Opinion of the Advocate General — ECLI:EU:C:2014:118
Date: 2014-02-27
Language of the case: Bulgarian
Subject matter: Dumping;External relations;Commercial policy
Procedure: Reference for a preliminary ruling
Origin: Bulgaria

Summary — Judgment of the Court (Second Chamber), 18 September 2014 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 which did not clearly have standing to bring an action for annulment — Admissibility (Arts 263, fourth para. TFEU and 267, point (b) TFEU) 2. Common commercial policy — Protection against dumping — Review procedure — Change in the calculation methodology — Conditions — Change in circumstances — Imports subject to a price undertaking — Absence of any reliable basis for the methodology used in the original investigation — Export prices constructed on a reasonable basis (Council Regulation No 384/96, Arts 2(8) and (9) and 11(2), (3), (9) and (10)) 1. The possibility for a litigant to plead before the court hearing its action the invalidity of provisions in European Union acts presupposes that the party in question had no right of direct action under Article 263 TFEU by which it could challenge those provisions. Consequently, if it is beyond any doubt that such a direct action is admissible, the question referred for a preliminary ruling as to validity is inadmissible. In that regard, regulations imposing an anti-dumping duty, although by their nature and scope of a legislative nature, may be of direct and individual concern to, inter alia, those producers and exporters of the product in question who are charged with practising dumping on the basis of information originating from their business activities. By contrast, an independent importer who, first, has no association with the undertaking the goods of which have had anti-dumping duties imposed on them and, secondly, did not participate in the Commission’s administrative procedure in the context of the investigation to determine the anti-dumping duties does not have locus standi to bring an action against a regulation imposing an anti-dumping duty. (see paras 28-30, 35) 2. As regards Council Regulation No 1279/2007 imposing a definitive anti-dumping duty on certain iron or steel ropes and cables originating in the Russian Federation, and repealing the anti-dumping measures on imports of certain iron or steel ropes and cables originating in Thailand and Turkey, consideration of the questions referred for a preliminary ruling by the referring court has disclosed no factor of such a kind as to affect the validity of that regulation. Although the methodology for calculating the dumping margins followed in a review must, in principle, be the same as that used in the original investigation which led to the imposition of the anti-dumping duty, Article 11(9) of the basic anti-dumping regulation No 384/96, however, provides for an exception which allows a different methodology to be applied in a case in which the circumstances have changed. The institutions concerned are therefore entitled to apply a methodology in the review procedures which is different from that applied in the original investigation, first, if a change in circumstances occurs in relation to the original investigation, resulting from price undertakings to which the exports of the undertaking from a third country the goods of which have had anti-dumping duties imposed on them were subject and, secondly, if the methodology used in the original investigation is not a reliable basis for the review. In review proceedings the Council does not make an inappropriate or unreasonable choice in deciding to use the export prices to third countries of the undertaking the goods of which have had anti-dumping duties imposed on them as an indicator of what that undertaking’s export prices to the Community would be if there were no price undertaking. It is indeed true that Article 2(9) of the basic anti-dumping regulation does not expressly refer to the existence of a price undertaking as one of the circumstances which is capable of justifying the use of a methodology which is different from that provided for in Article 2(8) of that regulation. However, those circumstances are not listed exhaustively and the finding that the export prices are unreliable because of that undertaking also justifies the application of that article, provided that the prices are constructed on a ‘reasonable basis’. (see paras 40, 41, 49, 59-61, operative part)