Opinion of the Advocate General — ECLI:EU:C:2009:678
Date: 2009-10-29
Language of the case: English
Subject matter: Dumping;External relations;Commercial policy
Procedure: Appeal - unfounded;Appeal - inadmissible;Action for damages
Origin: Germany

Summary of the Judgment 1. Actions for damages – Subject-matter – Claim for repayment of anti-dumping duties paid when not owed – Jurisdiction of the national courts (Council Regulation No 2913/92, Art. 236(1)) 2. Non-contractual liability – Conditions – Unlawfulness – Damage – Causal link (Art. 288, second para., EC) 3. Non-contractual liability – Conditions – Causal link – Burden of proof (Art. 288, second para., EC) 1. It is for the national authorities to draw the consequences, in their legal system, of a declaration of an anti-dumping regulation’s invalidity, which has the consequence that anti-dumping duties paid under that regulation are not legally owed within the meaning of Article 236(1) of Regulation No 2913/92 establishing the Community Customs Code, and should, in principle, be repaid by the customs authorities in accordance with that provision, provided that the conditions to which such repayment is subject, including that set out in Article 236(2), are satisfied. Consequently, despite a settlement’s being concluded between the party allegedly adversely affected and the national customs authorities, the Community legislation implies that a claim for repayment of anti-dumping duties paid when not owed comes within the jurisdiction of the national courts concerned. The settlement cannot create for the Community Courts jurisdiction that did not exist prior to that settlement. (see paras 25-26) 2. The second paragraph of Article 288 EC means that the non-contractual liability of the Community and the exercise of the right to compensation for damage suffered depend on the satisfaction of a number of conditions, relating to the unlawfulness of the conduct of which the institutions are accused, the fact of damage and the existence of a causal link between that conduct and the damage complained of. The condition relating to the causal link is independent of that relating to the illegality of the conduct in question. Therefore, the question of whether the imposition of anti-dumping duties by a definitive regulation is illegal is irrelevant for the purposes of examining the condition relating to the causal link between that regulation and the losses allegedly suffered as a result of its adoption. (see paras 40, 48) 3. The principles common to the laws of the Member States to which the second paragraph of Article 288 EC refers cannot be relied upon to found an obligation on the Community to make good every harmful consequence, even a remote one, of conduct of its institutions. The condition under the second paragraph of Article 288 EC relating to a causal link concerns a sufficiently direct causal nexus between the conduct of the institutions and the damage. It is necessary that such damage was actually caused by the conduct alleged against the institutions. Even in the case of a possible contribution by the institutions to the damage for which compensation is sought, that contribution might be too remote because of some responsibility resting on others. It is necessary to verify whether, at the risk of having to bear the damage himself, the person adversely affected had demonstrated, as a prudent person, reasonable diligence in avoiding or limiting the extent of the damage. The causal link may be broken by negligence on the part of the person adversely affected, where that negligence proves to be the determinant cause of the damage. (see paras 53, 59, 61)