'the provisional regulation).

On 31 May 1994 IPS submitted observations on the provisional regulation, expressing numerous reservations with respect to it. The Commission replied to those observations by letter of 14 June 1994.

On 11 August 1994 the Commission informed IPS of the essential facts and considerations on the basis of which it was intended to propose the imposition of a definitive anti-dumping duty on imports of calcium metal originating in China and Russia.

On 19 October 1994 the Council, acting on a proposal from the Commission, adopted the regulation at issue.

On 9 January 1995, IPS brought an action before the Court of First Instance seeking annulment of the regulation at issue or, in the alternative, a declaration that the regulation was unenforceable against IPS. IPS also claimed that the Council should be ordered to pay the costs.

The Council contended that the Court of First Instance should dismiss the application and order IPS to pay the costs. The Commission, PEM and the Chambre Syndicale, intervening in support of the Council, contended that the action should be dismissed and that IPS should be ordered to pay the costs, including those arising from the intervention of PEM and the Chambre Syndicale.

The contested judgment

Admissibility

The Council and the Commission contended before the Court of First Instance that IPS's application was inadmissible.

The Commission submitted that the factors constituting a situation peculiar to IPS differentiating it from all other economic operators, as defined in the Extramet I judgment, were not present in this case. The factor which had distinguished IPS's situation in that case from that of independent importers who were applicants in other cases, namely the difficulties which it experienced in obtaining supplies from PEM, the sole Community producer, was missing in this case.

The Court of First Instance held that the Court of Justice had not based the admissibility of the application in Extramet I exclusively on the difficulties encountered by the applicant in obtaining supplies from the sole Community producer. In fact, it had based its decision on various factors constituting a situation peculiar to the applicant which differentiated it from all other traders (paragraph 52).

Since it considered that those circumstances still prevailed, the Court of First Instance declared that the application was admissible and that IPS was directly and individually concerned by the regulation at issue (paragraph 54).

Substance

The applicant relied, in support of its application to the Court of First Instance, on seven pleas in law, alleging, first, infringement of Articles 5 and 7(9) of the basic regulation and failure to have regard to the principle of res judicata and to the conditions for curing a defect in an administrative act; second, infringement of Articles 7 and 8 of the basic regulation and breach of the right to a fair hearing; third, infringement of Articles 4(4) and 2(12) of the basic regulation and manifest error of assessment as regards like products; fourth, infringement of Article 4 of the basic regulation and manifest error of assessment of the injury to the Community industry; fifth, infringement of Article 12 of the basic regulation and manifest error of assessment; sixth, breach of Article 190 of the EC Treaty (now Article 253 EC); and, seventh, misuse of powers.

The first plea

IPS divided its first plea into three limbs. In the first place, the resumption of the investigation had not been founded on any legal basis, since no provision for it was made in the basic regulation. In the second place, it had undermined the principle of res judicata by having the effect, contrary to the principle of legal certainty, of curing a defect in a proceeding annulled by the Court. In the third place, even assuming that Community law permitted a defect to be cured, the conditions for a resumption of the investigation, in other words for a cure, had not been satisfied in the present case.

The Court of First Instance stated that the absence in the basic regulation of specific provisions on the legal consequences of a judgment annulling a measure could not be interpreted as meaning that the institutions could not resume both the investigation and the proceeding in the context of which the definitive measures annulled had been adopted. Under Article 176 of the Treaty (now Article 233 EC), it was for the institution concerned to draw the appropriate consequences of an annulling judgment. In those circumstances, the annulment of a measure concluding an administrative proceeding which comprised several stages did not necessarily entail the annulment of the entire procedure prior to the adoption of the contested measure regardless of the grounds, procedural or substantive, of the judgment pronouncing the annulment (paragraph 91).

The Court of First Instance stated that in Extramet II the Court of Justice had annulled Regulation No 2808/89 on the ground that the Community institutions had not followed the proper procedure in determining the injury. The preliminary measures preparatory to the investigation, in particular the initiation of the proceeding under Article 7(1) of the basic regulation, had not therefore been affected by the unlawfulness found by the Court of Justice (paragraph 94). According to the Court of First Instance, the Commission could therefore lawfully resume the proceeding on the basis of all the measures in the proceeding which had not been affected by the annulment declared by the Court of Justice. However, since the Commission had decided to conduct a new investigation relating to a different reference period, the question arose as to whether the conditions deriving from the basic regulation had been complied with in this case (paragraph 95).

The Court of First Instance observed that it follows from Article 7(1) of the basic regulation that the existence of evidence to show that there is dumping causing injury to the Community industry is the necessary and sufficient substantive condition for Community action on dumping (paragraph 97), and that the institutions have a wide discretion when deciding which period should be taken into account for the purpose of determining injury in an anti-dumping proceeding (paragraph 96).

In the present case, the Court of First Instance found that there was no evidence to suggest to the Commission that dumping had ceased or that the Communityindustry was no longer suffering injury. On the contrary, the Commission had received a note from PEM in support of the reopening of the investigation and the 1 July 1992 memorandum on the assessment of injury (paragraph 98). In those circumstances, the Commission had not exceeded its discretion by deciding to continue the proceeding which had been started in 1989 and by conducting a fresh investigation on the basis of a different reference period (paragraph 99). Consequently, the Court of First Instance held that IPS's first plea was unfounded (paragraph 100).

The Court added that the change in the investigation period had not affected IPS's rights derived from the initiation of the proceeding in 1989 (paragraph 101).

The second and following pleas

IPS's second plea, alleging infringement of Articles 7 and 8 of the basic regulation as well as of the right to a fair hearing, was also divided into three limbs.

The first limb was based on a breach of the right to a fair hearing, in that the 1 July 1992 memorandum on the assessment of injury had not been forwarded to the applicant until 14 October 1992.

The Court of First Instance stated that IPS had acknowledged that knowledge of the content of the 1 July 1992 memorandum on the assessment of injury was not essential and that lack of such knowledge had not prevented it from putting forward its point of view on the question whether the Commission was entitled to resume the investigation (paragraph 110) and that, in any event, IPS had been in a position, from 14 October 1992, to put forward its point of view on whether the substantive conditions justifying resumption of the investigation were satisfied (paragraph 111). Consequently, IPS's procedural rights had not been infringed by the receipt on 14 October 1992 of the 1 July 1992 memorandum on the assessment of injury (paragraph 112).

Furthermore, the Court of First Instance found that, in the absence of a request from IPS in accordance with Article 7(4)(a) of the basic regulation for sight of the 1 July 1992 memorandum on the assessment of injury, the Commission had no obligation bring its content to IPS's attention (paragraph 113).

As regards the second limb of the second plea, alleging infringement of Article 7(4) of the basic regulation and disregard of Article 8 of that regulation, IPS alleged that the Commission had failed to forward to it certain documents produced by PEM, namely, in particular, a memorandum of 5 August 1993 concerning the technical work carried out at PEM's factory at La Roche-de-Rame ('the technical memorandum of 5 August 1993).

Having stated that the Commission had not complied with its obligations concerning access to the file as regards the technical memorandum of 5 August 1993 (paragraph 142), the Court of First Instance pointed out that IPS had been able to submit its observations on the memorandum in good time before the regulation at issue was adopted, except in respect of three confidential items which had neither been forwarded to IPS nor summarised for its benefit. However, IPS did not dispute the Commission's assertion that it was impossible to prepare a non-confidential summary of those three confidential items. In any event, IPS was not claiming that it had been unable to express its views on the technical memorandum of 5 August 1993 because of the failure to communicate those three items (paragraphs 143 and 144). In those circumstances, the second limb of the plea was dismissed.

The third limb of the second plea, as well as the other pleas relied on by IPS, were also rejected by the Court of First Instance. The application having been dismissed in its entirety, IPS was ordered to pay the costs.

The appeal

IPS claims that the Court of Justice should set aside the contested judgment, give final judgment in the dispute and order the Council, the Commission and the interveners to pay the costs of the interlocutory proceedings and of the proceedings dealing with the merits before the Court of First Instance and the costs of the present proceedings.

In first place, IPS claims that the Court of First Instance infringed Article 174 of the EC Treaty (now Article 231 EC), Article 176 of the Treaty and the basic regulation by holding that the Commission could legitimately reopen the proceeding on the basis of a different reference period. Furthermore, IPS claims that the Court of First Instance infringed the principles of proportionality and legitimate expectations in its application of Article 176 of the Treaty.

In second place, IPS claims that the Court disregarded the fundamental principle of the right to a fair hearing, and in particular Article 7(4) of the basic regulation, by deeming that the procedural irregularities occurring in the proceeding had not affected IPS's right to a fair hearing. IPS claims, in particular, that its procedural rights were infringed because the 1 July 1992 memorandum on the assessment of injury and the technical memorandum of 5 August 1993 were sent to it at a late stage.

The Council contends that the Court of Justice should dismiss the appeal and order IPS to pay the costs of the present proceedings.

The Commission contends, by way of cross-appeal, that the Court should set aside the contested judgment and declare IPS's application to the Court of First Instance inadmissible. In the alternative, the Commission contends that the Court shoulddismiss the appeal. In any event, the Commission asks the Court to order IPS to pay the costs.

The admissibility of IPS's application to the Court of First Instance

The Commission contends, by way of cross-appeal, that IPS's application to the Court of First Instance should have been declared inadmissible. It maintains that the part of the contested judgment dealing with admissibility errs in law in its application of the Extramet I judgment and is founded on conflicting or inadequate grounds.

The Commission contends that the finding in paragraph 53 of the contested judgment that 'the Commission does not dispute that PEM is unable to supply standard quality primary calcium metal with the characteristics desired by the applicant, which clearly shows that the applicant in fact continues to encounter difficulties in obtaining supplies from PEM is not consistent with other more detailed findings of fact on the similarity of the products and the willingness of PEM to supply IPS which can be found in paragraphs 219, 235, 249 to 256 and 308 of the judgment.

The Court of First Instance's findings in the contested judgment with regard to the substance of the case are wholly consistent with the reasons underlying the Commission's submission that the application is inadmissible. The Commission argues that, the question of the price apart, IPS was in fact able obtain supplies from PEM, as other traders did. Given that nothing distinguishes IPS from those other traders, the application to the Court of First Instance should, on a correct application of Extramet I, have been declared inadmissible.

In that regard, it should be pointed out that the finding in paragraph 53 of the contested judgment that IPS was still encountering difficulties in obtaining supplies from PEM is not inconsistent with the other passages of the judgment referred to by the Commission. The finding in paragraph 53 is supported by, in particular, paragraphs 249 to 256 of the contested judgment, from which it is apparent that PEM had not succeeded in meeting IPS's technical requirements relating to the product concerned. Consequently, the Commission has not established any inconsistency between paragraph 53 of the contested judgment and the other passages thereof.

Furthermore, it should be observed that in the contested judgment, as in Extramet I, the admissibility of the application was not based exclusively on the difficulties encountered by the applicant in obtaining supplies from the sole Community producer, but on various factors constituting a situation peculiar to IPS which differentiated it, as regards the measure in question, from all other traders.

In those circumstances, it must be held that the Commission has not established that the Court of First Instance was wrong in declaring the application admissible.

It follows that the Commission's cross-appeal must be dismissed.

The admissibility of the appeal

The Commission contends that the first plea in the appeal is inadmissible on the ground that it refers only to paragraphs 91, 95, 97 and 99 of the contested judgment as paragraphs containing errors of law when those paragraphs do not contain all the reasons on which the Court of First Instance based its dismissal of the first plea supporting the claim for annulment. Paragraph 101 of the contested judgment contains an additional reason, namely the fact that the procedure followed by the Commission when it resumed the investigation provided IPS with all the procedural safeguards it would have enjoyed had the Commission opened a fresh investigation following a new complaint lodged by PEM. The Commission contends that the appeal does not make it sufficiently clear that it is directed at paragraph 101 of the contested judgment or, if it is, why it is directed at that paragraph.

In response to IPS's reply on that point, the Commission contends that IPS's argument that, in paragraph 101 of the contested judgment, the Court of First Instance distorted the facts was raised for the first time in its reply. It therefore contends that the argument is inadmissible on the ground that new pleas may not be introduced in the course of the proceedings.

Furthermore, the Commission contends that the argument, put forward by IPS in its first plea, that the Court of First Instance infringed the principles of proportionality and legitimate expectations in its application of Article 176 of the Treaty, is, in fact, a new plea in law and is inadmissible in the appeal.

As regards the second plea, the Commission contends that the part of the plea alleging that the Court of First Instance infringed Article 7(4) of the basic regulation in finding that the delay in forwarding the 1 July 1992 memorandum on the assessment of injury did not affect IPS's procedural rights is inadmissible on the ground that IPS's application to the Court of First Instance did not refer to that article when dealing with the forwarding of that memorandum.

As regards the technical memorandum of 5 August 1993, the Commission considers that IPS is seeking to raise a question of fact as to PEM's willingness to supply IPS. That question was decided by the Court of First Instance and is inadmissible in the appeal.

As a preliminary point, it should be noted that, under the first paragraph of Article 51 of the EC Statute of the Court of Justice, an appeal is limited to points of law and is to lie on the grounds of lack of competence of the Court of First Instance,a breach of procedure before it which adversely affects the interests of the appellant or the infringement of Community law by the Court of First Instance. Article 112(1)(c) of the Rules of Procedure of the Court of Justice specifies that the appeal is to contain the pleas in law and legal arguments relied on.

It follows from those two provisions that an appeal must set out clearly the aspects of the Court of First Instance's judgment being criticised and the legal arguments advanced in support of the application for the judgment to be set aside.

It should be noted that the fact that an appeal, or a plea in support of an appeal, does not refer to all the reasons which led the Court of First Instance to adopt a position on a question does not result in the plea being inadmissible.

The Commission's argument that the first plea should be declared inadmissible on the ground that it does not refer sufficiently clearly to paragraph 101 of the contested judgment must, for that reason alone, be rejected.

Furthermore, it should also be noted, as the Advocate General has done in point 59 of his Opinion, that IPS refers to paragraph 101 of the contested judgment with sufficient precision in that, firstly, the first plea in the appeal refers to the reasoning in paragraphs 87 to 102 of the contested judgment in submitting that the Court of First Instance infringed Community law and, secondly, the Court of First Instance's finding in paragraph 101 of the contested judgment that the change in the investigation period did not affect IPS's rights is challenged in paragraph 98 of the appeal.

As to IPS's argument that, in paragraph 101 of the contested judgment, the Court of First Instance distorted the facts, it should be noted, as the Commission submits, that, in accordance with Article 42(2) of the Rules of Procedure of the Court of Justice, no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the proceedings.

In that regard, the Court of First Instance's alleged distortion of the facts, raised by IPS in its reply, is not based on matters of law or of fact which have come to light between the bringing of the appeal and the lodging of the reply. The first plea is therefore inadmissible in so far as it alleges that, in paragraph 101 of the contested judgment, the Court of First Instance distorted the facts.

Furthermore, the following observations should be made in respect of the alleged inadmissibility of IPS's arguments concerning the principles of proportionality and legitimate expectations.

Although it is true that, before the Court of First Instance, IPS complained of the change in the investigation period, it did not claim that the change was contrary tothe principles of proportionality and legitimate expectations. Although the appeal seeks to allege that the Court of First Instance breached those principles in interpreting Article 176 of the Treaty, in fact, as the Commission has observed, it merely alleges that it was the regulation at issue which infringed them.

To allow a party to put forward for the first time before the Court of Justice a plea in law which it has not raised before the Court of First Instance would mean allowing that party to bring before the Court, whose jurisdiction in appeals is limited, a wider case than that heard by the Court of First Instance. In an appeal the Court's jurisdiction is thus confined to examining the assessment by the Court of First Instance of the pleas argued before it (see, to that effect, Case C-136/92 P Commission v Brazzelli Lualdi and Others [1994] ECR I-1981, at paragraph 59; and Case C-7/95 P Deere v Commission [1998] ECR I-3111, at paragraph 62).

It must therefore be concluded that the first plea is also inadmissible inasmuch as it relies on an alleged infringement of the principles of proportionality and legitimate expectations.

As regards the second plea, although IPS did not, in its arguments before the Court of First Instance, specifically refer to Article 7(4) of the basic regulation in relation to the sending of the 1 July 1992 memorandum on the assessment of injury, its arguments were interpreted by that Court as referring to that provision.

It is sufficient to note in relation to the technical memorandum of 5 August 1993 that IPS has alleged that, by failing to observe the defendant's right to a fair hearing, the Court of First Instance infringed Community law, a matter against which an appeal lies.

Therefore, it must be concluded (i) that IPS's first plea is admissible save for the arguments relating to the alleged infringement of the principles of proportionality and legitimate expectations and the Court of First Instance's alleged distortion of the facts in paragraph 101 of the contested judgment and (ii) that the second ground of appeal is admissible in its entirety.

The first plea

By its first plea, IPS maintains that the Court of First Instance infringed Articles 174 and 176 of the Treaty and the basic regulation in holding that the Commission, in spite of the Extramet II judgment, was entitled to reopen the investigation on the basis of a different reference period but without initiating a new anti-dumping proceeding.

In that regard, it should be observed that, pursuant to Articles 174 and 176 of the Treaty, the institution or institutions whose act has been declared void are required to take the necessary measures to comply with the judgment of the Court of Justice.

In order to comply with a judgment annulling a measure and to implement it fully, the institution is required to have regard not only to the operative part of the judgment but also to the grounds which led to the judgment and constitute its essential basis, in so far as they are necessary to determine the exact meaning of what is stated in the operative part. It is those grounds which, on the one hand, identify the precise provision held to be illegal and, on the other, indicate the specific reasons which underlie the finding of illegality contained in the operative part and which the institution concerned must take into account when replacing the annulled measure (Joined Cases 97/86, 193/86, 99/86 and 215/86 Asteris and Others v Commission [1988] ECR 2181, paragraph 27).

The procedure for replacing such a measure may thus be resumed at the very point at which the illegality occurred (Case C-415/96 Spain v Commission [1998] ECR I-6993, paragraph 31).

In the Extramet II judgment the Court of Justice annulled Regulation No 2808/89 having found, in paragraph 19 of that judgment, that the Community institutions had not followed the proper procedure in determining the injury caused to the Community industry. The Court stated that it did not appear that the Community institutions had actually considered whether PEM had itself contributed, by its refusal to sell, to the injury suffered and established that the injury on which they based their conclusions did not derive from the factors alleged by the applicant.

The annulment of Regulation No 2808/89 was therefore based on factors which arose in the course of the anti-dumping proceeding, more specifically in the course of the investigation. Those circumstances did not concern and did not affect the initiation of the proceeding.

In those circumstances, it must be concluded that the Commission could, without infringing either the operative part or the grounds of the judgment in Extramet II, look in more detail at the issue of determining injury in the course of the anti-dumping proceeding which was still open.

However, the question arises as to whether the Commission complied with the provisions of the basic regulation in relation to the anti-dumping proceeding, in particular when it carried out the investigation on the basis of a different reference period from the period selected for the initial investigation.

IPS claims, in particular, that the change in the reference period was contrary to Article 7(1)(c) of the basic regulation which provides that the dumping investigation should normally cover a period of not less than six months immediately prior to the initiation of the proceeding.

In that regard, it should be noted in first place that the period provided for in Article 7(1)(c) is a guide rather than mandatory (see, mutatis mutandis, Case 246/87Continentale Produkten-Gesellschaft Erhardt-Renken v Hauptzollamt München-West [1989] ECR 1151, paragraph 8).

In second place, it should be noted that the institutions have a wide discretion regarding the determination of the period to be taken into account for the purposes of determining injury in an anti-dumping proceeding (see, inter alia, Case C-69/89 Nakajima v Council [1991] ECR I-2069, paragraph 86).

Lastly, it should be observed that it is clear from the scheme of the basic regulation that injury must be established in relation to the time when any decision imposing protective measures is adopted (Case C-121/86 Epicheiriseon Metalleftikon Viomichanikon kai Naftiliakon and Others v Council [1989] ECR 3919, at paragraph 35).

The adoption of anti-dumping duties is not a penalty relating to earlier behaviour but is a protective and preventive measure against unfair competition resulting from dumping practices. It is for that reason that under Article 13 of the basic regulation, anti-dumping duties cannot, as a general rule, be adopted or increased with retroactive effect.

In order to be able to determine the anti-dumping duties appropriate for protecting the Community industry against dumping, it is therefore necessary to carry out the investigation on the basis of as recent information as possible.

In the present case the Commission's selection of a reference period running from 1 July 1991 to 31 October 1992 and preceding the publication on 14 November 1992 of the notice concerning the anti-dumping proceeding, thus appears to be justified and consistent with the objectives of the basic regulation.

As regards the selection of a reference period, it must, however, be recalled that the existence of sufficient evidence of dumping and the injury resulting therefrom is always a prerequisite for the opening of an investigation, within the meaning of Article 7 of the basic regulation, whether at the initiation of an anti-dumping proceeding or in the course of a review of a regulation imposing anti-dumping duties (Case C-245/95 P Commission v NTN and Koyo Seiko [1998] ECR I-401, paragraph 38). The same is true of the resumption of an investigation in the course of an anti-dumping proceeding which has remained open following a judgment annulling a regulation imposing anti-dumping duties.

In that regard, it must be pointed out that the Court of First Instance found in paragraph 98 of the contested judgment that, following the judgment in Extramet II, PEM updated the information in its complaint of July 1987 by providing a detailed analysis of the various factors justifying the imposition of anti-dumping measures, namely normal value, export price, comparison of prices, dumping margin and injury, for the period from 1987 to December 1991, in other words the most recent period for which figures were available.

In those circumstances, it must be held that the Court of First Instance did not infringe Articles 174 and 176 of the Treaty or the basic regulation in finding, in paragraph 99 of the contested judgment, that the Commission was able continue the proceeding, which was already open, on the basis of a different reference period, since the initial proceeding had not been annulled by the Extramet II judgment and dumping was continuing.

The second plea

IPS claims that the Court of First Instance failed to have regard to the fundamental principle of the right to a fair hearing, and in particular Article 7(4) of the basic regulation, in holding that the procedural irregularities occurring in the course of the proceeding had not affected IPS's right to a fair hearing.

IPS claims, in particular, that its right to a fair hearing was infringed by the delay in sending it the 1 July 1992 memorandum on the assessment of injury. In addition, IPS states that the technical memorandum of 5 August 1993 was sent to it only on 21 May 1994, that is to say, more than a month after the provisional regulation was adopted.

In that regard, it should be observed that, in performing their duty to provide information, the Community institutions must act with all due diligence by seeking to provide the undertakings concerned, as far as is compatible with the obligation not to disclose business secrets, with information relevant to the defence of their interests, choosing, if necessary on their own initiative, the appropriate means of providing such information. In any event, the undertakings concerned must have been placed in a position during the administrative procedure in which they can effectively make known their views on the correctness and relevance of the facts and circumstances alleged and on the evidence presented by the Commission in support of its allegation concerning the existence of dumping and the resultant injury (Case C-49/88 Al-Jubail Fertilizer v Council [1991] ECR I-3187, paragraph 17).

First, it is pointed out that the 1 July 1992 memorandum on the assessment of injury was sent to IPS one month before publication on 14 November 1992 of the notice relating to the anti-dumping proceeding. As the Court of First Instance noted in paragraph 111 of the contested judgment, IPS was therefore in a position to put forward its point of view on whether the substantive conditions justifying resumption of the procedure were satisfied. The Court of First Instance was therefore correct in finding in paragraph 112 of the contested judgment that IPS's right to a fair hearing had not been infringed in that regard.

Second, in paragraph 142 of the contested judgment, the Court of First Instance found, in respect of the technical memorandum of 5 August 1993, that the Commission had not complied with its obligations concerning access to the file and,in particular, that the memorandum had been sent to IPS only on 21 May 1994, following the adoption of the provisional regulation, and was actually sent by PEM.

As IPS was in a position to put forward its point of view on the correctness and relevance of the facts set out in the technical memorandum of 5 August 1993 in good time before the adoption of the regulation at issue and it has not been established that the delay in sending the memorandum impaired IPS's defence, the Court of First Instance was correct in finding in paragraphs 143 and 144 of the contested judgment that IPS's procedural rights had not been infringed in that regard.

Lastly, it must be noted that it has not been proved that IPS's right to a fair hearing was affected by other irregularities relating to access to the file.

In those circumstances, the second plea must be rejected as unfounded.

It follows that the appeal must be dismissed in its entirety.

Costs

Under Article 69(2) of the Rules of Procedure, which apply to the procedure on appeal by virtue of 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. Under the first paragraph of Article 69(4), institutions which intervene in the proceedings are to bear their own costs.

On those grounds,

THE COURT (Fifth Chamber)

hereby:

1. Dismisses the appeal;

2. Orders Industrie des Poudres Sphériques to pay the costs;

3. Orders Péchiney Électrométallurgie, the Chambre Syndicale de l'Électrométallurgie et de l'Électrochimie and the Commission of the European Communities each to bear their own costs.

EdwardKapteyn La Pergola

Jann Ragnemalm

Delivered in open court in Luxembourg on 3 October 2000.

R. Grass D.A.O. Edward

Registrar President of the Fifth Chamber

1: Language of the case: French.