Judgment;Abstract — ECLI:EU:T:2019:668
Date: 2019-09-24
Language of the case: English
Court formation: Fifth Chamber
Subject matter: Dumping;External relations;Commercial policy
Procedure: Action for annulment - successful;Judgment delivered after back reference

Summary — Judgment of the General Court (Fourth Chamber), 16 March 2016 1. Judicial proceedings — Production of evidence — Time-limit — Late submission of evidence and offers of evidence — Evidence concerning the law — Principle iura novit curia (Rules of Procedure of the General Court (2015), Art. 85(3)) 2. Common commercial policy — Protection against dumping — Dumping margin — Determination of the normal value — Imports from non-market economy countries — Granting of market economy operator status — Conditions — Burden of proof on producers — Assessment of the evidence by the institutions — Judicial review — Limits (Council Regulation No 1225/2009, Art. 2(7)(a), (b) and (c)) 3. Common commercial policy — Protection against dumping — Dumping margin — Determination of the normal value — Imports from non-market economy countries — Granting of market economy operator status — Conditions — Production costs and financial situation of the undertaking not forming the subject-matter of any significant distortion, carried over from the former planned economy system — Tax advantages pursuing legitimate aims (Council Regulation No 1225/2009, Art. 2(7)(c), third indent) 1. See the text of the decision. (see paras 29-36) 2. See the text of the decision. (see paras 38-43, 59, 60) 3. Concerning the criteria for granting market economy operator status, it is apparent from the wording of Article 2(7)(c), third indent, of basic anti-dumping Regulation No 1225/2009 on protection against dumped imports from countries not members of the European Community that granting of that status is excluded where significant distortions in the production costs and the financial situation of the undertaking in question is carried over from the former planned economy system. In that regard, the various language versions of the basic regulation confirm that the term ‘carried over’ signifies that the former planned economy system must have caused or led to the distortions at issue. Therefore, the advantages at the origin of those distortions cannot refer to any advantage whatsoever procured by the competent national authorities, but only those which stem from the former planned economy system. Otherwise, the effectiveness and illustrative scope of the examples set out in that provision would be compromised. Moreover, even if tax incentives such as reduced tax rates, which presuppose state intervention, may orientate the conduct of undertakings in a different direction to that caused by the forces present in a market economy, the fact remains that such measures also exist in market-economy countries, so that the mere existence of such measures does not suffice for them to be classified as carried over from a planned economy. Concerning more particularly the question whether tax advantages granted by the People’s Republic of China to undertakings in the high-tech and new technologies sector are carried over from the former planned economy system, it cannot be disputed that the support of certain business sectors, such as the high-tech sector, considered strategic by a given country, constitutes a legitimate objective in a market economy, irrespective of the legality of the measures at issue with regard, in particular, to EU law on State aid. Nor can it be considered, in that regard, that the objective of attracting foreign investment is carried over from a former planned economy system, since, first, such an objective is pursued by a good number of countries with a market economy and, secondly, such a policy seems, at least in theory, inconsistent with a form of economic organisation based on collective or state ownership of enterprises subject to production objectives defined in a central plan, which characterises a planned economy system. (see paras 63, 64, 67, 75, 76)