Opinion of the Advocate General — ECLI:EU:C:2011:544
Date: 2011-09-06
Language of the case: English
Subject matter: Dumping;External relations;Commercial policy
Procedure: Action for annulment;Appeal - successful

Summary of the Judgment 1. Common commercial policy — Protection against dumping — Dumping margin — Determination of the normal value — Imports from a non-market economy country such as those referred to in Article 2(7)(b) of Regulation No 384/96 — Burden of proof (Council Regulation No 384/96, Arts 2(1) to (7), and 17) 2. Common commercial policy — Protection against dumping — Dumping margin — Determination of the normal value — Imports from a non-market economy country such as those referred to in Article 2(7)(b) of Regulation No 384/96 — Determination by sampling of the traders which may be granted market economy treatment (Council Regulations No 384/96, Arts 2(7)(b) and (c), first para., and 17, and No 1472/2006) 1. In anti-dumping investigations concerning imports from, inter alia, China, normal value is to be determined in accordance with Article 2(1) to (6) of the basic anti-dumping Regulation No 384/96, if it is shown that market economy conditions prevail for the producer or producers subject to an investigation, in respect of the manufacture and sale of the like product concerned. In that connection, the burden of proof lies with the producer wishing to claim market economy treatment (‘MET’). Consequently, there is no obligation on the EU institutions to prove that the producer does not satisfy the conditions laid down for the recognition of such status. On the contrary, it is for the EU institutions to assess whether the evidence supplied by the producer concerned is sufficient to show that the criteria laid down in the first subparagraph of Article 2(7)(c) of the basic regulation are satisfied in order to grant it MET and it is for the EU judicature to examine whether that assessment is vitiated by a manifest error. (see paras 31, 32) 2. In anti-dumping investigations concerning imports from, inter alia, China, the Commission is required to examine, in the course of a sampling exercise under Article 17 of the basic anti-dumping Regulation No 384/96, individual MET claims from traders who are not included in the sample. First, that obligation is apparent from Article 17 of that regulation — on sampling — which is one of the provisions relating to, inter alia, the methods available for determining the dumping margin. That provision has a content and purpose different from those of Article 2(7) of that regulation, which is one of the provisions concerned solely with the determination of normal value. Second, the obligation [to adjudicate upon a claim from a trader wishing to claim MET] is clear from the very wording of Article 2(7)(b) of the basic regulation. The obligation, which concerns the recognition of the economic conditions under which each producer operates, in respect of the manufacture and sale of the like product concerned, is not affected by the manner in which the dumping margin is to be calculated and must be fulfilled within three months of the initiation of the investigation. Consequently, Regulation No 1472/2006 imposing a definitive anti‑dumping duty and collecting definitely the provisional duty imposed on imports of certain footwear with uppers of leather originating in the People’s Republic of China and Vietnam must be annulled, since it is not inconceivable that, had the applications of the traders concerned been examined individually, a lower definitive anti‑dumping duty might have been imposed on those traders than that applicable to them pursuant to Regulation No 1472/2006. (see paras 36-39, 42)