Judgment — ECLI:EU:T:2009:72
Date: 2009-03-18
Language of the case: English
Court formation: First Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Dumping;External relations;Commercial policy
Concepts: General;Anti-dumping and anti-subsidy measures
Procedure: Action for annulment - unfounded

Summary of the Judgment 1. Actions for annulment – Interest in bringing proceedings – Interest to be assessed at the time at which an action is brought – Action brought by an importer to dispute the procedure which led to the imposition of an anti-dumping duty – Anti-dumping duty which has expired (Arts 230 EC and 233, first para., EC) 2. Common commercial policy – Protection against dumping – Individual treatment of exporters from a country without a market economy – Conditions – Discretion of the institutions – Judicial review – Limits (Council Regulation No 384/96) 3. Common commercial policy – Protection against dumping – Dumping margin – Determination of the normal value – Imports from non-market economy countries such as those referred to Article 2(7)(b) of Regulation No 384/96 – Application of the rules for countries with a market economy– Restrictive interpretation – Application reserved for producers satisfying the cumulative conditions laid down in Article 2(7)(c) of that regulation (Council Regulation No 384/96, Art. 2(7)) 4. Common commercial policy – Protection against dumping – Dumping margin – Determination of the normal value – Imports from non-market economy countries such as those referred to Article 2(7)(b) of Regulation No 384/96 – Assessment procedure in respect of the criteria allowing a producer to qualify for market economy status (Council Regulation No 384/96, Art. 2(7)(c)) 5. Common commercial policy – Protection against dumping – Review procedure – Determination of the normal value – Methodology followed in the original investigation inconsistent with the provisions of Article 2 of Regulation No 384/96 (Council Regulation No 384/96, Arts 2, 17 and 11(9)) 6. Common commercial policy – Protection against dumping – Dumping margin – Determination of the normal value – Recourse to a constructed value (Council Regulation No 384/96, Art. 2(10)) 7. Common commercial policy – Protection against dumping – Dumping margin – Comparison between the normal value and the export price – Adjustments (Council Regulation No 384/96, Art. 2(10)) 1. An applicant’s interest in bringing proceedings must, in the light of the purpose of the action, exist at the time at which the action is brought, failing which the action will be inadmissible. That purpose must continue to exist, like the interest in bringing proceedings, until the final decision, otherwise there will be no need to adjudicate; this presupposes that the action must be liable, if successful, to procure an advantage to the party bringing it. However, the fact that a measure ceases to produce its effects in the course of proceedings seeking its annulment does not in itself mean that the Community judicature must declare that there is no need to adjudicate for lack of purpose or for lack of interest in bringing proceedings at the date of the delivery of the judgment. Furthermore, an applicant may retain an interest in claiming the annulment of an act of a Community institution to prevent the unlawfulness alleged by it from recurring in the future. That interest in bringing proceedings follows from the first paragraph of Article 233 EC, under which the institutions whose act has been declared void are required to take the necessary measures to comply with the judgment. Such an interest in bringing proceedings can exist only if the unlawfulness alleged is liable to recur in the future independently of the circumstances of the case which gave rise to the action brought by the applicant. That is true of an action for annulment, such as that in the present case, brought by undertakings made subject to an anti-dumping duty following a review procedure, even if that duty no longer applies, in so far as they dispute the procedure which led to its imposition. In contrast to the substantive assessment as to the existence of dumping, the detailed rules of a review procedure are liable to be referred to in the future in the context of similar procedures, and thus the applicants retain a legal interest in bringing proceedings against the contested regulation – even though it is now of no effect with regard to them – in view of future anti-dumping procedures against them. What is more, an applicant may retain an interest in seeking the annulment of an act which directly affects him in order to obtain a finding, by the Community judicature, that an unlawful act has been committed against him, so that such a finding can then be the basis for any action for damages aimed at properly restoring the damage caused by the contested act. Furthermore, a finding of illegality could constitute the basis for any extrajudicial negotiations between the Council and the applicants aimed at reparation of the damage suffered by them. Moreover, to take the view that acts adopted by the institutions whose temporal effects are limited and which cease to produce those effects after an action for annulment has been brought but before the Court is able to give the relevant judgment would be excluded from review by the Court, unless they had given rise to the payment of sums of money, is incompatible with the spirit of Article 230 EC which presupposes that in a community based on the rule of law, like the European Community, neither the Member States nor the institutions can avoid a review of the question whether the measures adopted by them are in conformity with its basic constitutional charter, the Treaty, or the law which derives from that treaty. (see paras 43, 46, 48-51, 53, 55-57) 2. In the sphere of measures to protect trade, the Community institutions enjoy a wide discretion by reason of the complexity of the economic, political and legal situations which they have to examine. It follows that review by the Community judicature of assessments made by the institutions must be limited to establishing whether the relevant procedural rules have been complied with, whether the facts on which the contested choice is based have been accurately stated and whether there has been a manifest error of assessment of those facts or a misuse of power. The same applies to factual situations of a legal and political nature in the country concerned which the Community institutions must assess in order to determine whether an exporter operates in market conditions without significant State interference and can, accordingly, be granted market economy status. The examination of whether the accounts of undertakings wishing to claim market economy status comply with the internationally accepted accounting standards chosen by the Community institutions falls within the discretion of those institutions. It is for the undertakings in question, if they do not agree with that choice, to prove that the standards selected by the institutions are not internationally accepted or that any infringements of those standards by their accounts do not constitute such infringements in the light of other internationally accepted standards. (see paras 79-81, 90, 255) 3. The method of determining the normal value of a product set out in Article 2(7)(b) of the basic anti-dumping regulation No 384/96 must, as an exception to the specific rule laid down for that purpose in Article 2(7)(a), which is, in principle, applicable to imports from non-market economy countries, be interpreted strictly. Furthermore, the burden of proof lies with the exporting producer wishing to claim market economy status. Article 2(7)(c) of that regulation provides that the claim ‘must … contain sufficient evidence’. Accordingly, there is no obligation on the Community institutions to prove that the exporting producer does not satisfy the criteria laid down for the recognition of such status. On the contrary, it is for the Community institutions to assess whether the evidence supplied by the exporting producer is sufficient to show that the cumulative criteria laid down in Article 2(7)(c) of the basic regulation are fulfilled and for the Community judicature to examine whether the institutions’ assessment is vitiated by a manifest error. (see paras 76, 82-83) 4. In the context of the procedure for evaluating the criteria which permit a producer to be able to claim market economy status, the second subparagraph of Article 2(7)(c) of the basic anti-dumping regulation No 384/96, which provides for a time-limit of three months as from the initiation of the investigation by the Commission, does not contain any indication as regards the consequences of a failure to comply with that period. In particular, that article does not specify whether such a failure to comply with the three-month period means that grant of that status becomes mandatory or the continuation of the investigation becomes impossible, those being the only reasons for which a regulation imposing definitive anti-dumping duties, which was adopted following a decision on the grant of that status, could be annulled automatically because that period had been exceeded. Therefore, in so far as clarification is not provided by any other provision of the basic regulation, the Court must examine the purpose and the structure of that regulation in order to determine whether it must be interpreted as meaning that the grant of that status becomes mandatory or the continuation of the relevant review investigation becomes impossible when the three-month period is exceeded by the Commission. In that regard, it is apparent from a reading of the provisions in the basic regulation relating to other periods, in particular those referred to in Articles 8(5) and 9(2) and (4) that, where the basic regulation means to penalise failure to observe a procedural time-limit on the part of the institutions by automatic acceptance of an application or by other specific consequences, it expressly states so. Furthermore, it is apparent from the purpose and the structure of the basic regulation that, at least in the context of certain review investigations, that regulation must be interpreted as precluding failure by the Commission to comply with the three-month period for the investigation from preventing the Community institutions from adopting a regulation imposing anti-dumping duties on the undertakings in question. It would be inappropriate to conclude that if the undertakings to which an undertaking related were established in a country without a market economy and were requesting market economy status, the Commission ought to refrain from pursuing the investigation with regard to them if it exceeded the three-month period, because that would be detrimental to the purpose of their original request, namely a review of their individual situations. It would also be inappropriate to conclude that the Commission should begin a new investigation, since that would in practice only aggravate the failure to comply with that period. Furthermore, the three-month period imposed under the second subparagraph of Article 2(7)(c) of the basic regulation is intended to ensure that the question whether the producer meets the criteria set out in that article is not decided on the basis of its effect on the calculation of the dumping margin. Thus, the last sentence of Article 2(7)(c) of the basic regulation prohibits the institutions, after they have adopted a decision on market economy status, from then re-evaluating the information which was available to them in that regard. Consequently, the practical effect of that time-limit is not called in question if, in the period between the expiry of the three-month period and the decision on that status and having regard to the circumstances of the case, it had to be concluded that the undertakings claiming that status had made it impossible for the Commission to know what effect its decision concerning that status might have on the calculation of the dumping margin. Lastly, in the absence of a provision setting out either expressly or implicitly the consequences of failure to comply with a procedural time-limit, such a failure can entail the annulment in whole or in part of the act to be adopted within the period in question only if it is shown that, in the absence of such alleged irregularity, that act might have been substantively different. (see paras 116-117, 119-120, 122, 124-125, 127-128, 138) 5. Although Article 11(9) of the basic anti-dumping regulation No 384/96 provides that in all review or refund investigations carried out pursuant to that article the Commission must, provided that circumstances have not changed, apply the same methodology as in the investigation which led to the duty, it is also apparent from that article that the methodology applied must comply with Articles 2 and 17 of the basic regulation. It follows that institutions are not bound to apply in a review investigation a methodology which was followed during the original investigation if that methodology does not comply with the provisions of Article 2 of the basic regulation. In the context of a comparison of the export price with the normal value in respect of undertakings from a non-market economy country, which have not been accorded market economy status and in respect of which a normal value for an analogous country has been chosen, any interpretation to the contrary would result in an absurd situation in which those undertakings would be entitled to seek annulment of the regulation imposing anti-dumping duties on them for infringement of Article 2(3) of that regulation if the Council calculated the normal value on the basis of the addition of the actual export prices and the actual selling prices of the exporter from the analogous country chosen, whereas if the Council calculated a constructed normal value those undertakings could seek annulment of that regulation for infringement of Article 11(9) of the basic regulation. Furthermore, the Commission’s obligation, under Article 11(9) of the basic regulation, does not imply that it must, or must not, carry out verification visits in the review investigation according to whether or not those visits were carried out in the original investigation. The verification of an item of information cannot be regarded as part of the methodology chosen to establish the existence of dumping but merely as a means of obtaining information which makes it possible to apply the methodology in question. (see paras 176-178, 187) 6. According to the scheme of the basic anti-dumping regulation No 384/96, the purpose of constructing the normal value is to determine the selling price of a product as it would be if that product were sold in its country of origin or in the exporting country and consequently it is the expenses relating to sales on the domestic market which must be taken into account in calculating the constructed value. In constructing the normal value, the institutions do not have to take into account the actual expenses of the company under consideration, but a reasonable estimate of the selling, general and administrative expenses that that company would have to bear if it marketed the product in question in sufficient quantities in its State of origin. As regards the practice of making deductions for agency commissions which may prove to be necessary, under Article 2(10) of the basic regulation, to take account of differences between the export price and the normal value which affect their comparability, it must be pointed out that such deductions cannot be made with respect to a value which has been constructed and which is not, therefore, genuine. That value is not generally affected by factors which might damage its comparability, such as agency commissions, because it has been artificially established by adding together various items, but not including payments or profit margins received by distributors which are similar to such a commission and must be deducted. (see paras 258, 266) 7. It is apparent from both the wording and the scheme of Article 2(10) of the basic anti-dumping regulation No 384/96 that an adjustment to the export price or the normal value can only be made to take account of differences in factors which affect the prices and therefore their comparability. That is not the case for a commission which has not actually been paid. To be able to make such an adjustment the institutions would have to base their decision on factors capable of showing, or of giving rise to the inference, that a commission has in fact been paid and is such as to have a definite effect on the comparison between the export price and the normal value. However, the insertion of a second sentence in Article 2(10)(i) of the basic regulation now allows an adjustment to be made not only for differences in commissions paid in respect of the sales under consideration, but also for the mark-up received by traders of the product if they carry out functions which are similar to those of an agent working on a commission basis. Consequently, even where no commission was paid to the marketing companies related to the exporting producers, a deduction from the export price in respect of agency commissions is lawful, since a deduction may also be made if no commission has actually been paid but the traders in question carry out functions similar to those of an agent and receive a mark-up. (see paras 272, 274, 279, 281-282)