Opinion of the Advocate General — ECLI:EU:C:2015:620
Date: 2015-09-17
Language of the case: German;English
Subject matter: Dumping;External relations;Commercial policy
Procedure: Reference for a preliminary ruling
Origin: Germany;United Kingdom

Summary — Judgment of the Court (Fourth Chamber), 4 February 2016 1. Questions referred for a preliminary ruling — Assessment of validity — Question relating to the validity of a regulation which was not challenged on the basis of Article 263 TFEU — Main proceedings brought by a company not clearly entitled to bring an action for annulment — Admissibility (Arts 263, fourth para., TFEU and 267, first para., point (b), TFEU) 2. Actions for annulment — Natural or legal persons — Measures of direct and individual concern to them — Regulation imposing anti-dumping duties — Producers and exporters from non-member countries — Union importers and traders having a special relationship with the producers (Art. 263, fourth para., TFEU) 3. Own resources of the European Union — Repayment or remission of import duties — Importer of the product subject to antidumping duties which has not submitted an application for a refund under Article 11(8) of Regulation No 384/96 within the period laid down — Omission not precluding the submission of an application for repayment founded on Article 236 of the Customs Code (Council Regulation No 384/96, as amended by Regulation No 461/2004, Art. 11(8), and Council Regulation No 2913/92, Art. 236) 4. Plea of illegality — Challenge before a national court as to the legality of a regulation imposing an anti-dumping duty, made by an importer in an action brought against a national measure adopted on the basis of that regulation — Interest of the importer in pleading breach by the Commission of its obligation to examine claims for market economy treatment or individual treatment (Arts 263 TFEU and 277 TFEU) 5. International agreements — Agreement establishing the World Trade Organisation — GATT 1994 — Not possible to rely on the WTO agreements to contest the legality of an EU measure — Exceptions — EU measure intended to ensure their implementation or referring to them explicitly and specifically (Art. 216(2) TFEU; General Agreement on Tariffs and Trade 1994; Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994, ‘1994 Anti-Dumping Code’) 6. International agreements — Agreement establishing the World Trade Organisation — GATT 1994 — Not possible to rely on the WTO agreements to contest the legality of an EU measure — Exceptions — EU measure intended to ensure their implementation — Scope (Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994, ‘1994 Anti-Dumping Code’; Council Regulation No 384/96, recital 5 and Arts 2(7) and 9(5)) 7. International agreements — Agreement establishing the World Trade Organisation — Ruling of the Dispute Settlement Body of the WTO finding non-compliance with the substantive rules of that agreement — Not possible to rely on those agreements or that ruling to contest the legality of an EU measure 8. Common commercial policy — Protection against dumping — Dumping margin — Determination of the normal value — Imports from non-market economy countries — Grant of market economy treatment — Conditions — Burden of proof on producers — Assessment of the evidence by the institutions (Council Regulation No 384/96, as amended by Regulation No 461/2004, Art. 2(1) to (6) and (7)(a), (b) and (c)) 9. Common commercial policy — Protection against dumping — Dumping margin — Determination of the normal value — Imports from non-market economy countries — Grant of market economy treatment — Obligation on the Commission to adjudicate upon claims for such treatment made by any producer — No examination of the claims of producers not included in the sample — Not permissible — Regulation No 1472/2006 invalid to that extent (Council Regulation No 384/96, as amended by Regulation No 461/2004, Arts 2(7)(b) and 17, and Council Regulation No 1472/2006] 10. Common commercial policy — Protection against dumping — Fixing of anti-dumping duties — Individual treatment of exporting undertakings from a non-market economy country — Obligation on the EU institutions to examine claims for individual treatment and to adjudicate upon them (Council Regulation No 384/96, as amended by Regulation No 461/2004, Art. 9(5)) 11. EU law — Interpretation — Texts in several languages — Differences between the various language versions — Taking into account the real intention of the author and the aim which that author seeks to achieve 12. Common commercial policy — Protection against dumping — Fixing of anti-dumping duties — Individual treatment of exporting undertakings from a non-market economy country — Obligation on the Commission to examine claims for such treatment and to adjudicate upon them — No examination of the claims of traders not included in the sample — Not permissible — Regulation No 1472/2006 invalid to that extent (Art. 267 TFEU; Council Regulation No 384/96, as amended by Regulation No 461/2004, Council Regulation No 1472/2006 and Council Regulation No 1294/2009) 13. Common commercial policy — Protection against dumping — Imports from non-market economy countries as referred to in Article 2(7)(b) of Regulation No 384/96 — Procedure for assessing the conditions enabling a producer to qualify for market economy treatment — Failure by the EU institutions to comply with the time limit — No effect on the validity of the definitive regulation (Council Regulation No 384/96, as amended by Regulation No 461/2004, Art. 2(7)(c), and Council Regulation No 1472/2006) 14. Common commercial policy — Protection against dumping — Investigation — Obligation on the Commission to terminate the procedure once support for the complaint has fallen below minimum thresholds — No such obligation) (Council Regulation No 384/96, as amended by Regulation No 461/2004, Art. 5(4)) 15. Common commercial policy — Protection against dumping — Discretion of the institutions — Compliance with procedural safeguards — Judicial review — Limits (Arts 263 TFEU and 267 TFEU; Council Regulation No 384/96, as amended by Regulation No 461/2004, and Council Regulation No 1472/2006) 16. Common commercial policy — Protection against dumping — Injury — Establishing a causal link — Obligations of the institutions — Taking into account of factors extraneous to the dumping — Impact of such factors on the establishment of a causal link— Burden of proof (Council Regulation No 384/96, as amended by Regulation No 461/2004, Art. 3(7)) 17. Actions for annulment — Judgment annulling a measure — Scope — Annulment of an antidumping regulation in so far as it imposes an antidumping duty on the products of certain companies — Effect of the annulment on the validity of an anti-dumping duty applicable to the products of other companies — No such effect — Presumption that measures of the EU institutions are valid (Art. 263 TFEU; Council Regulations No 2913/92, Art. 236(1), and No 1472/2006) 18. Own resources of the European Union — Repayment or remission of import duties — Conditions (Council Regulation No 2913/92, Art. 236(2)) 1. See the text of the decision. (see para. 56) 2. See the text of the decision. (see paras 58-62, 64) 3. In relation to protection against dumping, neither the wording of Article 11(8) of Regulation No 384/96 nor that of Article 236 of Regulation No 2913/92 establishing the Community Customs Code provides the slightest textual basis for the view that importers which have not relied on the procedure provided for by Article 11(8) of Regulation No 384/96 within the period laid down for that purpose would not or would no longer be entitled to seek to benefit from the procedure established by Article 236 of the Customs Code. Furthermore, the procedure established in Article 11(8) of Regulation No 384/96 does not pursue the same objective as the procedure provided for in Article 236 of the Customs Code. The procedure governed by Article 11(8) of Regulation No 384/96 is intended to enable importers which have paid anti-dumping duties to request the Commission, through the competent national authorities, that the duties be refunded where it is shown that the dumping margin on the basis of which they were paid has been eliminated, or reduced to a level which is below the level of the duty in force. In that procedure, importers do not challenge the legality of the anti-dumping duties imposed, but claim that there has been a change in the situation having a direct impact on the dumping margin originally determined. By contrast, the procedure provided for in Article 236 of the Customs Code enables those importers to request the refund of the import or export duties that they have paid where it is established that when those duties were paid they were not legally owed. Finally, the scheme of those two procedures is fundamentally different. In particular, the procedure established in Article 11(8) of Regulation No 384/96 falls within the competence of the Commission and can be applied only within a period of six months from the date on which the definitive amount of the duties to be levied was duly determined by the competent authorities, whereas the procedure provided for in Article 236 of the Customs Code falls within the remit of the national customs authorities and recourse may be had to it within a period of three years from the date on which the amount of those duties was communicated to the debtor. (see paras 68-70) 4. In actions brought before a national court against a national measure adopted on the basis of a regulation which has imposed an anti-dumping duty, importers which have paid an anti-dumping duty have a clear interest and capacity of their own to submit that the regulations imposing that duty are invalid on the ground that the duty was imposed without the Commission having first adjudicated, in accordance with the rules laid down by Regulation No 384/96, upon the claims for market economy treatment or individual treatment submitted by the producers or exporters of the products concerned. Failure to take account of those claims is liable to have an adverse effect on the anti-dumping duty that will be imposed, at the end of the procedure, on the products of the traders concerned. (see paras 72, 73) 5. See the text of the decision. (see paras 82-87) 6. In relation to protection against dumping, whilst it is true that recital 5 of Regulation No 384/96 on protection against dumped imports from countries not members of the European Community, as amended by Regulation No 461/2004, states that the language of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (Anti-Dumping Agreement) should be brought into EU legislation as far as possible, that expression must be understood as meaning that, even if the EU legislature intended to take into account the rules of that agreement when adopting Regulation No 384/96, it did not, however, show the intention of transposing each of those rules in that regulation. In particular, Article 2(7) of Regulation No 384/96 is the expression of the EU legislature’s intention to adopt an approach specific to the EU legal order, by laying down a special regime of detailed rules relating to the calculation of normal value for imports from non-market economy countries. The second subparagraph of Article 9(5) of Regulation No 384/96 refers to Article 2(7) of that regulation and constitutes an integral part of the regime which it lays down. (see paras 90, 91) 7. Having regard to the nature and the broad logic of the dispute settlement system established by the Agreement establishing the World Trade Organisation (WTO) and the considerable importance which that system accords to negotiation between the contracting parties, the EU judicature cannot, in any event, review the legality or validity of EU measures in the light of the WTO rules as long as the reasonable period granted to the European Union for complying with rulings and recommendations of the Dispute Settlement Body (DSB) of the WTO finding non-compliance with those rules has not expired, as otherwise grant of that period would be ineffective. Furthermore, the mere fact that that period has expired does not mean that the European Union has exhausted the possibilities under that dispute settlement system of finding a solution to the dispute between it and other parties. Accordingly, to require the EU judicature, merely because the period has expired, to review the legality or validity of the EU measures concerned in the light of the WTO rules and of the rulings and recommendations of the DSB finding non-compliance with them could have the effect of undermining the European Union’s position in its attempt to reach a solution which is both consistent with the WTO rules and mutually acceptable to the parties to the dispute. Therefore, even after the period granted has expired, a person cannot rely on such rulings and recommendations of the DSB in order to secure a review of the legality or validity of the EU institutions’ action, at any rate outside situations where, following those rulings and recommendations, the European Union has intended to assume a particular obligation. (see paras 94-96) 8. See the text of the decision. (see paras 105-109) 9. In relation to protection against dumping, the Council and the Commission are obliged to adjudicate upon a claim for market economy treatment made by any producer established in a non-market economy country which is a member of the World Trade Organisation (WTO) at the date of the initiation of an anti-dumping investigation, including where they have recourse to sampling as provided for in Article 17 of Regulation No 384/96. In the case of Regulation No 1472/2006 imposing a definitive anti-dumping duty and collecting definitely the provisional duty imposed on imports of certain footwear with uppers of leather originating in the People’s Republic of China and Vietnam, the fact that the Council and the Commission did not adjudicate upon the claims for market economy treatment submitted by the Chinese and Vietnamese exporting producers not sampled pursuant to Article 17 of Regulation No 384/96 constitutes an infringement of Article 2(7)(b) of that regulation. Accordingly, Regulation No 1472/2006 is invalid to that extent. (see paras 110, 112, 174, operative part 1) 10. In relation to protection against dumping, it is apparent from Article 9(5) of Regulation No 384/96 that, when the Council and the Commission adopt a regulation imposing anti-dumping duties, they are, in principle, obliged to specify in the regulation the amount of the anti-dumping duty imposed on each supplier covered by it, save where that individual treatment is impracticable. However, the first subparagraph of Article 9(5) of Regulation No 384/96 derogates from that principle in the situation, referred to in Article 2(7)(a) of the regulation, where the Council or the Commission adopts a regulation imposing anti-dumping duties on imports from a particular source, namely non-market economy countries. In that situation, the EU legislature laid down a different general rule, that it is both necessary and sufficient for the regulation adopted by the Council or the Commission to specify the amount of the anti-dumping duty at the level of the supplying country concerned. Nonetheless, the second subparagraph of Article 9(5) of Regulation No 384/96 provides that an individual anti-dumping duty is to be specified for suppliers established in a non-market economy country, if they also have the status of exporter, where they demonstrate on the basis of properly substantiated claims that they meet the criteria justifying such individual treatment. That individual anti-dumping duty will then be applied to them instead of the anti-dumping duty set countrywide which would have been applicable to them in the absence of such a claim. The Council and the Commission are, in principle, bound to examine claims for individual treatment which are addressed to them on the basis of the second subparagraph of Article 9(5) of Regulation No 384/96 and to adjudicate upon those claims. (see paras 118-120, 123) 11. See the text of the decision. (see para. 122) 12. The fact that the Council and the Commission did not adjudicate, before the adoption of Regulation No 1472/2006 imposing a definitive anti-dumping duty and collecting definitely the provisional duty imposed on imports of certain footwear with uppers of leather originating in the People’s Republic of China and Vietnam, upon the claims for individual treatment submitted by the Chinese and Vietnamese exporting producers not sampled pursuant to Article 17 of Regulation No 384/96 constitutes an infringement of Article 9(5) of that regulation. Accordingly, Regulation No 1472/2006 is invalid to that extent. Implementing Regulation No 1294/2009 imposing a definitive anti-dumping duty on imports of certain footwear with uppers of leather originating in Vietnam and originating in the People’s Republic of China, as extended to imports of certain footwear with uppers of leather consigned from the Macao Special Administrative Region (SAR), whether declared as originating in the Macao SAR or not, following an expiry review pursuant to Article 11(2) of Council Regulation (EC) No 384/96, is invalid for the same reasons and to the same extent. Examination of the relationship between the second subparagraph of Article 9(5) of Regulation No 384/96 and Article 17 of that regulation, which provides for sampling, reveals that the wording of Article 9(5) differs from that of Article 9(6) of the regulation, which contains an express reference providing for the application of Article 17. It follows that Article 9(5) of Regulation No 384/96 may be interpreted as meaning that, in the context thereof and in contrast to Article 9(6), Article 17 of the regulation is not relevant. Consequently, where an exporting producer established in a non-market economy country invokes the second subparagraph of Article 9(5) of Regulation No 384/96, on the ground that its individual export prices are determined in a manner sufficiently independently from the State, it seeks to obtain from the Council and the Commission recognition of the fact that it is, in that respect, in a situation fundamentally different from that of the other exporting producers established in that country. On that basis, it asks to be treated in an individualised manner, while those other exporting producers are treated, in practice, as a single entity. If it had to be accepted that the Council and the Commission may apply to an exporting producer placed in that situation an anti-dumping duty set countrywide and calculated on the basis of the weighted average dumping margin established for the sampled exporting producers, without having first adjudicated upon the exporting producer’s claim, that would effectively permit them to treat that exporting producer in the same way as the sampled exporting producers, although the latter are prima facie in a different situation. (see paras 124-127, 131, 132, 135, 174, operative part 2) 13. Like Regulation No 384/96, a regulation imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain products from third countries cannot be declared invalid on the sole ground that the Council and the Commission did not adjudicate within the time limit prescribed in Article 2(7)(c) of Regulation No 384/96 on the claims for market economy treatment which were submitted to them. The importer which relies on that irregularity must additionally demonstrate by concrete proof that it cannot be totally ruled out that, but for the irregularity, the regulation adopted at the end of the procedure would have had a content more favourable to its interests. Accordingly, since the persons concerned have not provided such proof, the failure to comply with that time limit does not result in the invalidity of Regulation No 1472/2006 imposing a definitive anti-dumping duty and collecting definitely the provisional duty imposed on imports of certain footwear with uppers of leather originating in the People’s Republic of China and Vietnam. That interpretation applies irrespective of whether or not the exporting producers concerned were sampled pursuant to Article 17 of Regulation No 384/96. (see paras 141-144, 174, operative part 2) 14. In relation to protection against dumping, there is no provision in Regulation No 384/96 relating to the measures to be taken, during the course of the investigation, if the support of the producers for the complaint falls, so that the Council and the Commission must be able to continue with the investigation, including where the degree of support for it falls and even if such a fall means that that support corresponds to a level of production which is below one of the two thresholds laid down in Article 5(4) of the regulation. Those thresholds are set by reference, first, to the support of those Union producers whose collective output constitutes more than 50% of the total production of that portion of the Union industry expressing its view on the complaint and, secondly, to the support of Union producers accounting for at least 25% of total production of the Union industry. (see paras 152, 153) 15. See the text of the decision. (see paras 161, 162, 165, 166) 16. See the text of the decision. (see paras 168-170) 17. The courts of the Member States may not rely on judgments in which the EU judicature annulled a regulation that had imposed anti-dumping duties, in so far as it related to certain exporting producers covered by it, in order to hold that the duties imposed on the products of other exporting producers covered by that regulation, and in the same situation as the exporting producers in respect of which the regulation was annulled, are not legally owed within the meaning of Article 236(1) of Regulation No 2913/92 establishing the Community Customs Code. As such a regulation has not been withdrawn by the institution which adopted it, annulled by the EU judicature or declared invalid by the Court in so far as it imposes duties on the products of those other exporting producers, those duties remain legally owed within the meaning of that provision. Where, in an action for annulment brought by a person directly and individually concerned by a regulation which imposed anti-dumping duties, the EU judicature annuls that regulation in so far as it concerns that person, such partial annulment does not affect the legality of the act’s other provisions, including the provisions which imposed anti-dumping duties on products other than those manufactured, exported or imported by that person. On the contrary, where such provisions have not been challenged within the time limit laid down in Article 263 TFEU by the persons who would have standing to seek their annulment, they are definitive as against those persons. Furthermore, until such time as they are withdrawn or declared invalid following a reference for a preliminary ruling or a plea of illegality, those provisions are presumed to be lawful, which means that they have full legal effect in relation to any other person. (see paras 183-185, operative part 3) 18. Article 236(2) of Regulation No 2913/92 establishing the Community Customs Code must be interpreted as meaning that the fact that a regulation imposing anti-dumping duties is declared invalid in whole or in part by the EU judicature does not constitute unforeseeable circumstances or force majeure within the meaning of that provision. (see paras 190-194, operative part 4)