Opinion of the Advocate General — ECLI:EU:C:2015:349
Date: 2015-05-21
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 (Third Chamber), 10 September 2015 1. Questions referred for a preliminary ruling — Reference to the Court — Determination of the questions to refer — Exclusive jurisdiction of the national courts — Obligation for the Court to assess grounds of invalidity put forward by one of the parties to the dispute in the main proceedings not raised by the referring court — No such obligation (Art. 267 TFEU) 2. Common commercial policy — Protection against dumping — Dumping margin — Determination of the normal value — Imports from non-market economy countries — Selection of the analogue country — Discretion of the institutions — Judicial review — Scope (Council Regulation No 1225/2009, Art. 2(7)(a)) 3. Common commercial policy — Protection against dumping — Dumping margin — Determination of the normal value — Imports from non-market economy countries — Reference to the price in a market-economy non-member country — Determination in an appropriate and not unreasonable manner — Criteria to be used in the choice of a reference country (Council Regulation No 1225/2009, Art. 2(7)(a)) 4. Common commercial policy — Protection against dumping — Dumping margin — Determination of the normal value — Imports from non-market economy countries — Selection of the analogue country — Duty of care of the institutions — Scope (Council Regulation No 1225/2009, Art. 2(7)(a)) 5. Common commercial policy — Protection against dumping — Dumping margin — Determination of the normal value — Imports from non-market economy countries — Reference to the price in a market-economy non-member country — Taking into account the data of a single producer of the like product — Lawfulness — Condition (Council Regulation No 1225/2009, Art. 2(1) to (7)(a)) 6. Common commercial policy — Protection against dumping — Course of the investigation — Necessity of recourse to external experts for the purposes of assessing data — Conditions (Council Regulation No 1225/2009) 7. Acts of the institutions — Statement of reasons — Obligation — Scope — Regulation imposing anti-dumping duties — Necessity of providing specific reasoning for each of the adjustments to the normal value of the product at issue — No such necessity (Art. 296 TFEU; Council Regulation No 1225/2009, Art. 2(10)) 8. Common commercial policy — Protection against dumping — Injury — Calculation of the margin of undercutting — Sampling — Selection of the samples — Discretion of the Commission — Requirement to use the same methodology for selecting the sample of exporting producers as the one used for selecting the sample of Union producers — No such requirement (Council Regulation No 1225/2009, Arts 3 and 17(1) and (2)) 1. See the text of the decision. (see paras 41-43) 2. See the text of the decision. (see paras 44, 51) 3. With regard to the determination of the normal value in the case of imports from non-market economy countries, that value is, according to Article 2(7)(a) of Regulation No 1225/2009 on protection against dumped imports from countries not members of the European Community, determined, in principle, on the basis of the price or constructed value in a market economy third country. The aim of that provision is to prevent account being taken of prices and costs in non-market economy countries which are not the normal result of market forces. In that regard, under the second subparagraph of Article 2(7)(a) of Regulation No 1225/2009, an appropriate market economy third country is to be selected in a not unreasonable manner, due account being taken of any reliable information made available at the time of selection. Indeed, it is for the Union institutions, whilst taking account of the possible alternatives, to try to find a third country in which the prices for a like product are formed in circumstances as similar as possible to those in the country of export, provided that it is a market economy country. It is apparent from the wording and scheme of the provision referred to that the aim of according priority to the main method laid down by that provision is to obtain a reasonable determination of the normal value in the country of export through the choice of a third country in which the price for a like product is formed in circumstances which are as similar as possible to those in the country of export, provided that it is a market economy country. In that context, where the market of the exporting country and that of the analogue country differ in terms of level of technological development, the institutions may justifiably rely on the high level of competition in the market of the like product in the analogue country for the purposes of choosing that country as the appropriate market economy third country. A high level of competition exerts, in principle, a downward force on prices, so that data from a highly competitive market do not necessarily lead to a higher dumping margin than data from a country with lower costs but also lower competition. Moreover, a higher level of technological development is likely to offset lower labour costs, so that higher labour costs cannot necessarily be taken as an indication of higher prices and higher normal value. (see paras 48-50, 58, 59) 4. In the context of selecting an analogue country in order to determine the normal value of imports from non-market economy countries, in accordance with Article 2(7)(a) of Regulation No 1225/2009 on protection against dumped imports from countries not members of the European Community, given that the producers in the envisaged analogue third countries are not required to cooperate, the fact that they do not accept the Commission’s invitation to cooperate cannot constitute a breach of the duty of care incumbent on that institution. In that regard, where none of the undertakings contacted is willing to cooperate and, consequently, the Commission applies the secondary methodology provided for in Article 2(7)(a) of Regulation No 1225/2009 whereby the normal value of the product in question is determined ‘on any other reasonable basis’, the Union institutions must examine with all due care the information they possess, including, in particular, Eurostat statistics, in order to ascertain whether it is possible to select an analogue country for the purposes of Article 2(7)(a) of the basic regulation. In particular, as regards the argument that the Commission did not take into account certain publicly available statistical data during that search, the Union institutions must examine with all due care the information they possess, including, in particular, Eurostat statistics, in order to ascertain whether it is possible to select an analogue country for the purposes of the provision referred to. Where a contacted undertaking agrees to cooperate with the Commission and the Commission therefore applies the main methodology set out by that provision, whereby the normal value is determined on the basis of the price or constructed value in a market economy third country or of the price from such a third country to other countries, the Commission does not have to examine those statistics. (see paras 55, 56) 5. In the case of imports from countries that do not have a market economy, Regulation No 1225/2009 on protection against dumped imports from countries not members of the European Community lays down, in Article 2(7), a specific arrangement for determining the normal value, distinct from that provided for in paragraphs 1 to 6 of that article, so the wording of those latter paragraphs is not relevant in determining whether the normal value at issue in the main proceedings must be constructed from the prices of one producer or of more than one producer. In that respect, as regards the determination of the normal value pursuant to Article 2(7)(a) of that regulation, the mere fact that there is only one producer in the reference country does not in itself preclude the prices there from being the result of genuine competition, since such competition may just as well result, in the absence of price controls, from the presence of significant imports from other countries. The decisive factor, for the purposes of choosing the producer or the producers in the reference country, is whether the prices on the domestic market of the third country are the result of genuine competition. (see paras 65-67) 6. In the context of an anti-dumping investigation, in relation to recourse to external experts, the Union institutions should, in principle, in the absence of some specific reason to suppose otherwise, be regarded as capable of assessing the data adequately themselves. (see para. 69) 7. See the text of the decision. (see paras 75-78) 8. With regard to using samples to calculate the level of price undercutting of dumped imports, compared with the price of a like product of the Union industry, neither Article 17(1) of Regulation No 1225/2009 on protection against dumped imports from countries not members of the European Community, nor Article 3 of that regulation, nor the principle of equal treatment require the methodology used for selecting the sample of Chinese producers to be the same as the one used for selecting the sample of Union producers. On the contrary, Article 17(2) of that regulation states that the final selection of parties, types of products or transactions made under the sampling provisions is to rest with the Commission. In that regard, the use of two different methodologies for selecting the sample of Union producers, on the one hand, and Chinese exporting producers, on the other hand, may be justified inter alia by the fact that those samples have different objectives. So far as concerns the sample of exporting producers, its objective is to include as large a number as possible of imports, in order to ensure that average import prices for each type of product are as close as possible to the real average and reflect as closely as possible the pressure on prices suffered by the Union industry. With regard to the sample of Union producers, it serves to verify whether the average import prices for each type of product have similar effects on all Union producers or whether there is a specific category of Union producers particularly affected. In addition, a sample does not necessarily have to reflect the exact geographical spread and weight of the producing Member States, that spread being only one of the factors to take into account to ensure representativeness. (see paras 87, 88, 90)