BIB.ORDER
T-213/97 R61997B02130012.000116121163221TORDER OF 2. 10. 1997 — CASE T-213/97 R
EUROCOTON AND OTHERS v COUNCI
Order of the President of the Court of First Instance
2 October 1997(*)
In Case T-213/97 R,
Committee of the Cotton and Allied Textile Industries of the European Union (Eurocoton), an association based in Brussels,
Ettlin Gesellschaft für Spinnerei und Weberei AG, a company incorporated under German law, established at Ettlingen (Germany),
Textil Hof Weberei GmbH&Co. KG, a company incorporated under German law, established at Hof (Germany),
H. Hecking Söhne GmbH&Co., a company incorporated under German law, established at Stadtlohn (Germany),
Spinnweberei Uhingen GmbH, a company incorporated under German law, established at Uhingen (Germany),
FA Kümpers GmbH&Co., a company incorporated under German law, established at Rheine (Germany),
Tenthorey SA, a company incorporated under French law, established at Eloyes (France),
HPG-GAT lissages, a company incorporated under French law, established at Cornimont (France),
Etablissements des Fils de Victor Perrin SARL, a company incorporated under French law, established at Thiéfosse (France),
Filatures & Tissages de Saulxures-sur-Moselotte, a company incorporated under French law, established at Saulxures-sur-Moselotte (France),
Tissage Mouline Thillot, a company incorporated under French law, established at Le Thillot (France),
Tessival SpA, a company incorporated under Italian law, established at Azzano S. Paolo (Italy),
Filature Niggeler & Kupfer SpA, a company incorporated under Italian law, established at Capriolo (Italy),
Standardtela SpA, a company incorporated under Italian law, established at Milan (Italy),
represented by Clive Stanbrook QC, and Alan Dashwood, Barrister of the Inner Temple, with an address for service in Luxembourg at the Chambers of Arsène Kronshagen, 12 Boulevard de la Foire,
applicants,Council of the European Union, represented by Marta Arpio Santacruz and Antonio Tanca, Legal Advisers, acting as Agents, assisted by Hans-Jürgen Rabe and Georg M. Berrisch, Rechstanwälte, Hamburg and Brussels, with an address for service in Luxembourg at the office of Alessandro Morbili, Director General at the Legal Affairs Directorate of the European Investment Bank, 100 Boulevard Konrad Adenauer,
defendant,APPLICATION for interim measures in connection with the Council's decision to reject the proposal submitted to it by the Commission [COM (97) 160 final, of 21 April 1997] for the adoption of a regulation imposing a definitive antidumping duty on imports of unbleached (grey) cotton fabrics originating in the People's Republic of China, Egypt, India, Indonesia, Pakistan and Turkey,
THE PRESIDENT OF THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES
makes the following
Order
Facts of the case
1Having received a complaint from the first applicant, Eurocoton, the Commission opened an antidumping procedure (notice published in OJ C 50 of 21 February 1996, p. 3) and, on 18 November 1996, adopted Regulation (EC) No 2208/96 imposing a provisional antidumping duty on imports of unbleached (grey) cotton fabrics originating in the People's Republic of China, Egypt, India, Indonesia, Pakistan and Turkey (OJ 1996 L 295, p. 3, hereinafter ‘the provisional regulation’). Pursuant to Article 3 thereof, the regulation entered into force on the day following its publication, on 20 November 1996, in the Official Journal of the European Communities and was to apply in principle for a period of six months unless the Council adopted definitive measures before the expiry of that period.
2On the basis of the information gathered, the Commission considered it appropriate to propose to the Council imposing definitive antidumping duties on those same imports (with the exception, however, of medical gauze). On 13 March 1997, it sent Eurocoton the final disclosure document setting out the essential facts and considerations on the basis of which it intended to make a proposal (Annex 2 A to the application for interim measures). Adopted on 21 April 1997 [COM (97) 160 final], it related not only to those definitive duties but also to the definitive collection (to the amount of the definitive duties) of the duties imposed by the provisional regulation.
3In a press release concerning its 2007th meeting on 21 May 1997, the Council stated: ‘Following the written procedure concerning the introduction of definitive antidumping duties on cotton fabrics originating in certain third countries which had expired on 16 May, with a negative result, the French delegation once again insisted on the need for such measures to be taken.’
4By fax of 23 June 1997, Eurocoton asked the Council to confirm in writing that it had decided to reject the aforementioned Commission proposal and to send it a copy of the decision or minutes incorporating such a decision.
5By fax of 24 June 1997 the Council replied that by written procedure which ended on 16 May 1997 it found there was no simple majority necessary for the adoption of the regulation proposed by the Commission.
6Following receipt of a second complaint which had been lodged in the meantime by Eurocoton, the Commission opened a new procedure concerning the imports in question (notice published in OJ C 210 of 11 July 1997, p. 12).
Procedure
7By application lodged at the Court Registry on 18 July 1997, the applicants brought an action under Articles 173 and 174 of the EC Treaty for annulment of the Council decision to reject the aforementioned Commission proposal and, under Articles 178 and the second paragraph of 215 of the Treaty, for an order requiring the Council to make good any damage caused to the applicants by that decision.
8By separate document lodged at the Court Registry on the same day, the applicants requested the Court:
‘1.To order that the effects of the Council's decision of 16 May 1997 be suspended provisionally and that the Council adopt, also on a provisional basis, the proposal for definitive duties put forward by the Commission, while suspending the collection of such duties (subject to the provision of security for the duties, or the registration of imports). The suspension of the Council's decision, the imposition of the definitive duties and the suspension of the latter shall be limited until judgment in the main action, or the adoption of provisional duties in the new antidumping investigation, whichever is earlier. They shall not cover retroactively the period from 16 May 1997 to the date of this order. If the Commission adopts provisional duties before the Court gives judgment, the Council shall suspend the definitive duties completely as from the date of adoption of the provisional duties and shall not release any securities held until the judgment of the Court in the main action.2.To order the Council not to release the securities provided for provisional duties pursuant to Regulation (EC) No 2208/96 until judgment in the main action.3.To order the Commission to proceed expeditiously with the new investigation and to be attentive to the need to adopt provisional measures urgently at any stage of the investigation.4.To order the Council to act expeditiously upon the submission by the Commission of any proposal for the adoption of definitive measures upon conclusion of the new investigation.5.To order the Council and the Commission to take any other necessary measures to preserve the status quo that existed immediately prior to the Council's decision to reject the Commission's proposal....’.
9In its observations submitted on 14 August 1997, the Council contended that the Court should dismiss the application for interim measures as inadmissible or, alternatively, as unfounded. Having regard to the evidence before him, the President considered that he had all the information necessary to rule on this application without there being any need beforehand to hear oral argument from the parties.
Law
10Under Articles 185 and 186 of the Treaty and Article 4 of Council Decision 88/591/ECSC, EEC, Euratom of 24 October 1988 establishing a Court of First Instance of the European Communities (OJ 1988 L 319, p. 1), as amended by Council Decision 93/350/Euratom, ECSC, EEC of 8 June 1993 (OJ 1993 L 144, p. 21) and by Council Decision 94/149/ECSC, EC of 7 March 1994 (OJ 1994 L 66, p. 29), the Court may, if it considers that circumstances so require, prescribe any necessary interim measures.
11Article 104(1) of the Rules of Procedure of the Court specifies that an application to suspend operation of any measure is admissible only if the applicant is challenging that measure in proceedings before the Court. Article 104(2) provides that applications for interim measures must state the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measures applied for. The measures sought must be provisional in that they must not prejudge the decision on the substance (see the order of the President of the Court of First Instance of 15 July 1997 in Case T-l79/97 R Dutch Antilles Government v Council [1997] ECR II-1297).
Arguments of the parties
Admissibility of the main action
12The applicants state that, according to the case-law of the Court of Justice (Case 191/82 Fédiol v Commission [1983] ECR 2913 and also Case 264/82 Timex v Council and Commission [1985] ECR 849), as complainants they have locus standi to seek annulment of the Council's decision to reject the aforementioned Commission proposal. Eurocoton, an ‘association de fait’, has lodged a complaint with the Commission on behalf of the Community industry, in accordance with 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, hereinafter ‘the basic regulation’).
13Emphasizing that the inadmissibility of the main action can entail the inadmissibility of a request for interim measures (order of the Court of Justice in Joined Cases C-66/91 and C-66/91 R Emerald Meats v Commission [1991] ECR I-1143, paragraph 32), the Council points out that the outcome of the written procedure, which ended on 16 May (see paragraphs 3 and 5 above) does not amount to a decision within the meaning of Article 173 of the Treaty. The Council refers to the efforts made subsequent to that date to persuade it to adopt the Commission proposal within the 15-month period laid down for bringing the antidumping investigation to an end (Article 6(9) of the basic regulation). It also questions the applicants' legitimate interest in obtaining annulment of the alleged decision. Once that period has expired, the Council could no longer adopt the Commission proposal.
Prima facie case
14In support of their application for annulment, the applicants contend that, at the end of the aforementioned period, the Council had no power to reject the Commission's proposal. All that the Council could do, according to the applicants, was require that the proposal be amended as to its modalities, while remaining within the limits of the findings of fact made by the Commission. Alternatively, the applicants contend that the decision to reject the Commission's proposal, if the Council did have power to adopt it, entailed a wilful disregard or manifest error of assessment of the facts found by the Commission, a breach of the complainants' procedural rights and legitimate expectations and a failure to state adequate reasons, as required by Article 190 of the Treaty.
15In support of their claim for damages, the applicants contend that, in deciding to reject the Commission's proposal, the Council committed a particularly serious breach of the law, rendering it liable for the damage caused to the applicants by that decision. It is not necessary to determine whether the Council's conduct constitutes a sufficiently flagrant violation of a superior rule of law for the protection of individuals. That injury consists of loss of sales and consequent loss of market share and loss of profit. The applicants produce (in Annex 9 to their application for interim measures) an estimate of their losses and conclude that their losses are imminently foreseeable and calculable.
16The Council does not specifically address the condition regarding a prima facie case.
Purpose and admissibility of the claim for interim measures
17According to the applicants, the purpose of the interim measures sought is to preserve the status quo existing immediately prior to the contested decision, pending the Court's decision in the main action. The most effective way of preserving the status quo would be for the Court to order suspension of operation of that decision and order the Council to adopt the proposal submitted by the Commission, in accordance with the first claim (see above, paragraph 8).
18The provisional adoption of the Commission proposal, as required above, would naturally imply that the securities obtained for the duties imposed by the provisional regulation would not be released until judgment of the Court in the main action (second claim).
19As regards those two steps, the applicants state that there is no reason why definitive duties should not be imposed, at the end of the 15-month period provided for by Article 6(9) of the basic regulation, within a reasonable time thereafter, on the basis of the investigation carried out within the first of those periods. The principle of legal certainty requires simply that any measure adopted under those circumstances should not be retroactive.
20The reason for the third and fourth claims is that the measures envisaged above will be of no use if the Commission introduces provisional measures in the context of the new investigation. The measures sought pursuant to these claims would, in the present case, be particularly appropriate since, according to press reports (Agence Europe, 12.7.1997, No 7015, p. 11), nine Member States supported the opening of the new investigation.
21Finally, the applicants point out that some of the provisional measures sought involve action by the Commission and the Court may see fit to notify the Commission of the measures, in accordance with the order in Case 23/86 R United Kingdom v Parliament [1986] ECR 1085, paragraphs 22 to 24.
22The Council considers that all five claims are inadmissible.
23As regards the claim for suspension of operation, the Council points out that the outcome of the written procedure does not constitute a decision the operation of which may be suspended. It also claims that the applicants have no interest in suspension of the effects of the alleged decision (see, as regards this requirement, for example the order of the President of the Court of First Instance in Case T-164/96 R Moeda Irme v Commission [1996] ECR II-2261, paragraphs 26 and 27). Unlike protective measures, such suspension will not protect them against the effects of the imports in question.
24In asking the Court to order the Council to adopt provisionally the proposal submitted by the Commission for the imposition of definitive duties, the applicants are seeking a measure which, in obliging exporters to raise their prices in order to finance the security which they would have to provide, would prejudge the main action and even go beyond what the applicants are seeking to obtain (mere annulment of the contested decision) and violate the division of powers between the different institutions of the Community (order of the President of the Third Chamber of the Court of Justice in Case 321/88 R Spärr v Commission [1988] ECR 6405, paragraph 9). Furthermore, a measure of that kind would, wrongly, oblige the Council (see, for example, the order in Case C-l06/90 R Emerald Meats v Commission [1990] ECR I-3377, paragraph 25) to act beyond its powers. Under Article 6(9) of the basic regulation, it no longer has the right, since 21 May 1997, to adopt the Commission proposal.
25Like the claim which has just been considered, the applicants' claim for an order requiring the Council provisionally not to release the securities for duties imposed by the provisional regulation goes beyond the scope of the main action. It is also without interest for the applicants since the Council does not hold those securities (they are in the possession of the national authorities; in accordance with Article 1(3) and (4) of the provisional regulation, under which the provisions in force relating to customs duties are applicable). Nor does the Council have the power to direct the national authorities to act in the way wished by the applicants and, irrespective of the period laid down by Article 6(9), is prevented from ordering the definitive collection of the provisional duties upon the expiry of their period of application, from which date those authorities are no longer able to keep the securities lodged. Moreover, the securities will probably have been released in the meantime. In any event, whether or not those securities are released has no impact on the price at which exporters can sell in the Community market in the time between the order requested and the final judgment in the main action.
26The claims for orders requiring the Commission to proceed expeditiously with the new investigation and the Council to act expeditiously upon the submission by the Commission of any proposal for the adoption of definitive measures upon conclusion of that investigation are inadmissible for a number of reasons. The measures thus sought are not related to the main action, which concerns an investigation prior to that concerned by those measures. Furthermore, the order sought against the Council goes beyond the scope of the main action. In both cases, the measures sought would constitute interference with a pending administrative investigation and, thus, violate the division of powers between the institutions of the Community. Moreover, they are premature and they rest on the assumption that the applicants do not have a prima facie case as regards the main action. The order sought against the Commission is rather unclear and, even if it were granted, would not give the applicants the protection which they seek. They are also asking the Court to make an order against an institution which is not a party to the case (see the order of the President of the First Chamber of the Court of Justice in Case 18/65 R Gutmann v Commission [1965] ECR 195; order of the President of the Court of Justice in Case 133/87 R Nashua Corporation v Commission [1987] ECR 2883, paragraph 7). The situation which gave rise to the order in the United Kingdom v Parliament case, cited above, is different in several respects from the situation in this case.
27Finally, as regards the fifth order requested, the Council objects that the applicants have failed to define the ‘other measures’ they envisage for maintaining the status quo which existed immediately prior to the alleged decision and to define the status quo which existed at that time. In any event, it is now legally impossible to preserve this situation since the 15-month limitation period provided for in Article 6(9) of the basic regulation has expired and the provisional regulation cannot be brought back to life.
Urgency and the balancing of interests
28The applicants consider that the Council's decision to reject the Commission's proposal ‘by the simple removal of the provisional antidumping duties’ is causing them injury. The Commission itself has made a finding that the dumped imports in question are causing injury to the Community industry. This finding was made at the stage of provisional duties (see recitals 92 to 116 of the provisional regulation), whose very purpose was to prevent further injury being caused during the investigation, and also at the end of that investigation (see sections F and G of the final disclosure document, mentioned above). In that context, the purpose of antidumping duties, whether provisional or definitive, is to redress the distortion in competition brought about by the dumping and to enable Community producers to compete on fair terms. The injury which Community producers will suffer is irreparable because its exact quantification and its distribution among the applicants would be a function of how those companies would have behaved if they had been allowed to compete among themselves and with importers on an undistorted market. They are being denied that possibility by the contested decision and, according to the applicants, no award of monetary compensation can actually put them in the situation in which they would have found themselves, in terms of financial situation, market share, etc.
29Owing also to the continuation of dumping without compensating duties, the applicants are seriously considering relocating some or all of their production outside the Community, as has already happened in the past. Such relocation is irreversible in present economic conditions and clearly not in the Community interest. Accordingly, it is appropriate for the Court to order interim measures to remove a cause of such relocation, at least until its decision in the main action.
30Such measures are also necessary to prevent the decline of the Community industry, observed between 1992 and 1995 (a period in which it embarked on closures, reduction of production and consequential reduction in employment — see recital 106 of the provisional regulation), from continuing (see recital 127 of the provisional regulation, in which the Commission states that ‘should the current trend continue, production in the Community will, within a short period of time, and despite the efforts made by the Community producers to improve efficiency, no longer be viable and will cease, or be located outside the Community, with consequent negative effects on employment’) The survival of that industry (to which belong the 2nd to 14th applicants, hereinafter ‘the applicant companies’) is therefore seriously threatened at the present time.
31The applicants also point out that it is possible for exporters to render antidumping duties ineffective by absorbing them. They also drew the Commission's attention to the fact that several importers have eluded the provisional duties by importing fabrics ‘ready for printing’ which had been washed and dyed with transient colours but were still, to all intents and purposes, unbleached.
32As regards the balancing of the interests at stake, the applicants refer to the conclusions drawn by the Commission at the end of its investigation, according to which it was in the interests of the Community to impose duties. That measure is therefore in accordance with the balance of interests prevailing within the Community. Such a balance is also safeguarded as regards exporters outside the Community, since the measures sought involve suspension of duties against the provision of security. The suspension of duties would preserve the status quo for all interested parties until judgment in the main action (as far as concerns the feasibility of this course, see the order of the President of the Court of First Instance in Case T-2/95 R Industrie des Poudres Sphériques v Council [1995] ECR II-485, paragraph 35). Finally, requiring the Commission and the Council to act expeditiously in the new investigation will not be a material inconvenience for them or for the parties concerned.
33The Council states first of all that it has not removed the antidumping duties, which it is not within its powers to do. The provisional regulation ceased to apply by virtue of its Article 3.
34The Council, next, considers that the condition relating to urgency, which it examines along with the balancing of interests, is not fulfilled.
35In order to demonstrate the necessity for interim measures for preventing serious and irreparable harm to the applicants, it is not sufficient for them to assert that, without the antidumping measures they seek, they cannot increase their prices or their market share (see, by analogy, the case-law relating to applications for suspension of operation of such measures: order of the President of the Court of Justice in Case C-6/94 R Descom v Council [1994] ECR I-867). Moreover, the interim measures applied for in this case may, according to the Council, seriously affect the rights and interests of third parties who are not parties to the proceedings (the exporters and importers of the product in question in so far as they will be affected by the cost of the antidumping duties or at least of the securities to be provided or, as far as the second requested order is concerned, of the securities provided for the provisional duties; and also processing undertakings and the final consumer), without that analysis being called in question by the Commission's finding that the imposition of definitive duties is in the interests of the Community. The Council considers that, in those circumstances, the applicants must demonstrate that, if the interim measures sought are not granted, they would be exposed to a situation liable to endanger their very existence (order of the President of the Court of First Instance in Case T-96/92 R CCE de L Société Générale des Grandes Sources and Others v Commission [1992] ECR II-2579, paragraph 40). This has not been shown either by Eurocoton in relation to the whole Community industry of unbleached cotton fabrics or by the other applicants as regards their individual situations.
36In particular, the findings on damage, drawn by the Commission at the end of the investigation, do not demonstrate the necessity for the interim measures sought in this case because the distortion of competition complained of by the applicants is inherent in the non-imposition of antidumping duties. Moreover, it would appear from the fact that in this case the applicants are seeking protective measures for remedying this distortion and thus restoring what they term fair, competitive conditions that, in their view, not having such conditions until delivery of judgment in the final action does not amount to grave and irreparable damage (see the order in Case T-2/95 R Industrie des Poudres Sphériques v Council, cited above, paragraphs 31 and 32). The argument that it is impossible to quantify the alleged damage is in contradiction to the submissions made by the applicants to show that their claim for damages is prima facie well founded (see paragraph 15 above).
37The relocation which the applicants claim is probable does not constitute damage which affects them. In itself, it does not necessarily constitute grave and irreparable damage, especially since the applicants have not produced any evidence to support their assertion that a decision to relocate would be irreversible in ‘present economic conditions’. Such a decision would lie entirely with them and there would be no causal link between their decision and the decision allegedly taken by the Council. The assertion that the applicants are giving ‘serious consideration’ to relocation does not, in any event, constitute proof of the immediate occurrence of foreseeable damage (see the order of the President of the Court of First Instance in Case T-88/94 R Société Commerciale des Potasses et de l'Azote and Entreprise Minière et Chimique v Commission [1994] ECR II-263, paragraph 39).
38By merely referring to the provisional regulation and the final disclosure document, the applicants have not demonstrated that their existence is threatened if they have to await the final judgment in the main action. The applicants and in particular the applicant companies, which could have presented specific documentary evidence on this issue, have not established that their disappearance is imminent and foreseeable.
39Finally, the Council is not in a position to verify whether the applicants' allegations concerning absorption and circumvention of the antidumping duties (see paragraph 31 above) are well founded. Moreover, those allegations cast doubt on the ability of the interim measures requested to remedy the situation complained of by the applicants.
Findings of the President
The claim for an order suspending operation of the Council's decision and requiring the Council to adopt the proposal submitted by the Commission
40As regards the injunction addressed to the Council which the applicants seek by this claim, it must be stated that, under Articles 9(4) and 10(2) of the basic regulation, it is for the Council, in accordance with the procedure laid down therein, to decide on the imposition of definitive duties and, if need be, on the definitive collection of provisional duties. In conferring this power upon it, the Community legislature has left it to the Council to decide whether and to what extent it is necessary to follow the Commission's proposal and it is not therefore obliged prima facie to adopt it in any case, as the applicants themselves would appear to accept (see paragraph 14 above). At this stage of the procedure provided for by the basic regulation, the Council therefore enjoys the broad discretion which the Community authorities have in deciding whether to adopt protective measures under that regulation (see, for example, the judgment of the Court of First Instance in Case T-162/94 N M B France and Others v Commission [1996] ECR II-427, paragraph 72) after evaluating, in particular, the interests of the Community, which involves the appraisal of complex economic situations (see, in particular the judgment of the Court of Justice in Case C-156/87 Gestetner Holdings v Council and Commission [1990] ECR I-781, paragraph 63). Without it being necessary, in these interlocutory proceedings, to determine the limits of that power of assessment of the Council, in particular in relation to the Commission's powers in undertaking the investigation, it must be stated that the order sought would, at first sight, involve an interference with that power, incompatible with the distribution of powers between the various Community institutions, and its grant cannot therefore be entertained (see the order of the President of the Court of First Instance in Case T-131/89 R Cosimex v Commission [1990] ECR II-l, paragraphs 11 and 12).
41The suspension of operation sought by the applicants concerns a negative act and this act, in particular, would not have the consequence of requiring the Council to adopt the measures sought (see the order of the President of the Court of First Instance in Case T-507/93 R Branco v Court of Auditors [1993] ECR II-1013, paragraph 21). It would thus present no interest for the applicants and cannot therefore be ordered by the President of this Court hearing an interlocutory application.
42In any event, and irrespective of the considerations which have just been set out above, the first claim must be dismissed for lack of urgency.
43It is settled case-law that the urgency of an application for interim measures must be assessed in relation to the necessity for an interim order to prevent serious and irreparable damage to the party applying for interim measures. It is for that party to prove that it cannot wait for the outcome of the main proceedings without suffering serious and irreparable damage (see, for example, the order of the President of the Court of First Instance in Case T-168/95 R Eridania and Others v Council [1995] ECR II-2817, paragraph 33).
44The applicants' allegation that it is impossible to quantify the damage caused by the distortion of competition allegedly resulting from the refusal to adopt antidumping measures cannot, in this regard, be accepted. The applicants themselves have stated, in ‘An estimate of the damage which the second to fourteenth Applicants will suffer’ (p. 16 of the application for interim measures) that the ‘loss is [...] calculable’. In Annex 9 to their application they have submitted a calculation, for each of the applicant companies, relating to the ‘estimated annual loss’. That calculation is based on a comparison between the situations prior to the imposition of provisional duties and subsequent to their imposition. According to the last sentence of that document, ‘[t]he exact amount’ of the losses allegedly caused to them by the Council's decision ‘can be determined in the future by analysing future economic and accounting data’. It follows that, by the applicants' own accounts, it is quite possible to put on the situation of ‘distorted competition’ of which they complain precise figures allowing the damage caused by that situation to be evaluated. It must be added that the proposal which the applicants wish to have adopted by the Council (see paragraph 2 above) contains precise figures as regards the amount of proposed duties (see Article 1(2) of that proposal), together with calculations for determining the amount necessary for eliminating the damage suffered, according to the Commission, by the Community industry (point 152 et seq. of the proposal; see, as regards that calculation, the last sentence of Article 9(4) of the basic regulation). It would therefore appear from all those considerations that it is possible for each Community undertaking concerned to determine with sufficient precision what its situation would be if the Council had adopted the Commission's proposal and thus to quantify the damage caused to it, during a given period, by the Council's decision so as to enable appropriate financial compensation to be granted if necessary (see, as regards similar cases, the order of the President of the Court of Justice in Cases C-51/90 R and C-59/90 R Cosmos-Tank and Others v Commission [1990] ECR I-2167, paragraph 31; orders of the President of the Court of First Instance in Industrie des Poudres Sphéňques v Council, cited above, paragraph 32, and in Dutch Antilles Government v Council, cited above, paragraphs 37 and 47). In those circumstances, it must be concluded that the alleged damage, which can ultimately be the subject of financial compensation, is of a purely pecuniary nature and therefore cannot, in the absence of exceptional circumstances, be regarded as irreparable or even as being reparable only with difficulty (see the order in Case T-l68/95 R Eridania and Others v Council, cited above, paragraph 42).
45It must be added that the change in the competitive situation which, according to the applicants, arises from the non-adoption of antidumping measures is not at first sight irreversible since, according to the applicants' own statements, the adoption of such measures, which is the ultimate aim of their action for annulment, would restore fair competition.
46As regards, next, the possibility that the Community undertakings might ‘relocate’ all or part of their production outside the Community, the President finds that, on the face of it, the aim of such a step would be to lower the costs of production. Such a decrease in costs would not, in itself, constitute damage for the undertakings concerned. Indeed, the interest which the applicants are relying on in this context is the ‘Community interest’. In this regard, it is clear from point 127 of the provisional regulation that this interest is linked to the level of employment within the Community. In order to establish the urgency of their application, the applicants cannot simply rely, as individual undertakings in the textile sector or as an association responsible for protecting the collective interests of those individual undertakings, on interests which would not reflect their own (see the order of the President of the Court of Justice in Case 12/64 R Ley v Commission [1965] ECR 107, 132) or, specifically as regards the association, on interests which would not at any rate correspond, depending on the case, to those which it is called upon to protect (see the order of the President of the Second Chamber of the Court of Justice in Joined Cases 209/78 R to 215/78 R and 218/78 R Van Landewyck and Others v Commission [1978] ECR 2111, paragraphs 2 and 3). It is for the judge hearing the interim application to take account of other interests involved, for example the interest in the maintenance of employment (see the order of 3 June 1996 in Case T-41/96 R Bayer v Commission [1996] ECR II-381, paragraphs 58 and 59), in determining whether there are grounds for granting the interlocutory application. In any event, the applicants have not adduced any hard evidence allowing an evaluation to be made of the seriousness of the alleged relocation plans, their relation to the contested decision or the extent to which such plans would be carried through, in all probability, before the foreseeable date of the final judgment in the main action.
47As regards the assertion that the survival of the Community industry is threatened, the applicants have likewise not provided evidence to support the grant of interim measures. They have not produced any economic or accounting data concerning the undertakings belonging to the industry concerned enabling the judge hearing their interlocutory application to make a sufficiently well-founded prognosis himself as regards the possibilities of survival of one or more of those undertakings until the time when judgment is given in the main proceedings (see the order of the President of the Court of Justice in Case 809/79 R Pardini v Commission [1980] ECR 139, paragraph 9; order of the President of the Court of First Instance in Case T-84/96 R Cipeke v Commission [1996] ECR II-1313, paragraph 45). Although the Commission mentions, in the provisional regulation (point 127, cited above, paragraph 30), in its final information document (Annex 3, p. 5) and in its proposal which is the subject of the contested decision (point 100 of that proposal), a risk that the ‘Community industry’ might disappear, that statement does not allow any judgment to be made in these proceedings, which are designed to protect only the interests of the applicants taken individually, of the particular situation of each of the undertakings concerned or of the period of time in which the decline referred to could lead to the insolvency of a particular undertaking, without the undertaking being itself able to take measures to prevent this extreme outcome. On this last point, it must also be observed that, in its provisional regulation (point 127, cited above), the Commission referred to the Community industry's closing down and its relocation (see, in this regard, paragraph 45 above) as alternative possibilities. The calculations set out in Annex 9 to the application for interim measures refer only to a loss of profit which non-adoption of antidumping measures would allegedly cause for the applicant companies and do not allow any forecast to be made as regards their chances of survival if such measures are not taken. Finally, Eurocoton has not identified any serious and irreparable damage which would threaten the association itself as a result of the Council's conduct.
48As regards the risks of antidumping duties being absorbed or evaded, it is sufficient to state that neither the aim of the claim for the adoption by the Council of the Commission's proposal nor indeed the aims of the other claims would appear at first sight to be capable of preventing such practices or neutralizing their consequences.
49It follows that the applicants' arguments concerning urgency must be dismissed in their entirety. This entails dismissal of the first claim.
The other claims
50The other claims must also be dismissed because the applicants have not put forward any separate arguments to show that they fulfil the condition of urgency.
51It must also be stated that the purpose of the second claim, for an order requiring the Council not to release the securities provided for provisional duties, is to obtain from the Council a measure which, whilst retaining provisional character, would be akin to adoption of the Commission's proposal in so far as the proposal envisages the definitive collection of the provisional duties (see the explanations given by the applicants in paragraph 18 above). Consequently, the considerations set out above with regard to the first claim (paragraphs 40 and 41) also apply to this part of the application for interim measures.
52Contrary to what is required by the second subparagraph of Article 104(1) of the Rules of Procedure of this Court, the third and fourth claims do not relate to any case pending before this Court. The new investigation to which those claims relate (see paragraph 6 above) bears no relation to the main action whose purpose, both in its claim for annulment and its claim for damages, is to obtain a remedy for a situation created, according to the applicants, by an act which preceded that investigation.
53Finally, the fifth claim does not explain in detail the measures sought and does not therefore satisfy Articles 104(3) and 44(1 )(d) of the Rules of Procedure.
54It follows from all those considerations that the conditions enabling the measures sought to be granted in law are not fulfilled and that this application must therefore be dismissed without its being necessary to consider the other aspects raised by the parties regarding, in particular, the admissibility of the main action or whether that action is prima facie well founded.
On those grounds,
THE PRESIDENT OF THE COURT OF FIRST INSTANCE
hereby orders:
- 1.The application for interim measures is dismissed.
- 2.The costs are reserved.