JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber, Extended Composition)

20 June 2000 (1)

(Action for annulment - Dumping - Inadmissibility)

In Case T-597/97,

Euromin SA, established in Geneva, Switzerland, represented initially by D. Horovitz, J. Bäverbrant, G. Vandersanden and N. Stockwell, of the Brussels Bar, and by N. Robson, Solicitor, and subsequently by D. Horovitz, G. Vandersanden, N. Stockwell, M.E. Pitt and S. Sheppard, Solicitors, with an address for service in Luxembourg at the offices of Société de Geston Fiduciaire SARL, 2-4 Rue Beck,

applicant,

v

Council of the European Union, represented by S. Marquardt, of its Legal Service, acting as Agent, assisted by H.-J. Rabe and G. Berrisch, Rechtsanwälte, Hamburg and Brussels, 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,

supported by

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

intervener,

APPLICATION for annulment of Council Regulation (EC) No 1931/97 of 22 September 1997 imposing a definitive anti-dumping duty on imports of unwrought, unalloyed zinc originating in Poland and Russia and definitively collecting the provisional duty imposed (OJ 1997 L 272, p. 1),

THE COURT OF FIRST INSTANCE

OF THE EUROPEAN COMMUNITIES (Third Chamber, Extended Composition),

composed of: M. Jaeger, President, K. Lenaerts, V. Tiili, J. Azizi and P. Mengozzi, Judges,

Registrar: A. Mair, Administrator,

having regard to the written procedure and further to the hearing on 6 July 1999,

gives the following

Judgment

Facts and procedure

1.
On 10 June 1994 the Association Européenne des Métaux (Eurométaux) lodged a complaint with the Commission alleging that imports of unwrought, unalloyed zinc originating from Kazakhstan, Poland, Russia, Ukraine and Uzbekistan were being dumped.

2.
Following that complaint, on 9 June 1995, the Commission published a notice of the initiation of an anti-dumping proceeding (OJ 1995 C 143, p. 12).

3.
The applicant did not make itself known within the time-limit provided for in that notice.

4.
On 25 March 1997, acting pursuant to Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (OJ 1996 L 56, p. 1), the Commission adopted Decision 97/223/EC terminating the anti-dumping proceeding concerning imports of unwrought, unalloyed zinc originating in Kazakhstan, Ukraine and Uzbekistan (OJ 1997 L 89, p. 47).

5.
On the same day, the Commission adopted Regulation (EC) No 593/97 imposing a provisional anti-dumping duty on imports of unwrought, unalloyed zinc originating in Poland and Russia (OJ 1997 L 89, p. 6; hereinafter 'the Commission Regulation).

6.
On 9 April 1997 the applicant asked the Commission for information as to factual aspects of the basis of that Regulation. It also requested a hearing.

7.
On 18 April 1997 the applicant expressed misgivings as to the soundness of the facts on which its Regulation was based, and repeated its request for a hearing.

8.
On 28 April 1997 the Commission informed the applicant that it could not be granted a hearing because it had failed to make itself known within the time-limit set in the notice of initiation of the proceeding.

9.
By letter of 4 July 1997, the Commission informed the applicant that it would after all be granted a hearing and could submit observations.

10.
On 18 July 1997 the applicant was heard by the Commission. It lodged written observations on the provisional duty Regulation. In those observations, the applicant claimed to be a Russian exporter and complained that the Commission had not sent it a copy of the questionnaire relating to the dumping investigation. It maintained that it had done business with several undertakings belonging to the complainant association and that its name had been omitted from the complaint because the members of that association wished to exclude it from the market by preventing it from defending itself properly. The applicant admitted that it had adopted a 'wait and see approach, but explained that it had been convinced that the Commission would find that there was no dumping.

11.
On 28 July 1997 the Commission disclosed to certain interested parties the essential facts and considerations on the basis of which it intended to recommend to the Council the imposition of definitive duties and the definitive collection of amounts secured by way of provisional anti-dumping duty, of which the applicant learned in due course.

12.
By fax of 31 July 1997, the Commission informed the applicant of its position regarding the latter's observations.

13.
On 31 August 1997 the applicant submitted new observations regarding the Commission's findings and conclusions.

14.
On 22 September 1997 the Council adopted Regulation (EC) No 1931/97 imposing a definitive anti-dumping duty on imports of unwrought, unalloyed zinc originating in Poland and Russia and definitively collecting the provisional duty imposed (OJ 1997 L 272, p. 1; hereinafter 'the contested Regulation). That Regulation imposed anti-dumping duty on the Russian imports at a rate of 5.2% of the net, free-at-Community-frontier price, before duty (Article 1(3)) and confirmed virtually all the findings set out in the Commission Regulation.

15.
By application lodged at the Registry of the Court of First Instance on 17 December 1997, the applicant brought the present proceedings.

16.
By a separate document lodged at the Registry of the Court of First Instance on 1 April 1998, the defendant raised a preliminary plea of inadmissibility under Article 114 of the Rules of Procedure of the Court of First Instance.

17.
On 7 April 1998 the Commission sought leave to intervene in support of the forms of order applied for by the Council.

18.
On 28 April 1998 the applicant submitted a request that certain information be treated as confidential.

19.
On 17 June 1998 the applicant submitted its observations on the preliminary plea of inadmissibility.

20.
By decision of 26 October 1998, the Court of First Instance reserved its decision on the preliminary plea for the final judgment.

21.
By order of 20 April 1999, the Court of First Instance granted the Commission leave to intervene in support of the defendant and rejected the applicant's request concerning confidential treatment.

22.
On 16 March 1999 the Court of First Instance, acting pursuant to Article 64(3) of the Rules of Procedure, requested the parties to produce certain documents and put to them a number of written questions. The parties duly complied with those measures of organisation of procedure.

23.
By letter of 17 May 1999, the applicant waived its right to lodge a reply.

24.
The Commission lodged its statement in intervention on 4 June 1999, the date on which the written procedure was closed.

25.
The parties presented oral argument at the hearing on 6 July 1999.

Forms of order sought

26.
The applicant claims that the Court should:

-annul Articles 1 and 2 of the contested Regulation in so far as they apply to the applicant;

-declare the contested Regulation void as regards the applicant;

-order the Council to take the necessary measures to comply with the Court's ruling, including by way of acting to ensure that all provisional and definitive duties which have been collected or paid in relation to the applicant are fully reimbursed together with payment of legal interest on those amounts;

-order the defendant to pay the costs.

27.
The defendant, after raising a preliminary plea of inadmissibility, contends that the Court should:

-dismiss the application as inadmissible;

-in the alternative, declare the