Opinion of Mr Advocate General Mischo
Mr President,
Members of the Court,
1. The application submitted by the Bureau Européen des Unions de Consommateurs (hereinafter referred to as the BEUC), with which this Opinion will deal, seeks a declaration that a letter of the Commission dated 15 March 1989 is void. I think it would be useful to set out that letter in full:
2. The provision to which the Commission expressly referred, namely Article 7(4)(a) 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 (hereinafter referred to as the basic regulation), is worded as follows:
3. The Commission's letter is the reply to a written request which the BEUC had made on 13 March 1989, following the publication of the notice of initiation of an antidumping proceeding concerning certain imports of audio cassettes and audio cassette tapes originating in Japan, the Republic of Korea and Hong Kong, in which the Commission, pursuant to Article 7(l)(a) of the basic regulation, had called upon interested parties to make known their views in writing and, in appropriate cases, to request a hearing not later than 30 days following the date of publication of the notice.
4. The BEUC claims that Article 7(4)(a) of the basic regulation does not prevent the Commission from acceding to its request to inspect the non-confidential documents, and it further claims that, if it did have that effect, it is illegal and must therefore be declared inapplicable in accordance with Article 184 of the Treaty. In support of its case it relies as its main argument upon the existence of a fundamental principle of Community law which requires that
Admissibility
5. In the first place, the Commission contests the admissibility of the application on the ground that its letter of 15 March 1989 does not constitute a decision against which an action for annulment may lie but merely a communication of information about the prevailing legal situation. The Commission refers to the case-law of the Court, according to which an act cannot be challenged under Article 173 of the Treaty unless it is
6. However, it must be observed that the question whether the contested letter produced legal effects affecting the interests of the BEUC by altering its legal position cannot be divorced from an examination of the precise scope of the provision of Community law at issue: if the BEUC's argument proved to be right, there would be no doubt that the Commission's letter would have produced legal effects in its regard by not allowing it to enjoy a right provided for by Community law. I therefore consider it appropriate to go on to consider the substance of the case.
Observance of the right to be heard
7. It became clear in the course of the hearing that the fundamental principle on which the BEUC intended to rely was the observance of the right to be heard, which the Court has held to be a fundamental principle of Community law.
8. In its judgments of 10 July 1986 in Cases 234/84 and 40/85 Belgium v Commission [1986] ECR 2263 and 2321, the Court reiterated, at paragraphs 27 and 28 respectively, that
9. In the present case, however, the antidumping proceeding was not initiated against the BEUC and is not liable to culminate in a measure adversely affecting it. There are therefore no documents which the Commission could consider using in support of any allegation relating to any infringement of Community law by the BEUC. The conclusion to be drawn is therefore, first, that the BEUC cannot effectively claim a right to be heard, in the strict sense of that concept, and secondly, that Article 7(4)(a) of the basic regulation does not fly in trie face of the right to be heard by not obliging the Commission to communicate non-confidential documents to bodies such as the BEUC.
10. It must also be observed that the BEUC's line of argument follows its own peculiar logic. Having stated unambiguously in paragraph 24 of its application that the fundamental principle on which it relies, and which it has taken from the Opinion of Mr Advocate General Warner in Case 113/77 (NTN Toyo Bearing v Council [1979] ECR 1212, at p. 1261), was put into effect by Article 7(4)(b) of the basic regulation which, in an antidumping proceeding, restricts to exporters and importers the right to be
11. Perhaps it was because the BEUC sensed that its position was not covered by the right to be heard sensu stricto that it tried to widen the argument by maintaining that, in order to be able to rely on the fundamental principle, it had to show that the adoption of an antidumping measure relating to imports of audio cassettes and audio cassette tapes originating in Japan, the Republic of Korea and Hong Kong, would be an individual measure likely to affect its interests directly. For this purpose, it relies principally upon Articles 11(1) and 12(1) of the basic regulation, which make the imposition of provisional or definitive antidumping duties subject to the condition that the interests of the Community call for intervention, and it asserts that, since consumers' interests form part of the Community's interests, the Commission cannot properly ascertain the Community interest without allowing consumers to expound and defend their legitimate interests in the course of the proceeding.
12. Yet even if in the present case — which does not concern the admissibility of an action brought by a natural or legal person against a decision not addressed to it — we disregard the judgments of the Court holding that an organization created to protect the collective interests of a given category of persons cannot be considered to be individually concerned by a measure affecting the general interests of that category, the fact remains that BEUC's line of argument to the effect that its interests are directly affected is a circular one. The BEUC bases its supposed right to intervene in the procedure and to have access to the documents on a line of decided cases in which the Court in fact treats the existence of such a right on the part of a person or the fact that that person played a decisive role in the procedure as an essential condition for his legitimate interests to be directly affected. In its judgment of 28 January 1986 in Case 169/84 (Cofaz v Commission [1986] ECR 391, at paragraphs 23 and 24), the Court recalled that case-law in the following terms :
13. Quite apart from the fact that the BEUC is not acting as a complainant, I take view that it cannot therefore rely on that case-law in order to claim the right to take an active part in the antidumping proceeding.
14. The same is true of the judgment of 2 February 1988 in Joined Cases 67, 68 and 70/85 (Van der Kooy and Others v Commission [1988] ECR 219), cited by the BEUC in support of its assertion that
15. The BEUC has not proved that in the present case its position was substantially the same. In particular, as far as its participation in the proceeding is concerned, it merely claims a role comparable to that actually played by the Landbouwschap, since it never performed such a role.
16. It may therefore be concluded, with regard to Article 7(4)(a), that it does not oblige the Commission to allow an organization having the characteristics of the BEUC to have access to the non-confidential file and information made available by any party in an antidumping proceeding.
17. I do, however, agree with the BEUC that Article 7(4)(a) does not prevent the Commission from making available to it non-confidential documents. It follows that the Commission cannot be criticized for giving the BEUC a copy of the non-confidential version of the complaint, as the BEUC recounts at paragraph 10 of its application.
The right to be heard and its consequences
18. In its reply, the BEUC further argues that it has the right to be heard, and hence to receive the documents on the file pursuant to Article 7(5) of the basic regulation, which provides as follows:
19. Indeed, BEUC's formal conclusions refer only to the disclosure of documents as provided for by Article 7(4)(a) of the basic regulation and not to any obligation of disclosure which would arise from the right to be heard under Article 7(5).
20. In the alternative, I take the view in any event that the BEUC has not succeeded in demonstrating during these proceedings that it should have been considered an interested party likely to be affected by the result of the proceeding or that there were particular reasons why [it] should be heard orally.
21. In the first place, the argument that the BEUC falls within the category of persons envisaged by Article 7(5) on the ground that it is directly and individually concerned by the antidumping proceeding cannot be accepted for the reasons set out above.
22. Furthermore, the fact that by virtue of Article 2 of its Statutes the declared object of the BEUC is to put forward the views of its members (national consumer organizations) and that its very existence stems from its ability effectively to represent the interests of consumers before the Community institutions is not such as to demonstrate that it is concerned by the result of an antidumping proceeding conducted by the Commission. The fact that representatives of the BEUC sit on the Consumers' Consultative Committee set up by Commission Decision 73/306/EEC of 25 September 1973 (Official Journal 1973 L 283, p. 18), as amended in particular by Decision 80/1087/EEC of 16 October 1980 (Official Journal 1980 L 320, p. 33) is immaterial: the task of that Committee, whose members are appointed by the Commission and which is convened by the Commission, is
23. Moreover, the point that individual consumers are too weak to represent their interests before Community institutions does not in my view amount to a particular reason for the purposes of Article 7(5) of the basic regulation such as to entitle BEUC to be heard in this case: in my opinion, a particular reason within the meaning of that provision means only a reason specific to the antidumping proceeding in question and not quite general reasons valid for any procedure, irrespective of its purpose.
24. Lastly, I am convinced that the right to be heard under Article 7(5) does not comprise a right of access to the complete non-confidential file held by the Commission, as the BEUC claims. In the first place, even Article 7(4)(a), of which the BEUC wishes to avail itself, only provides for the disclosure of such of the non-confidential documents as are relevant to the defence of the interests of those concerned and are used by the Commission in the investigation and Article 7(5) cannot create still broader rights. No argument to the contrary can be derived from the judgment of 20 March 1985 in Case 264/82 (Ttmex Corporation v Council and Commission [1985] ECR 849). Although the Court gave a broad interpretation of Article 7(4)(a) in that judgment, concluding that
25. Lastly, in this context it may be worth making a brief incursion into the field of competition law, although the investigation procedure established by Regulation No 17 of the Council is not comparable in all respects to an antidumping proceeding. In its judgment of 17 January 1984 in Joined Cases 43 and 63/82 (VBVB and VBBB v Commission [1984] ECR 19, at paragraph 25), the Court expressly held that
26. Furthermore, I consider that there is no reason for not applying those principles to a procedure of the type set up by Regulation No 2423/88, which is usually set in motion by complainants. Apart from the fact that, by virtue of a general principle which applies during the whole course of an administrative procedure, interested parties other than complainants cannot — any more than the complainants — have access to documents containing business secrets, it seems to me that, at the very least, it may be inferred from those principles that to deny an interested party access to all the non-confidential documents belonging to the investigation, including those which may have no bearing on that party's interests, is not a breach of any right of the defence or of any legitimate interests.
27. My conclusion from the foregoing is that, even if the BEUC should have been regarded as an interested party likely to be affected by the result of the proceeding for the purposes of Article 7(5) of the basic regulation, it could not infer from that circumstance the right claimed in its conclusions, namely
28. Since this case is a direct action and since the BEUC's conclusions are worded as set out above, it is not necessary for the Court to resolve the question whether an interested party having the right to be heard also has, by virtue of that right, the right to inspect certain specific documents on the Commission's file (as opposed to the non-confidential file in its entirety).
29. It is therefore only on a purely alternative basis that I would make these few observations.
30. There must be a difference between the parties referred to in Article 7 (4) (a) and those referred to in Article 7(5). The former are the complainants and the importers and exporters manifestly concerned. These are entitled to inspect only the information relevant to the defence of their interests. It follows, in my view, that the importers and exporters not manifestly concerned do not have that right, no doubt because their interests are not affected so directly. Yet consumer protection organizations are even less immediately concerned than those importers and. exporters. They cannot therefore have more rights than them.
31. In order for the consultation of the interested [parties] likely to be affected by the result of the proceeding to be as effective as possible, the Commission may indeed see fit to submit a document to them. That was what the Commission did in this case. In my opinion, however, it was acting by virtue of a discretion.
32. Incidentally, the complaint was probably the document on which a consumer-protection organization was best qualified to submit its comments. It is usually in the complaint that one finds the information on price charges and sales of products manufactured in the Community and on the Community's competitive standing in the market, which are the points on which the BEUC claimed in its application (paragraphs 11 to 14) to be in a position to make significant contributions to the investigation. It is a priori most unlikely that such an organization will be in a position to provide information on the existence of dumping, that is to say, on the question whether the export price to the Community of the product under consideration is less than the normal value of the like product (Article 2(2) of the basic regulation). Contrary to what the BEUC appears to believe (paragraph 13 of the application), the comparison to be made does not in fact relate to the importer's price on the one hand and the Community producer's price on the other.
Principle of good administration
33. The BEUC has submitted alternatively that a breach of the principle of good administration and of the principle requiring a coherent application of the rules of Community law and procedure has been committed.
34. As far as the first principle is concerned, it is sufficient to observe that the BEUC's argument is based on a premise whose validity it has still not proved, even by pleading a fundamental principle of Community law, namely that it should have the same right of access to information as exporters, importers and complainants because it has the same right to challenge the outcome of the proceeding before the Court.
35. In pleading the second principle the BEUC refers to the fact that in its capacity of intervener in a case before the Court it could have access to the non-confidential documents submitted by the main parties thereto. However, I see nothing illogical or incoherent in the fact that in two procedures of a different kind, conducted before two different institutions, one particular party does not enjoy the same right of access to the files, especially since the files themselves are not necessarily the same. Moreover, the fact that the BEUC had been granted leave to intervene in support of the conclusions of the Commission in Joined Cases 228 and 229/82R and 228 and 229/82 {Ford v Commission [1982] ECR 3091, at p. 3097 and [1984] ECR 1129, at p. 1137), which concerned an application for the annulment of a decision of the Commission relating to a proceeding under Article 85 of the EEC Treaty, does not necessarily mean that it should be allowed to intervene in a case arising from an antidumping proceeding. The BEUC's role in the two types of proceeding is not the same: it is certainly not excluded that, as a body representing the interests of consumers, the BEUC may be amongst the natural or legal persons who claim a legitimate interest who are expressly authorized under Article 3(2)(b) of Regulation No 17, mentioned above, to submit a complaint to the Commission. In any case, the order by which the Court allowed the intervention in Joined Cases 228 and 229/82 is based, in particular, on the fact that it had already intervened in the earlier stages of the case. In doing so, it had, in my opinion, played a role comparable to that of a complainant.
36. The alternative submission put forward by the BEUC cannot therefore be accepted either.
37. Accordingly, I propose that the Court should dismiss the application and order the applicant to pay the costs, except those of the Council, which intervened in support of the conclusions of the Commission but did not include in its intervention any conclusions as to costs.
1 Original language: French.
2 OJ 1988 L 209, p. 1.
3 OJ 1989 C 11, p. 9.
4 See in particular the judgment or 24 June 1986 in Case 53/85 AKZOv Commission [mi] ECR 1965, at para. 16.
5 See in particular the judgment of 21 September 1989 in Joined Cases 46/87 and 227/88 Hoechil v Commission [1989] ECR 2859, at para. 14, and the judgment of 18 October 1989 in Case 374/87 Or/tern v Commission [1989] ECR 3283, at para. 32.
6 See in particular the order of 5 November 1986 in Case 117/86 [/FADE v Council and Commission [1986] ECR 3256 at para. 12.
7 This point is clearly seen in paragraphs 60 and 62 of its application.
8 Regulation No 17 of the Council of 6 February 1962 (OI English Special Edition 1959-1962, p. 87).
9 See paragraph 21 of the judgment of 17 November 1987, cited above, which refers to the judgment of 24 June 1986 in Case 53/85 AKZO v Commission [19861 ECR 1965 at para. 28.