Judgment — ECLI:EU:T:2009:205
Date: 2009-06-17
Language of the case: English
Court formation: Fourth Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Dumping;External relations;Commercial policy
Concepts: Anti-dumping and anti-subsidy measures
Procedure: Action for annulment - unfounded;Action for annulment - successful

Summary of the Judgment 1. Common commercial policy – Protection against dumping – Dumping margin – Determination of the normal value – Imports from non-market economy countries as referred to in Article 2(7)(b) of Regulation No 384/96 – Application of the rules for market economy countries – Application reserved for producers satisfying the cumulative conditions laid down in Article 2(7)(c) of Regulation No 384/96 – Absence of significant State intervention – Concept – Burden of proof (Council Regulation No 384/96, Art. 2(7)(c), first indent) 2. Common commercial policy – Protection against dumping – Dumping margin – Determination of the normal value – Imports from non-market economy countries as referred to in Article 2(7)(b) of Regulation No 384/96 – Procedure for evaluating the conditions entitling a producer to the status of undertaking operating under market economy conditions – Discretion of the institutions – Taking account of State control – Permissible – Assimilation of State control to significant State intervention – Not permissible (Council Regulation No 384/96, Art. 2(7)(b) and (c)) 3. Common commercial policy – Protection against dumping – Dumping margin – Determination of the normal value – Imports from non-market economy countries as referred to in Article 2(7)(b) of Regulation No 384/96 – Application of the rules for market economy countries – Application reserved for producers satisfying the cumulative conditions laid down in Article 2(7)(c) of Regulation No 384/96 – Taking account of both domestic and export activities (Council Regulation No 384/96, Art. 2(7)(b) and (c)) 1. It is clear from the wording of the first indent of Article 2(7)(c) of basic antidumping Regulation No 384/96 that the question of whether or not there is significant State interference must be assessed in the light of the way that ‘decisions of firms regarding prices, costs and inputs’ are made. It requires the exporting producer concerned to show that its decisions are made both ‘in response to market signals’ and ‘without significant State interference’. In addition, the use of the words ‘in this regard’ further accentuates the connection between the relevant decisions and the State interference. Consequently, conduct by the State which is not such as to influence the relevant decisions cannot constitute ‘significant State interference’ within the meaning of the first indent of Article 2(7)(c) of basic antidumping Regulation No 384/96. Furthermore, in view of the wording, purpose and context of that provision, the concept of ‘significant State interference’ cannot be assimilated to just any influence on the activities of an undertaking or to just any involvement in its decision-making process, but must be understood as meaning action by the State which is such as to render the undertaking’s decisions incompatible with market economy conditions. In particular, the very use of the expression ‘significant … interference’ is evidence of the Community legislature’s intention to allow a certain degree of State influence over an undertaking’s activities or of State involvement in its decision-making process if it has no effect on the manner in which its decisions concerning prices, costs and inputs are made. (see paras 84-87) 2. For the purposes of interpreting and applying the first indent of Article 2(7)(c) of basic antidumping Regulation No 384/96, account must be taken of the fact that the States referred to in Article 2(7)(b) are not regarded as States with market economies, and that is so despite the reforms which have been achieved there. That is an assessment by the Community legislature of the economic, legal and political situation in those non-member countries, which is expressly recognised in Article 2(7) of that regulation and which justifies the specific treatment reserved for imports from those States as regards the determination of the normal value. It must be presumed, therefore, that the conditions in which undertakings operate in those countries are not, unless there is evidence to the contrary, comparable to those in market economy countries. Thus, the fact that a company established in a non-market economy country is State-controlled may raise doubts as regards the question of whether the State exceeds the role of a normal shareholder which respects the rules of the market and whether the company’s management is sufficiently independent of the State to be able to make decisions concerning prices, costs and inputs autonomously and in response to market signals reflecting supply and demand. In addition, it is clear from the first indent of Article 2(7)(c) of basic antidumping Regulation No 384/96, in the words of which decisions of firms are ‘made’, that the Community legislature specifically required that the concerned undertaking’s decision-making process be free from any significant State interference. However, the taking of independent decisions on commercial grounds is, generally, a characteristic of the private sector. Consequently, it is legitimate for the Community institutions, in the exercise of the wide discretion they enjoy in that domain, but subject to review by the Community courts which must satisfy themselves that all the relevant circumstances put forward were taken into account and appraised with all due care, to take account, in their examination of the evidence produced by the exporter concerned, of the fact that the undertaking concerned is State-controlled. However, State control is not, as such, incompatible with the taking of commercial decisions by the undertaking concerned in keeping with market economy conditions and, in particular, does not mean that its decisions on prices, costs and inputs are based on considerations unrelated to an undertaking operating under such conditions. Assimilating State control to ‘significant State interference’, within the meaning of the first indent of Article 2(7)(c) of basic antidumping regulation No 384/96, leads to the exclusion, in principle, of State-controlled companies from entitlement to the status of undertakings operating under market-economy conditions, irrespective of the real factual, legal and economic context in which they operate, and, more particularly, of whether they submitted evidence sufficient to show that the State did not exceed the role of a normal shareholder in a market economy country, that the undertaking’s decisions were made freely and independently of considerations peculiar to the State and that those decisions were therefore based exclusively on purely commercial considerations, appropriate to an undertaking operating under market economy conditions. Such an approach is incompatible with Article 2(7)(b) and (c). Consequently, whilst State control over an undertaking is a matter which may possibly be taken into account, it is not sufficient, by itself, to demonstrate the existence of ‘significant State interference’ and cannot therefore lead to the conclusion that the evidence provided by the exporter concerned is, for the purposes of the first indent of Article 2(7)(c) of basic antidumping Regulation No 384/96, irrelevant. (see paras 89-92, 97-101, 106) 3. Article 2(7) of basic antidumping Regulation No 384/96 makes the determination of the normal value in accordance with the rules set out in Article 2(1) to (6) of that regulation subject to the demonstration by the producer concerned that it operates under market economy conditions. Such ‘market economy conditions’ need not concern exclusively the domestic activities of the producer in question. Indeed, the absence of restrictions as regards exports and, in particular, the freedom to negotiate export prices are characteristics peculiar to a market economy. Moreover, Article 2(7)(c) of that regulation, which states what evidence the producer should provide so as to be regarded as operating under market economy conditions, makes no reference to the domestic activities of the producers concerned. In particular, the reference to ‘decisions of firms regarding prices’ is not accompanied by any reservation by virtue of which those decisions should concern only the producer’s domestic market. Consequently, whilst Article 2(7) of basic antidumping Regulation No 384/96 concerns the determination of the normal value, which, for the purposes of that regulation, is a different concept to that of export prices, it does not follow that the conduct of the exporting producers concerned as regards export prices is wholly irrelevant for the purposes of applying Article 2(7)(b) and (c) of that regulation. (see paras 114-116)