CELEX: 62018CJ0144
Appeal
Dumping
Definitive anti-dumping duty on imports of certain prepared or preserved sweetcorn in kernels originating in Thailand
Interim review pursuant to Article 11(3) of Regulation (EC) No 1225/2009

By its appeal, River Kwai International Food Industry Co. Ltd (‘River Kwai’) seeks to have set aside the judgment of the General Court of the European Union of 14 December 2017,
AETMD
v
Council
(T‑460/14, not published, EU:T:2017:916; ‘the judgment under appeal’), by which that court annulled Council Implementing Regulation (EU) No 307/2014 of 24 March 2014 amending Implementing Regulation (EU) No 875/2013 imposing a definitive anti-dumping duty on imports of certain prepared or preserved sweetcorn in kernels originating in Thailand following an interim review pursuant of Article 11(3) of Regulation (EC) No 1225/2009 (OJ 2014 L 91, p. 1; ‘the regulation at issue’).

Legal context
Article 6 of Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (OJ 2009 L 343, p. 51; ‘the Basic Regulation’), applicable at the material time, entitled ‘The investigation’, provided in paragraph 7:
‘The complainants, importers and exporters and their representative associations, users and consumer organisations, which have made themselves known in accordance with Article 5(10), as well as the representatives of the exporting country may, upon written request, inspect all information made available by any party to an investigation, as distinct from internal documents prepared by the authorities of the Community or its Member States, which is relevant to the presentation of their cases and not confidential within the meaning of Article 19, and that it is used in the investigation. Such parties may respond to such information and their comments shall be taken into consideration, wherever they are sufficiently substantiated in the response.’
Article 10 of that regulation, entitled ‘Retroactivity’, provided in paragraph 1:
‘Provisional measures and definitive anti-dumping duties shall only be applied to products which enter free circulation after the time when the decision taken pursuant to Article 7(1) or 9(4), as the case may be, enters into force, subject to the exceptions set out in this Regulation.’
Article 11 of that regulation, entitled ‘Duration, reviews and refunds’, provided in paragraph 3:
‘The need for the continued imposition of measures may also be reviewed, where warranted, on the initiative of the Commission or at the request of a Member State or, provided that a reasonable period of time of at least one year has elapsed since the imposition of the definitive measure, upon a request by any exporter or importer or by the Community producers which contains sufficient evidence substantiating the need for such an interim review.
An interim review shall be initiated where the request contains sufficient evidence that the continued imposition of the measure is no longer necessary to offset dumping and/or that the injury would be unlikely to continue or recur if the measure were removed or varied, or that the existing measure is not, or is no longer, sufficient to counteract the dumping which is causing injury.
In carrying out investigations pursuant to this paragraph, the Commission may, inter alia, consider whether the circumstances with regard to dumping and injury have changed significantly, or whether existing measures are achieving the intended results in removing the injury previously established under Article 3. In these respects, account shall be taken in the final determination of all relevant and duly documented evidence.’
Article 19 of the Basic Regulation, entitled ‘Confidentiality’, provided in paragraph 2:
‘Interested parties providing confidential information shall be required to furnish non-confidential summaries thereof. These summaries shall be in sufficient detail to permit a reasonable understanding of the substance of the information submitted in confidence. In exceptional circumstances, such parties may indicate that such information is not susceptible of summary. In such exceptional circumstances, a statement of the reasons why summary is not possible must be provided.’
Article 20 of that regulation, entitled ‘Disclosure’, provided in paragraphs 1 and 2:
‘1.      The complainants, importers and exporters and their representative associations, and representatives of the exporting country, may request disclosure of the details underlying the essential facts and considerations on the basis of which provisional measures have been imposed. Requests for such disclosure shall be made in writing immediately following the imposition of provisional measures, and the disclosure shall be made in writing as soon as possible thereafter.
2.      The parties mentioned in paragraph 1 may request final disclosure of the essential facts and considerations on the basis of which it is intended to recommend the imposition of definitive measures, or the termination of an investigation or proceedings without the imposition of measures, particular attention being paid to the disclosure of any facts or considerations which are different from those used for any provisional measures.’

Background to the dispute
It is clear from the judgment under appeal that the Council of the European Union adopted the regulation at issue following a request for a partial interim review concerning the dumped products. That request was made by River Kwai, a Thai exporting producer.
By the regulation at issue, the Council reduced the rate of the anti-dumping duty applicable to River Kwai from 12.8% to 3.6%.

The procedure before the General Court and the judgment under appeal
By application lodged at the Court Registry on 18 June 2014, the Association européenne des transformateurs de maïs doux (AETMD), an association representing the interests of the sweetcorn processing industry in the European Union, brought an action for the annulment of the regulation at issue.
By order of 8 January 2015, the President of the Third Chamber of the General Court granted River Kwai leave to intervene in support of the form of order sought by the Council.
In support of its action, AETMD raised four pleas in law. The fourth plea, which was the only plea examined by the General Court, alleged, inter alia, infringement, to the detriment of the applicants and their representative associations, of the procedural guarantees provided for in Article 19(2) and Article 20(2) of the Basic Regulation.
By the judgment under appeal, the General Court upheld that plea and annulled the regulation at issue.

Forms of order sought
River Kwai claims that the Court should:
–        set aside the judgment under appeal; and
–        order AETMD to pay the costs incurred before the Court of Justice and before the General Court.
AETMD contends that the Court should:
–        dismiss the appeal;
–        order River Kwai to pay the costs, or
–        in the alternative, refer the case back to the General Court, and
–        reserve the costs at first instance and on appeal for final judgment by the General Court.
The Council contends that the Court should:
–        dismiss the appeal; and
–        order River Kwai to pay the costs.
The Commission contends that the appeal should be dismissed.

The appeal
River Kwai raises three grounds in support of its appeal.

The first ground of appeal

Arguments of the parties
The first ground of appeal alleges breach of the obligation to state reasons. River Kwai claims that, in the judgment under appeal, the General Court failed to rule on its claim that it should declare that the action before it was inadmissible. River Kwai states that, unlike the Council, which withdrew its challenge  to the action, in the course of proceedings, on the ground that it was inadmissible, it maintained its line of argument in that regard and submits, with reference to the judgments of 11 July 1990,
Neotype Techmashexport
v
Commission and Council
(C‑305/86 and C‑160/87, EU:C:1990:295, paragraphs 17 and 18), and of 9 June 2016,
Growth Energy and Renewable Fuels Association
v
Council
(T‑276/13, EU:T:2016:340, paragraph 157), that the General Court was required to address that claim on grounds of public policy. By failing to state why it did not address the plea alleging that the action was inadmissible, the General Court infringed River Kwai’s rights of defence.
AETMD, the Council and the Commission take the view that this ground of appeal is unfounded.

Findings of the Court
According to settled case-law, the obligation incumbent on the General Court under Article 36 and the first paragraph of Article 53 of the Statute of the Court of Justice of the European Union to state reasons for its judgments does not require the General Court to provide an account that follows exhaustively and one by one all the arguments put forward by the parties to the case. The reasoning may therefore be implicit, on condition that it enables the persons concerned to know why the measures in question were taken and provides the Court of Justice with sufficient material for it to exercise its power of review (judgments of 7 January 2004,
Aalborg Portland and Others
v
Commission
, C‑204/00 P,  C‑205/00 P,  C‑211/00 P,  C‑213/00 P,  C‑217/00 P and C‑219/00 P, EU:C:2004:6, paragraph 372, and of 14 June 2016,
Commission
v
McBride and Others
, C‑361/14 P, EU:C:2016:434, paragraph 61).
In the present case, the judgment under appeal contains no ground that addresses, even implicitly, the criticisms made by River Kwai in support of its submissions, in its statement in intervention, challenging AETMD’s
locus standi
.
However, it is important to note that if the grounds of a decision of the General Court contain an error in law as regards the requirement to state reasons but its operative part is shown to be well founded on other legal grounds, such an infringement is not capable of bringing about the annulment of that judgment, and the relevant grounds must be replaced (see, to that effect, judgment of 12 February 2015,
Commission
v
IPK International
, C‑336/13 P, EU:C:2015:83, paragraphs 53 and 64 and the case-law cited).
It must be borne in mind that intervention is limited to supporting, in whole or in part, the form of order sought by one of the main parties. It is ancillary to the main proceedings. An intervener therefore has no standing to raise a plea alleging that an action is inadmissible where such a plea is not set out in the form of order sought by the defendant (judgment of 1 July 2008,
Chronopost
v
UFEX and Others
, C‑341/06 P and C‑342/06 P, EU:C:2008:375, paragraph 67 and the case-law cited).
In the present case, it is clear from paragraph 28 of the judgment under appeal that, during the hearing, the Council withdrew its claim that AETMD did not have
locus standi
as regards the fourth plea relied on and confirmed that it regarded the action, in so far as it was based on that plea, as admissible. The Commission concurred with that assessment and the General Court took formal note of that point.
Therefore, the form of order sought by the Council did not claim that AETMD’s action should be declared inadmissible in so far as it was based on the fourth plea. Accordingly, the claim that that action should be dismissed as inadmissible, made by River Kwai as intervener, was inadmissible. It follows that the General Court was not required to rule on the merits of the arguments put forward in support of that claim.
Furthermore, River Kwai does not claim, in the present appeal, that the General Court should have declared the action brought before it inadmissible.
It follows that the General Court’s failure to rule on River Kwai’s head of claim concerning the admissibility of that action was of no consequence as regards the rights of the latter (see, to that effect, judgment of 1 July 2008,
Chronopost
v
UFEX and Others
, C‑341/06 P and C‑342/06 P, EU:C:2008:375, paragraph 69).
Therefore, the first ground of appeal must be rejected as unfounded.

The second ground of appeal

Arguments of the parties
By its second ground of appeal, River Kwai claims that the General Court distorted the facts and evidence before it. It claims that the General Court was wrong to find, in paragraph 72 of the judgment under appeal, that the issue of the allocation of costs related to the calculation of the dumping margin and not to the condition that must be satisfied in order to vary an anti-dumping duty under Article 11(3) of the Basic Regulation, which concern whether there has been a lasting change in circumstances.
According to AETMD, the second ground of appeal is inadmissible since it relates to an assessment of the facts. It considers that it is, in any case, manifestly unfounded.
The Council and the Commission submit that the second ground of appeal is ineffective, while criticising the inadequacy of the General Court’s response to their argument relating to the absence of any effect of the breach of AETMD’s procedural rights on the validity of the regulation at issue.

Findings of the Court
As a preliminary point, it is necessary to reject as manifestly inadmissible the arguments of the Council and of the Commission relating to an assessment made by the General Court which is not covered by the present appeal, as those institutions did not lodge an appeal or cross-appeal in that respect.
Contrary to what AETMD claims, River Kwai’s argument is not directed against a factual appraisal made by the General Court but relates to an alleged distortion of the facts and evidence. That argument is therefore admissible.
However, that argument cannot have any bearing on the operative part of the judgment under appeal.
It is clear from paragraph 68 of the judgment under appeal that, as regards its fourth plea, alleging breach of rights of defence, AETMD claimed ‘that the question of how [River Kwai]’s restructuring in fact had an impact on the dumping margin [was] a striking example of its inability to properly defend its rights’.
In paragraphs 70 to 78 of the judgment under appeal, the General Court examined the Commission’s replies to this question during the successive stages of the administrative procedure. On the basis of that examination, the General Court found, at paragraph 79 of the judgment under appeal, that ‘the possibility of an incorrect allocation of costs between [River Kwai] and AgriFresh, raised by [AETMD] since 25 March 2013 and which constituted — besides a rationalisation of [River Kwai]’s activity — one of the possible causes of the lowering of the production costs alleged by [River Kwai] in support of its request for an interim review, had not been the object of an investigation or even a reference in the final disclosure, and had not been clarified for the benefit of the applicant following the administrative procedure, before the adoption of the [regulation at issue]’.
It should also be noted that, as is apparent from paragraph 72 of the judgment under appeal, by their nature, the concerns expressed by AETMD regarding the impact of the restructuring of River Kwai could have affected the assessment of both the lasting nature of the changes of circumstances relied on and of the calculation of the dumping margin.
Against that background, the question as to whether, during the administrative procedure, the concerns expressed by AETMD were submitted in respect of one or other of the two conditions laid down under Article 11(3) of the Basic Regulation for varying an anti-dumping duty cannot call into question the General Court’s assessment in paragraph 72 of the judgment under appeal or, more generally, the grounds set out in paragraphs 70 to 79 of that judgment.
It must therefore be held that, even if the second ground of appeal were well founded, it could not enable River Kwai to have the judgment under appeal set aside, since the operative part of that judgment is based on the infringement of AETMD’s  procedural rights on account of the incomplete nature of the disclosure made to it during the administrative procedure, a point which has not been challenged in the present appeal.
In those circumstances, the second ground of appeal must be rejected as ineffective.

The third ground of appeal

Arguments of the parties
River Kwai claims that, by annulling the regulation at issue, the General Court retroactively increased the anti-dumping duty applicable to it. Such a retroactive change is contrary to Article 10 of the Basic Regulation and the general principle of non-retroactivity.
AETMD submits that the third ground of appeal is inadmissible, since it is imprecise and new. In any event, it considers that is unfounded, as contended by the Council and the Commission.

Findings of the Court
As regards the admissibility of the third ground of appeal, it should be noted that, by this ground of appeal, the appellant criticises the judgment under appeal. Consequently, that ground, which could not have been raised before the General Court, cannot be regarded as new. Moreover, in so far as it relates to paragraph 85 of that judgment, in which the Court decided to annul the regulation at issue, it cannot be regarded as imprecise.
It follows that the third ground of appeal is admissible.
As to the substance, first of all,  the first paragraph of Article 264 TFEU provides that, if an action for annulment is well  founded, the act concerned must be declared void.
Second, under the first paragraph of Article 266 TFEU, the institution whose act has been declared void must take the necessary measures to comply with the judgment declaring that act void.
In accordance with those provisions of the FEU Treaty, the consequence of the judgment under appeal is that the regulation at issue is removed retroactively from the legal order and is deemed never to have existed. Pursuant to Article 60 of the Statute of the Court of Justice of the European Union, the annulment of that regulation takes effect only as from the date of dismissal of the present appeal.
Lastly, contrary to what River Kwai claims, the General Court did not rule on the duties applicable to imports of its products into the European Union. As regards whether the judgment under appeal requires the customs authorities to retroactively collect anti-dumping duties at the rate of 12.8% on the imports concerned by the annulment of the regulation at issue, it is sufficient to state that that question concerns the legality of the implementing measures required by that judgment. It does not fall within the jurisdiction of the Court in the context of this appeal.
It follows that the third ground of appeal is unfounded and must, as a result, be rejected.
Having regard to all of the foregoing considerations, the appeal must be dismissed in its entirety.

Costs
In accordance with Article 184(2) of the Rules of Procedure of the Court, where the appeal is unfounded, the Court is to make a decision as to the costs. Under Article 138(1) of those rules, applicable to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
Article 140(1) of the Rules of Procedure, which applies to the procedure on appeal by virtue of Article 184(1) thereof, provides that the Member States and institutions which have intervened in the proceedings are to bear their own costs.
Since AETMD and the Council have applied for costs and River Kwai has been unsuccessful, the latter must be ordered to pay the costs.
The Commission, intervener at first instance, must bear its own costs.
On those grounds, the Court (Eighth Chamber) hereby:
1.
Dismisses the appeal,
2.
Orders River Kwai International Food Industry Co. Ltd to bear its own costs and to pay those incurred by the Association européenne des transformateurs de maïs doux (AETMD) and by the Council of the European Union,
3.
Orders the Commission to bear its own costs.
Biltgen
Malenovský
Fernlund
Delivered in open court in Luxembourg on 28 March 2019.
A. Calot Escobar

F. Biltgen
Registrar      President of the Eighth Chamber
*
Language of the case: English.