Avis juridique important

Order of the President of the Court of 14 February 1990. - Extramet Industrie SA v Council of the European Communities. - Dumping - Definitive duty - Calcium metal. - Case C-358/89 R. European Court reports 1990 Page I-00431 Pub.RJ Page Pub somm

Summary Parties Operative part

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1.Application for interim measures - Suspension of operation - Suspension of the operation of a regulation imposing a definitive anti-dumping duty - Conditions for grant - Special damage

( EEC Treaty, Art . 185; Rules of Procedure, Art . 83(2 ) )

2.Procedure - Request for measures of inquiry - Inappropriate in an application for interim measures

( Rules of Procedure, Arts 45 and 83(2 ) )

1.As the Court has consistently held ( see, inter alia, the order of the President of the Court of 9 April 1987 in Case 77/87 R Technointorg v Council (( 1987 )) ECR 1793 ), in order to establish, in accordance with Article 83(2 ) of the Rules of Procedure, the circumstances giving rise to urgency in an application for interim measures seeking the suspension of the operation of a regulation imposing a definitive anti-dumping duty, it is not sufficient to describe effects which are inherent in the imposition of anti-dumping duties, namely a rise in the price of the product affected by the duty . The very aim of an anti-dumping duty is to increase the price of the product in question in order to offset the dumping margin found to exist . For an undertaking processing the product, those effects lead to an increase in its production costs and perhaps an increase in the price of the processed product, with a consequent diminution of the undertaking' s market share for that product .

That case-law does not, however, mean that it is impossible for the applicant to have suffered damage of such a kind as to justify granting suspension, provided that the damage suffered as a result of the imposition of the anti-dumping duty is peculiar to the applicant .

An undertaking which claims that its survival is endangered by the loss, following the introduction of the anti-dumping duty, of almost all its sales on the Community market, representing approximately one-third of its production, fails to establish the imminence of that danger if it admits that its business has remained profitable and that demand for the products which it sells on the world market is increasing .

2.When it concerns the main proceedings and not the proceedings in an application for interim measures, a measure of inquiry such as the appointment of an expert falls within the jurisdiction of the Court under Article 45 of the Rules of Procedure and not within that of the President ruling on the application for interim measures .

In Case C-358/89 R

Extramet Industrie SA, a company governed by French law, whose registered office is at Annemasse ( France ), represented by Chantal Momège, of the Paris Bar, with an address for service in Luxembourg at the Chambers of Aloyse May, 31 Grand-Rue,

applicant,

v

Council of the European Communities, represented by Yves Crétien and Erik Stein, Legal Advisers, acting as Agents, with an address for service in Luxembourg at the office of Joerg Kaeser, Manager of the Legal Directorate of the European Investment Bank, 100 boulevard Konrad-Adenauer,

defendant,

supported by

Commission of the European Communities, represented by Eric White, a member of its Legal Department, acting as Agent, assisted by Reinhard Wagner, a national official on secondment, with an address for service in Luxembourg at the office of Georgios Kremlis, a member of the Commission' s Legal Department, Wagner Centre, Kirchberg,

intervener,

APPLICATION primarily for an order suspending the operation of Council 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,

The President of the Court of Justice

of the European Communities

( the grounds of the order are not reproduced )

hereby orders as follows :

( 1)The application for interim measures is dismissed .

( 2)Costs, including those of the intervener, are reserved .