Opinion of the Advocate General — ECLI:EU:C:2008:532
Date: 2008-10-02
Language of the case: English
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Dumping;External relations;Commercial policy
Procedure: Action for annulment;Appeal - unfounded;Appeal - inadmissible

Summary of the Judgment 1. Appeals – Interest in bringing proceedings – Examination by the Court of its own motion (Art. 230, fourth para., EC) 2. Appeals – Pleas in law – Mistaken assessment of the facts – Inadmissibility – Review by the Court of Justice of the assessment of the evidence – Possible only where the clear sense of the evidence has been distorted (Art. 225(1) EC; Statute of the Court of Justice, Art. 58, first para.) 3. Common commercial policy – Protection against subsidisation practices of non-Member States – Injury – Establishing a causal link – Obligations of the institutions – Taking account of external factors other than the practice of subsidisation (Council Regulation No 2026/97, Art. 8(1) and (7)) 1. The Court may, of its own motion, raise the objection that a party has no interest in bringing or in maintaining an appeal against a judgment of the Court of First Instance on the ground that an event subsequent to that judgment is such as to remove the prejudicial effect thereof, and declare the appeal inadmissible or devoid of purpose for that reason. For an appellant to have an interest in bringing proceedings the appeal must be likely, if successful, to procure an advantage to the party bringing it. However, an appellant’s interest in seeking to have such a judgment set aside and, indirectly, the annulment of the contested regulation challenged at first instance, cannot be denied on the ground that that regulation no longer has any effect for the future. Such a setting aside and annulment is of itself capable of having legal consequences, in particular by preventing a repetition by the Community institutions of the practice complained of. (see paras 24-25) 2. It is clear from Article 225 EC and the first paragraph of Article 58 of the Statute of the Court of Justice that the Court of First Instance has exclusive jurisdiction, first, to find the facts, except where the substantive inaccuracy of its findings is apparent from the documents submitted to it, and, second, to assess those facts. When the Court of First Instance has found or assessed the facts, the Court of Justice has jurisdiction under Article 225 EC to review the legal characterisation of those facts by the Court of First Instance and the legal conclusions it has drawn from them. The Court of Justice thus has no jurisdiction to establish the facts or, in principle, to examine the evidence which the Court of First Instance accepted in support of those facts. Provided that the evidence has been properly obtained and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the Court of First Instance alone to assess the value which should be attached to the evidence produced to it. Save where the clear sense of the evidence has been distorted, that appraisal does not therefore constitute a point of law which is subject as such to review by the Court of Justice. In that regard, such a distortion must be obvious from the documents on the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence. By contrast, the question whether the Court of First Instance could, properly in law, conclude from those facts that the Community institutions had failed neither in their duty to act diligently nor in their duty to state reasons is a question of law subject to the review of the Court of Justice on appeal. (see paras 31-34) 3. In determining injury deemed to have been suffered by the Community industry in the context of an anti-dumping procedure, the Council and the Commission are under an obligation to consider whether the injury on which they intend to base their conclusions actually derives from the subsidised imports and must disregard any injury deriving from other factors, particularly from the conduct of Community producers themselves. It is for the Community institutions to ascertain whether the effects of those other factors were not such as to break the causal link between, on the one hand, the imports in question and, on the other, the injury suffered by the Community industry. It is also for them to verify that the injury attributable to those other factors is not taken into account in the determination of injury within the meaning of Article 8(7) of Regulation No 2026/97 on protection against subsidised imports from countries not members of the European Community and, consequently, that the countervailing duty imposed does not go beyond what is necessary to offset the injury caused by the subsidised imports. Conduct which directly affects the prices of products manufactured in the Community – such as the payment of royalties – may be capable of casting doubt, first, on the causal link between the subsidised imports and the injury and, second, on the assessment of the injury suffered by the Community industry by reason of the undercutting prices of those imports. According to Article 8(7) of Regulation No 2026/97, known factors other than the subsidised imports are also to be examined in order to ensure that injury caused by those other factors is not attributed to subsidised imports. Thus, the objective of that rule is to avoid granting the Community industry protection beyond that which is necessary. However, if the Community institutions find that, despite those factors, the injury caused by the subsidised imports is material pursuant to Article 8(1) of Regulation No 2026/97, the causal link between the subsidised imports and the injury suffered by the Community industry can be established. To establish that the causal link between the subsidised imports and the injury suffered by the Community institutions remains intact, it may suffice for the Community institutions to find that, despite an external factor, the injury to the Community producers was material. Thus, it may be found that the payment of royalties could not have had an effect on the injury caused by the subsidised imports, where that factor was present before those imports became significant. Likewise, the payment of such royalties does not affect the injury suffered by the Community industry where that practice affected both the Community prices and the import prices. (see paras 87-93)