Judgment of the Court of 4 October 1983.

A — The applicant's capacity to institute proceedings

The Commission contends that the Federation is not a legal person according to the law of one of the Member States but an association without legal capacity having its registered office in Belgium. On a strict interpretation of the second paragraph of Article 173 of the EEC Treaty it has no right to institute proceedings or to appear in court.

Nevertheless, takings account of the powers of a procedural nature given by Regulation No 3017/79 to associations lacking legal personality but acting in the name of a Community industry, it would be illogical to refuse such an association the right to bring an action; it is therefore appropriate to give a broad interpretation of the concept of “legal person” within the meaning of the second paragraph of Article 173 of the EEC Treaty.

The applicant, being the defendant in relation to the objection of inadmissibility, for its part considers that in accordance with the generally accepted principle of examining the reality of the situation all combinations which are recognized by law and vested with certain powers, particularly combinations able to express a collective intent in the defence of interests which are legally recognized and protected have in principle legal personality and the capacity to institute legal proceedings.

In any case Article 5 (1) of Regulation No 3017/79 gives “any association not having legal personality” acting on behalf of a Community industry the right to lodge a complaint; it necessarily follows that such an association has the capacity to institute proceedings under the second paragraph of Article 173 of the Treaty.

B — The question whether the contested communication is an act of the Commission

The Commission admits that the contested communication (regardless of its legal nature) must be attributed to it as an institution although it was only signed by an official; it was certainly a communication issued in the name of the Commission of the type provided for in Article 5 (5) of Regulation No 3017/79.

The applicant considers that the letter of 25 May 1982 does indeed amount to a decision of the Commission with regard to the request to initiate a proceeding.

C — The question whether the contested communication is a decision within the meaning of the second paragraph of Article 173 of the Treaty

The Commission is of the opinion that, in order to constitute a decision within the meaning of the second paragraph of Article 173 of the Treaty, it is not sufficient for a communication to have some legal effect; it must have binding legal effect so that it brings about a distinct change in the applicant's legal position: it is not sufficient if his interests are simply infringed.

Thus it is necessary to decide whether the communication sent to the applicant on 25 May 1982 was such as to have such a specific legal effect. The answer is not to be found in the external form of the measure or in its apparent content but in the purpose of the compensatory procedure, regard being had to the applicant's position in relation to the whole proceeding.

1. With regard to the purpose of the communication it must be stated that the Commission, pursuant to Article 5 (5) of Regulation No 3017/79, informed the Federation on 25 May 1982 that its request for the initiation of a new anti-subsidy proceeding against Brazil did not contain sufficient evidence to justify the commencement of an investigation. That decision was based essentially on the working document annexed to the letter of 5 February 1982; the information provided was therefore a matter of substance.

   The communication did not go beyond the information provided for in Article 5 (5) : it did not contain any decision since no such act was provided for or covered by that provision. It cannot be conceded that the reference to that provision simply concealed the real nature of the communication and that the legal basis for it must be found in Articles 5 (2), 7 (1) and 9 of Regulation No 3017/79 or in the principles of legal certainty and legal clarity.

   It is true that the regulation is silent on the matter of the rejection of a request for the initiation of a proceeding. However, the Community legislature deliberately abstained from including such formal rules governing the termination of the preliminary procedure; it is not possible to deduce from the right to lodge a complaint within the meaning of Article 5 (1) and (2) a right to a formal decision capable of being subject to review by the Court. The fact that it is possible to initiate an official investigation does not, in any case, mean that the preliminary procedure which it follows must be terminated by a decision. The general principles of law by no means require such a decision; they may, at best, lead the Community institutions to provide for a formal closure of the procedure in general or to undertake it in a specific case. Such a step cannot be the subject of an action such as has been brought in this case for a declaration that it is void under Article 173; furthermore the action before the Court has not been brought under Article 175.

2. With regard to the legal nature of the information provided for in Article 5 (5) of Regulation No 3017/79 it should be remembered that:

   • The communication sent to the applicant on 25 May 1982 constituted the information provided for in Article 5 (5) of the regulation and did not contain any other decisions going beyond the content thereof;

   • Whilst the information indeed contained a declaration of intent on the part of the Commission that it was not proposing to initiate an official investigation within the meaning of Article 7 at that time, it was nevertheless not a decision capable of being challenged within the meaning of the second paragraph of Article 173 of the Treaty.

   The Court's case-law with regard to competition provides hardly any assistance in this context; only the statements contained in its judgment of 18 October 1979 (Case 125/78 GEMA [1979] ECR 3173) could be considered to any degree. The fact that a complaint does not result in the action desired does not seem to be of a more definitive nature in an antidumping proceeding than in connection with an infringement of competition rules; furthermore there are no reasons to regard the legal position of a complainant as stronger under Regulation No 3017/79 than under the law relating to agreements, decisions and concerted practices.

   It follows by implication but clearly from several provisions of Regulation No 3017/79 (Articles 5 (4) and (6), 6 (1), 7 (7) (a) and 11) that the Commission may, as is provided for, furthermore, in Article 2 of the GATT Anti-Dumping Code, commence a compensatory proceeding without a prior complaint having been made to it.

   The information given pursuant to Article 5 (5) certainly expressed the Commission's intention not to initiate an official proceeding within the meaning of Article 7 at that time in the situation obtaining; however, the discontinuance of the proceeding is not final: the Commission may if it thinks fit at any time re-examine the evidence provided by the complainant.

   At that stage there cannot yet be a formal proceeding properly so called; at best there is a preliminary examination or proceeding and if, following the consultations provided for in Article 6, the examination is not continued it is not possible to speak of the “termination of the procedure”.

   The complainant's interests are, without doubt, affected by the expression of the Commission's intention not to initiate an official proceeding at that time; however the only decisive question is whether the fact that the interests have been affected in such a manner may be regarded as a distinct change in the complainant's legal position and whether it is necessary, consequently, to recognize that he has a legally enforceable right to have an official investigation initiated if “sufficient evidence” within the meaning of Article 5 (2) has been provided.

3. With regard to the complainant's legal position in the context of the compensatory rules the question is essentially whether Community law gives him a right to the adoption of protective measures. In fact it does not.

   According to Article 3 (1) of Regulation No 3017/79 a countervailing duty may be imposed for the purpose of offsetting a subsidy; the institution therefore remains free to decide whether or not to adopt such measures.

   Article 7 (9) of the regulation provides that a proceeding is concluded either by its termination or by definitive action. The complete absence of any rules governing the question whether, when and under what conditions definitive measures must be adopted indicates that the Community legislature intended to leave the relevant institution a free hand in that field.

   There is nothing automatic about the adoption of definitive measures in the case of injury caused by dumping or subsidization. Definitive measures are to be adopted only if “the interests of the Community call for Community intervention” (Article 12 (1) of the regulation); the relevant institutions therefore have a very wide discretion with regard to policy in defending the interests of the Community and in balancing opposing interests. In this case it is not just a question of balancing the interests of consumers and producers but of resolving much more complex conflicts of interest and, above all, of taking into account the compelling requirements of trade relations with the non-member country in question. When considering whether definitive measures must be adopted the Community institutions ought to have an unlimited discretion free from review by the Court. The phrase “Where ... the interests of the Community call for... intervention” is too vague for it to be possible to deduce therefrom legal criteria capable of being the subject of judicial review.

   To recognize that the complainant has a right to challenge before the Court a decision of the institutions refusing to take action against an exporting country would risk calling in question the results obtained by means of negotiation.

   All definitive measures adopted under Regulation No 3017/79 are, by their nature, protective measures falling with the field of commercial policy, even if they serve to protect national production and therefore also coincide with the interests of an individual. It is for the legislature to decide whether, in the light of such personal interests, it intends the persons affected to be empowered to bring an action, in whatever form, against the decisions of the political authorities in that sector; in the area to which Regulation No 3017/79 applies it has not done so.

   In granting a right of complaint the legislature certainly did not intend to give the relevant business circles a right to bring an action but intended, as in the case of classic protective measures in the area of commercial policy, simply to give them the formal opportunity to make their opinion known to the Community authorities.

   It is not possible to base any argument on the fact that such a right of action exists in other legal systems. GATT and in particular its code on subsidies leaves completely open the question of how to ensure observance at national level of the rules of conduct applicable in international law.

   If a complainant has no right to require the Community to adopt protective measures against a non-member country then he cannot have a right to the initiation of an official investigation either.

   The recognition of such a purely procedural right does not give the complainant any benefit in the legal sphere except the opportunity to produce to the Commission additional evidence which might, in an appropriate case, alter its attitude; the existence of that opportunity is, however, insufficient to change the complainant's legal position.

   Moreover, the probable effect of the recognition of such a right would be to subject the subsequent conduct of the competent authority to judicial review as well, at least in part: the right to the initiation of a proceeding would hardly be consistent with the grant to the Commission or the Council of an absolute discretion to arrive at a decision; at the very least it would imply review of any misuse of power and involve a significant restriction of the discretion of the Community institutions.

   The initiation of an official proceeding is itself a measure which is not without effect on trade and relations with the non-member country in question; it is therefore for the political institution responsible for commercial-policy to decide whether it is appropriate to initiate a proceeding having such effects. That is particularly the case in relation to compensatory measures.

   The idea that the Commission, which is the political institution having responsibility at the preliminary stage, is able to refuse to initiate and conduct an official investigation if such is not in the Community interest and that in that respect it possesses a discretion which is not subject to review by the court, is consistent with Articles 5 and 7 of Regulation No 3017/79 even in the absence of an express reference in Article 5 (5) to the interests of the Community being taken into account. Apart from requirements as to admissibility, Articles 5 (5) and 7 (1) require the complaint to provide sufficient evidence “to justify initiating a proceeding”; the Commission must therefore check that all the circumstances of the case, not only the aspects of dumping, subsidy and injury but also all other relevant circumstances and in particular the general interests of the Community, justify the initiation of an investigation. Above all it must be entitled to refuse to initiate a proceeding where it is convinced that, at the stage of a preliminary investigation, it would not be in the interests of the Community to adopt definitive measures.

   The intervention of the Member States in that preliminary examination in the context of the consultations prescribed in any event is justified by the fact that the question of what is appropriate in the circumstances must be taken into account, as is shown in particular by Article 6 (4) (d) of the regulation.

   The fact that the complainant is thus deprived of all legal protection against the Commission or the Council in relation to anti-subsidy legislation cannot alter the fact that the protective measures in question are, by their nature, measures falling exclusively within the area of commercial policy which are adopted, as are all measures provided for in Article 113 of the EEC Treaty, primarily in the general economic interest and prevail over the interests of individuals. The fact that the protective measures are intended to safeguard Community industiy is not sufficient to give them a substantially different nature.

   There is no provision of Community law which categorizes export subsidies granted by non-member countries as “illegal”; the relevant matter is the objective circumstances, falling within the domain peculiar to the non-member country in question, to which it is possible to react through the instruments of commercial policy permitted by GATT. In that respect there is a substantial difference as against competition law, in the context of which measures which have the effect of distorting competition must, in fact be categorized as illegal; it is therefore not surprising that, in contrast to competition law, antidumping and anti-subsidy legislation does not, in the last resort, grant any protection to the persons affected by the conduct of third parties.

   The references to GATT and its code concerning subsidies do not apply in this case: the introduction of countervailing duties is not a necessary and automatic reaction to subsidies which do not conform to GATT and the provisions in question amount for the contracting parties to obligations under international law which, according to the Court's case-law, do not have direct effect in Community law.

4. Finally, the relevant provisions of Regulation No 3017/79 must be interpreted in the following manner:

   • Any complaint satisfying the conditions laid down in Article 5 (3) must be examined by the Commission in the context of the consultations provided for in Article 6;

   • After such examination the Commission has the opportunity either to initiate the official proceeding provided for in Article 7 or not to initiate such a proceeding “in the circumstances” and to inform the complainant thereof in accordance with Article 5 (5);

   • The complainant is entitled to be so informed and may, in default, bring the action provided for in the second paragraph of Article 175 of the Treaty for failure to act;

   • The complainant nevertheless has no right to force the Commission to initiate an official proceeding; accordingly a decision not to proceed pursuant to Article 5 (5) may not be challenged under the second paragraph of Article 173 of the Treaty.

The applicant considers the communication of 25 May 1982 to be a definitive decision which brings to an end the complaints procedure within the meaning of the third paragraph of Article 189 of the EEC Treaty, which expresses the Commission's refusal to initiate an anti-subsidy proceeding and which affects his rights; such a decision is capable of being the subject of proceedings under the second paragraph of Article 173 for a declaration that it is void.

1. The communication constitutes the Commission's definitive decision on the complaint of 2 April 1980: it was in that communication that the Commission, after it had adopted a provisional attitude more than once, expressed its view in an unequivocal and definitive manner and in a form which made it possible to identify its nature. By that decision the request made by the Federation was rejected and the first essential stage of an-anti-subsidy proceeding was brought to a negative conclusion because the grounds and evidence presented by the Federation were not considered to be sufficient to justify the initiation of a proceeding. The Commission's undertaking to “continue to watch developments in the situation carefully” is irrelevant.

   The declaratory nature of the contested communication is quite clear: the Commission refused, formally and definitively, to initiate an anti-subsidy proceeding despite the request contained in the complaint; the preliminary procedure was in fact brought to an end by a decision; without such a decision the applicant would have brought an action under Article 175 of the Treaty for a failure to act.

   The contested decision is not merely informative: its alleged informative nature is restricted to the fact that the Commission referred, formally and erroneously, to Article 5 (5) of Regulation No 3017/79; in substance it does not amount according either to its contents or to its function, to the provision of information within the meaning of that provision.

2. It follows from the whole of the scheme laid down by Articles 5 to 7 of Regulation No 3017/79 that the preliminary procedure is brought to an end by a decision within the meaning of the second paragraph of Article 173 of the Treaty.

   The preliminary procedure was separate from an investigation properly so called (Articles 7 to 9 of the regulation); they are two independent phases, each subject to very specific conditions.

   The independent nature of the procedure for lodging a complaint is not weakened by the fact that, according to the anti-subsidy code, the Commission may act in the absence of a complaint: the Community legislature has not laid down in Article 5 of Regulation No 3017/79 in precise terms such a right on the part of the Commission to act on its own initiative, thus showing the importance attached to a complaint emanating from the industry in question. The requirement that a complaint be lodged arises from the urgent need to protect the Community in question, which is in the best position to decide whether it is suffering damage, to determine its cause and to assess its effects.

   The position is completely different from that found in the field of competition: there the Commission is under a duty, in its capacity as guarantor of competition, to establish infringements of Articles 85 or 86 of the Treaty and to require the undertakings to bring to an end the infringements so established; moreover, with regard to the anti-dumping procedure it is necessary, in order to be able to request the initiation of a proceeding, to prove damage on the basis of very specific criteria and not only to prove the mere existence of a legitimate interest.

   The preliminary procedure must necessarily be terminated by a formal decision providing for either the commencement or the renunciation of a proceeding. The need for a formal decision arises all the more from the fact that the relevant provisions lay down not only the conditions for lodging a complaint but also the rules governing the course of the procedure.

   It is incorrect to maintain that the Community legislature has voluntarily abstained from providing formally for the termination of the preliminary procedure: Regulation No 3017/79 refers expressly to two possibilities, namely the initiation of a proceeding (Article 7 (1)) and its termination (Article 5 (4)). The view that the Commission may at any time re-examine the evidence submitted in the complaint is incorrect and somewhat theoretical: anti-dumping and compensatory proceedings presuppose up-to-date evidence of dumping or subsidization as well as of the injury suffered during a specific period; since the Commission is unable to act on its own initiative it may at the most request the complainant to bring the complaint up-to-date or to lodge a fresh one.

   In that respect it is not possible to base any argument on the decision in the GEMA case: in this case a decision has been adopted by the Commission and, furthermore, anti-dumping proceedings, unlike proceedings in respect of agreements, decisions and concerted practices, require a complaint, supported comprehensively by reasons, the receipt of which by the Commission constitutes the commencement of the first stage of the formal procedure.

3. The rejection of a request to initiate an anti-subsidy proceeding jeopardizes the legal position of the whole European oil-processing industry, on behalf of which the complaint was lodged.

   That damage consists first of its being deprived of the right to have established, by an investigation conducted by the Commission, whether the conditions explained in a convincing manner and proved at least prima facie do in fact exist and must lead to protective measures within the meaning of Articles 10, 11 and 12 of Regulation No 3017/79. That denial of justice is all the greater since the Commission alone has the power to carry out the necessary investigations and it alone has the opportunity to collect the necessary information and to place it in a wider context. By the unjustified refusal to initiate an investigation the complainant is deprived of all the procedural guarantees provided for by Article 7 of the regulation before the Commission adopts the decision to terminate the proceeding if it appears that protective measures are unnecessary.

   The refusal to initiate a proceeding in the given circumstances amounts a priori to a refusal to adopt protective measures unless the Commission has acquainted itself, on the basis of its own investigations, with the existing subsidy and its effects. The termination of the preliminary procedure is not therefore “justified” within the meaning of Article 7 (1) of the regulation.

   The protection given with regard to procedure conditions the protection granted by the substantive provisions and guaranteed by the provisions of constitutional law of which an industry and the undertakings belonging to it ought to have the benefit against subsidies which cause them injury.

   State subsidies must be regarded as illegal at least in those cases where they cause injury. By analogy with Article 92 of the EEC Treaty and with regard to the anti-subsidy code of GATT the contested subsidies are illegal measures from the point of view of public international law and this accordingly justifies the imposition of a countervailing duty. The subsidies are, at the same time, the cause of injury suffered by the oil-processing industry as Community producers and the injury is known to the Commission. The purpose of Regulation No 3017/79 is to prevent, by means of anti-subsidy measures, interference, such as that suffered in this case by the Community oil-processing industry, with the existence of and the right to engage in a commercial activity organized by the undertakings in question. The refusal to initiate an anti-subsidy proceeding deprives formal and substantive rights of any protection.

   The Commission's argument that the protective measures are, according to their nature in law, “measures belonging exclusively in the area of commercial policy ... adopted essentially in the general economic interest” is not acceptable. A “Community industry” (Article 4 of Regulation No 3017/79), comprising all the producers of similar products in the Community, lies at the centre of the anti-dumping and compensatory proceeding. Requests for the initiation of a proceeding must be lodged on behalf of a Community industry and the injury must be determined by reference to the Community industry in question. The specific implementation of protection against injurious subsidies by the GATT Code and Regulation No 3017/79 which is based on it quite deliberately reduced the aspects concerned with commercial policy and the general economic interest to a great degree; that is confirmed by the fact that the right to lodge a complaint is granted in the first place to the industry in question. The purpose of Regulation No 3017/79 in giving protection therefore requires the industry concerned to benefit from a strong legal position and formal rights in the proceedings following the complaint.

   The need to bring to an end by a decision the proceeding commenced by a complaint, the legal position of complainants and the purpose of the regulation in giving protection oblige the Commission to adopt a decision. In this case the decision was adopted definitively and irrevocably in the form of the communication of 25 May 1982; inasmuch as it refuses to initiate an investigation the decision is also capable of being the subject of an action under the second paragraph of Article 173 of the EEC Treaty.

   With regard to the complainant's right to the adoption of protective measures it is necessary to state first that the present procedure does not relate to such measures; the question of protective measures only arises, furthermore, when the Commission has initiated an investigation and has proceeded to carry out its own investigations and inquiries. The subject of this action is the Commission's refusal to initiate an investigation.

   In any case, by refusing to initiate an investigation on the ground that the applicant has no right to the adoption of protective measures, the Commission is prejudging a decision which is absolutely incapable of being adopted before it has carried out its own investigations and which, in the final analysis, falls within the Council's competence.

   The basic provision concerning the termination of an investigation is Article 9 (1) of Regulation No 3017/79. According to that provision a compensatory proceeding is only to be terminated if it is apparent that “protective measures are unnecessary”; in fact that is only the case if the Commission's investigations have shown that the necessary conditions (subsidies, damage, causal relationship) are absent. It is not possible to speak in that respect of a free discretion.

   Moreover the Commission may only decide to terminate an investigation if no objection has been expressed in the Advisory Committee on Protection against Dumped or Subsidized Exports. The Commission's view encroaches on the powers of the Member States and of the Council, which are able to come to a decision on the need for protective measures only on the basis of the inquiries conducted by the Commission in the course of an investigation.

   In the case of a damaging subsidy there is a right to the adoption of protective measures. According to the Court's case-law the undertaking carrying out live dumping or the State granting a subsidy has a right to take legal action against protective measures adopted in the form of an anti-dumping or countervailing duty; the Community industiy which is injured by the dumping or subsidization must, all the more, have the right to require the competent Community institutions, after the facts have been established, to adopt the necessary protective mesures. Regulation No 3017/79 was adopted in order to protect the industry in question; the Commission might destroy the right to the adoption of the measures necessary to provide that protection if it refused, despite the existence of a complaint supported by convincing evidence, to initiate an investigation and therefore determine the facts.

   In addition, the existence of a “discretionary power free from review by the Court” with regard to the decision whether to initiate and conduct an investigation cannot be deduced from the concept of “Community interest”.

   In contrast to Article 12, Article 7 of the regulation, which lays down the conditions for the initiation and conduct of an anti-subsidy proceeding, makes no reference to the concept of Community interest. When adopting a decision concerning the termination of the preliminary procedure the Commission must therefore restrict itself to considering whether there is “sufficient evidence” within the meaning of Article 5 (2) of the regulation; if so, the initiation of a proceeding is not only justified but also necessary.

   The course of the investigation, as provided for in Article 7 of Regulation No 3017/79, shows that the concept of “Community interest” acquires importance only after the proceeding has been initiated and the investigation carried out.

   The concept of “Community interest” is of little actual importance in antidumping and compensatory proceedings. The decisions of the Community institutions in such proceedings to the present time have, in a manner of speaking, involved practically no specific consideration of the Community interest; the Commission has always been concerned to apply the law strictly, that is to say to decide on protective measures when the necessary conditions (subsidies, injury and causal relationship) were present.

   The Commission's arguments in that connection are very general and theoretical: it does not cite any specific reason for refusing, from the point of view of the Community interest, the initiation of a compensatory proceeding against the importation of soya-bean oilcake from Brazil. Its purpose is, in fact, to obtain judicial recognition of a discretionary power free from control by the Court in relation to the initiation of a compensatory proceeding. This case shows how dangerous such recognition would be for the protection of the applicant: the Commission has already established in 1977 that Brazil had paid illegal subsidies and it has twice failed to fulfil its promise to abolish them. In those circumstances to refuse the applicant the legal protection it is entitled to by invoking the Community interest would make a mockery of the principle of a fair procedure which is derived from the principle of legality.

   Considerations of commercial policy may certainly be taken into account in the decision-making process in the context of the concept of “Community interest”; however, they ought not be pleaded in order to give preference to the maintenance of good relations with a trading partner over the interests of the Community industry which is suffering injury. Brazil, which is a party to the Agreement on Interpretation and Application of Articles VI, XVI and XXIII of GATT, knows the rights and duties arising therefrom and cannot object to a compensatory proceeding conducted by its commercial partners in accordance with the rules of that Agreement. Regard being had to Brazil's conduct, the Commission and the Council need be in no way constrained; the Commission has, furthermore, adopted a very different attitude to the same country in other sectors.

   Anti-dumping and anti-subsidy proceedings certainly constitute measures to protect trade according to the scheme of the EEC Treaty; however, specific expression has been given to such measures to protect trade in the form of special codes made under GATT, in particular in order to reinforce rights and obligations of the industry in question.

   In the context of the interpretation of Regulation No 3017/79 it is essential to take into account, according to the fifth recital in the preamble thereto, the practice of the other contracting parties to GATT and especially of the United States of America; in fact such States allow the industry affected wide powers to bring an action.

4. To regard the Commission's letter of 25 May 1982 as a decision which is capable of being the subject of legal proceedings corresponds to the requirements of legal protection properly understood and to a precise application of the rules governing anti-dumping and anti-subsidy proceedings. If that should not be the case it would be simple for the Commission to decide, internally, without being bound by law and without the protection of the Court, which proceedings to accept and which to reject. However, no such discretion is given to it by Articles 5 to 7 of Regulation No 3017/79.