Opinion of the Advocate General — ECLI:EU:C:2014:261
Date: 2014-04-10
Language of the case: German
Subject matter: Dumping;External relations;Commercial policy
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary — Judgment of the Court (Second Chamber), 4 September 2014 1. Questions referred for a preliminary ruling — Jurisdiction of the national court — Assessment of the need for and the relevance of the questions referred — Requests concerning the validity of an EU regulation — No obligation of the Court to assess the grounds of invalidity invoked by one of the parties to the proceedings, which the referring court has not referred to (Art. 267 TFEU) 2. Common commercial policy — Protection against dumping — Discretion of the institutions — Judicial review — Limits (Council Regulations No 384/96, Art. 13 and No 499/2009) 3. Common commercial policy — Protection against dumping — Circumvention — Extension of an anti-dumping duty — Validity of Regulation No 499/2009 — Requirement relating to the replacement of imports originating in countries subject to the anti-dumping duty by those from circumvention countries — No such requirement — Burden of proof — Finding the existence of a circumvention on the basis of a body of consistent evidence — Lawfulness (Council Regulations No 384/96, Arts 13 and 18, and No 499/2009) 1. See the text of the decision. (see paras 26-28) 2. In the sphere of the common commercial policy and, most particularly, in the realm of measures to protect trade, the EU institutions enjoy a broad discretion by reason of the complexity of the economic, political and legal situations which they have to examine. Judicial review of such an appraisal must thus be limited to verifying that the relevant procedural rules have been complied with, that the facts on which the choice is based have been accurately stated and that there has not been a manifest error of assessment of those facts or a misuse of powers. (see para. 29) 3. As regards the circumvention of anti-dumping measures, Article 13(1) of basic anti-dumping Regulation No 384/96 provides that it consists of a change in the pattern of trade between third countries and the EU which stems from a practice, process or work for which there is insufficient due cause or economic justification other than the imposition of the duty, and where there is evidence of injury or that the remedial effects of the duty are being undermined in terms of the prices and/or quantities of the like product. In that regard, it is apparent from basic anti-dumping Regulation No 384/96 that it was not the intention of the EU legislature to establish a legal presumption making it possible to infer the existence of circumvention directly from the non-cooperation of the parties interested or concerned, and thereby exempting the EU institutions from any requirement to adduce proof. However, given that it is possible to make findings, even definitive findings, on the basis of the facts available and to treat a party which does not cooperate or does not cooperate fully less favourably than if it had cooperated, it is equally evident that the EU institutions are authorised to act on the basis of a body of consistent evidence showing the existence of circumvention for the purposes of Article 13(1) of that regulation. In that respect, that provision makes no reference to any requirement as to the replacement of imports originating in countries subject to the anti-dumping duty by those from circumvention countries as a condition necessary for a finding of circumvention. Furthermore, the definition of ‘circumvention’ is set out in very general terms which leave a broad margin of discretion to the EU institutions, since no details of the nature and form of the ‘change in the pattern of trade between third countries and the Union’ are given. Consequently, the Council has established to the requisite legal standard that there was a change in the pattern of trade between China, Thailand and the EU with a view to the adoption of Regulation No 499/2009 extending the definitive anti-dumping duty imposed by Regulation No 1174/2005 on imports of hand pallet trucks and their essential parts originating in the People’s Republic of China to imports of the same product consigned from Thailand, whether declared as originating in Thailand or not, and that the validity of that regulation is not at issue. Furthermore, since the institutions acted on the basis of a body of consistent evidence to find the existence of the circumvention of the anti-dumping duty imposed on imports of hand pallet trucks and their essential parts originating in China by finding that the change in the pattern of trade between Thailand and the EU began just after the imposition of the anti-dumping duty on those imports, that coincidence in time constitutes significant evidence making it possible to establish a link based in logic and reason between the considerable increase in imports from Thailand and the imposition of the anti-dumping duty. Similarly, in the context of a situation characterised by the complete refusal to cooperate with the circumvention investigation, the EU institutions were entitled to act on the basis of the evidence available in order to find the existence of a practice, process or work in Thailand aimed solely at the circumvention of the anti-dumping duty affecting imports originating in China. It follows that there was circumvention of measures within the meaning of Article 13(1) of basic anti-dumping Regulation No 384/96, such that the validity of Regulation No 499/2009 was not affected. (see paras 30, 36, 47-50, 52, 56-58, operative part)