Judgment;Summary — ECLI:EU:C:2023:508
Date: 2023-06-22
Language of the case: Dutch
Court formation: Seventh Chamber
Subject matter: Agriculture and Fisheries;Dumping;External relations;Commercial policy
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary  C-268/22 – 1 
Case C-268/22 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice  
Date lodged:  
13 April 2022 
Referring court:  
Nederlandstalige rechtbank van eerste aanleg Brussel (Belgium)  
Date of the decision to refer:  
14 March 2022 
Applicant:  
VITOL SA 
Defendant:  
Belgische Staat  
  
Subject matter of the main proceedings 
The applicant claims the refund of anti-dumping duties paid pursuant to Council 
Implementing Regulation No 1194/2013 of 19 November 2013 imposing a 
definitive anti-dumping duty and collecting definitively the provisional duty 
imposed on imports of biodiesel originating in Argentina and Indonesia, arguing 
in that regard that that regulation is invalid. The defendant refuses to make the 
refund, arguing that the aforementioned regulation is valid.  
Subject matter and legal basis of the request 
The request concerns the validity of Implementing Regulation No 1194/2013 and 
is made pursuant to subparagraph (b) of the first paragraph of Article 267 TFEU.  
Question referred for a preliminary ruling 
Is Implementing Regulation No 1194/2013, as amended by Regulation 2017/1578, 
contrary to the basic regulation No 1225/2009, inter alia because:  
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-268/22 
 
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– it has not been demonstrated that the conditions were met for disregarding, in 
the context of calculating the normal value of the like product, the costs 
associated with the production and sale of that product, as reflected in the 
records of the Argentinian exporting producers examined, in accordance with 
the rule laid down in Article 2(5) of the basic regulation,  
– the effects of the imports were erroneously assessed cumulatively in 
accordance with Article 3(4) of the basic regulation and it was thus not 
adequately demonstrated that dumped imports had caused injury within the 
meaning of the basic regulation, as referred to in Article 3(6) and (7) of that 
regulation,  
– and there was thus no question of dumping and no anti-dumping duty could be 
imposed as referred to in Article 1 of the basic regulation?  
Provisions of European Union law relied on  
Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection 
against dumped imports from countries not members of the European Community 
(‘the basic regulation’), in particular, Article 1, Article 2(5) and Article 3(4), (6) 
and (7) 
Commission Regulation (EU) No 490/2013 of 27 May 2013 imposing a 
provisional anti-dumping duty on imports of biodiesel originating in Argentina 
and Indonesia 
Council Implementing Regulation (EU) No 1194/2013 of 19 November 2013 
imposing a definitive anti-dumping duty and collecting definitively the 
provisional duty imposed on imports of biodiesel originating in Argentina and 
Indonesia, in particular, Articles 1 and 2 
Commission Implementing Regulation (EU) 2017/1578 of 18 September 2017 
amending Implementing Regulation (EU) No 1194/2013 imposing a definitive 
anti-dumping duty and collecting definitively the provisional duty imposed on 
imports of biodiesel originating in Argentina and Indonesia  
Commission Implementing Regulation (EU) No 2018/1570 of 18 October 2018 
terminating the proceedings concerning imports of biodiesel originating in 
Argentina and Indonesia and repealing Implementing Regulation (EU) 
No 1194/2013, in particular, recitals 92 and 94 
Article 263, first, fourth and sixth paragraphs, TFEU 
Article 267, first and second paragraphs, TWEU  
VITOL 
 
3 
European Union case-law relied on  
Judgment of 15 July 1963, Plaumann v Commission, 25/62, EU:C:1963:17 
Judgment of 4 February 2016, C & J Clark International and Puma, C-659/13 and 
C-34/14, EU:C:2016:74 
Judgment of 25 July 2018, Georgsmarienhütte and Others, C-135/16, 
EU:C:2018:582 
Judgment of 3 July 2019, Eurobolt, C-644/17, EU:C:2019:555 
Judgment of 19 September 2019, Trace Sport, C-251/18, EU:C:2019:766 
Judgment of 10 March 2021, Von Aschenbach & Voss, C-708/19, EU:C:2021:190 
Judgment of 15 September 2016, Unitec Bio v Council, T-111/14, EU:T:2016:505 
Succinct presentation of the facts and procedure in the main proceedings 
1 On 28 May 2013, the European Commission (‘the Commission’), by Regulation 
No 490/2013, imposed a provisional anti-dumping duty on imports of biodiesel 
originating in Argentina and Indonesia. On 19 November 2013, the Council of the 
European Union (‘the Council’), by Implementing Regulation No 1194/2013, 
imposed a definitive anti-dumping duty on imports of biodiesel of those origins.  
2 A number of companies (other than those referred to in the following paragraph) 
challenged Implementing Regulation No 1194/2013 directly before the General 
Court. By judgments of 15 September 2016, the General Court annulled Articles 1 
and 2 of Implementing Regulation No. 1194/2013. Those judgments became final 
in 2018, after the Council had waived its appeal.  
3 On 6 March 2018, the company incorporated under Swiss law, Vitol SA (‘the 
applicant’), filed two declarations for the importation of biodiesel from Argentina. 
According to one of the declarations, the Argentine company, Cofco Argentina 
Sociedad (‘Cofco’), was the producer. The applicant paid anti-dumping duties in 
relation to those declarations pursuant to Implementing Regulation No 1194/2013.  
4 On 3 April 2018, the applicant submitted an application for the refund of the anti-
dumping duties paid. On 22 June 2018, the defendant rejected the application 
relating to the declaration concerning the producer Cofco.  
5 After the rejection of the applicant’s objection and administrative appeal, the 
applicant lodged an appeal with the referring court on 13 November 2020.  
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-268/22 
 
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The essential arguments of the parties in the main proceedings 
6 According to the applicant, Implementing Regulation No 1194/2013, as amended 
by Implementing Regulation 2017/1578, is invalid in that:  
i) the investigation resulting in Implementing Regulation No 2017/1578 still 
wrongly assumed the existence of dumping in respect of exports by 
Indonesian exporters/producers and confirmed the anti-dumping duties 
imposed by the original regulation contrary to Article 1 of the basic 
regulation;  
ii) the injury investigation and the determination of a causal link between injury 
and dumped imports were carried out on the basis of a cumulative 
assessment of the effects of imports from Argentina and Indonesia, contrary 
to Article 3(4) of the basic regulation, since a correct calculation showed 
that the dumping margin for imports of biodiesel from Indonesia was de 
minimis; 
iii) it was not adequately demonstrated that there was a causal link between 
dumped imports of biodiesel from Argentina, considered in isolation from 
imports of biodiesel from Indonesia, and material injury to the European 
industry, as required by Article 3(6) and Article 3(7) of the basic regulation.  
7 In view of the general scope of those grounds, the applicant submits that the 
invalidity of Implementing Regulation No 1194/2013 is not limited to imports of 
biodiesel sold by producers who have directly challenged Implementing 
Regulation No 1194/2013, as amended by Implementing Regulation 2017/1578, 
before the General Court but also applies to the applicant’s imports of biodiesel 
from Argentina and Indonesia if they are subject to anti-dumping duties on the 
basis of Implementing Regulation No 1194/2013, as amended by Implementing 
Regulation 2017/1578.  
8 In the defendant’s view, the request for a preliminary ruling is inadmissible, since 
Implementing Regulation No 1194/2013 is of direct and individual concern to the 
applicant within the meaning of the fourth paragraph of Article 263 TFEU, or at 
least consists of regulatory acts which are of direct concern to the applicant and do 
not entail implementing measures, so that the applicant could bring an action for 
annulment of Implementing Regulation No 1194/2013 and is now no longer in a 
position to call this regulation into question.  
9 In that regard, the defendant submits that the applicant is in a special position as 
an importer so that the Implementing Regulation is of direct and individual 
concern to it given that the applicant is: (i) one of the largest energy traders in the 
world and by virtue of its market position is clearly distinct from other importers 
of biodiesel in the European Union, (ii) a final consumer because the biodiesel is 
delivered to and used by large oil refineries, and (iii) the main competitor of the 
producers of biodiesel in the European Union.  
VITOL 
 
5 
10 In that regard, the defendant also argues that: (i) the reference to unrelated 
importers in the applicable regulations undeniably applies to the applicant; (ii) the 
applicant is mentioned by name in subsequent regulations; (iii) the applicant’s 
exporting producer (Cofco) is mentioned by name in a subsequent regulation; and 
(iv) even if the Implementing Regulation is not of direct concern to the applicant, 
it could have been party to the application for annulment made by its exporting 
producer.  
Succinct presentation of the reasoning in the request for a preliminary ruling  
11 The referring court notes, first, that regulations imposing an anti-dumping duty 
apply to all the economic operators concerned and are thus normative. Moreover, 
it notes that the payment of anti-dumping duties provided for by the regulation is 
imposed by virtue of acts of the national authorities and that it cannot be assumed 
that the regulation manifestly does not entail any implementing measures within 
the meaning of the last sentence of the fourth paragraph of Article 263 TFEU.  
12 Consequently, the question remains whether an act is undoubtedly of direct and 
individual concern to the applicant within the meaning of the fourth paragraph of 
Article 263 TFEU. Since it is only individual concern that is at issue here, the 
referring court, referring to the Plaumann judgment and the C&J Clark 
International and Puma judgment, argues that the individualisation of an 
importer, even where he is associated with exporters, requires proof that the data 
relating to his trading activity have been taken into account in order to establish 
dumping practices or, failing that, that he has other special attributes which are 
peculiar to him and which distinguish him from all other persons. In that regard, 
the referring court states that the defendant has not adduced specific evidence in 
support of its assertions referred to in paragraph 9 above, which are formally 
contested by the applicant.  
13 Moreover, the referring court notes that, contrary to the defendant’s assertions, 
there is no evidence either that the applicant participated or cooperated in the 
Commission’s investigation. The referring court also notes that neither the 
applicant nor its producer is mentioned in the Implementing Regulation. Finally, 
the referring court does not see any problem with the fact that the name of the 
applicant or its producer might have been mentioned or that the applicant might 
have been able to be party to any action for annulment brought by Cofco.  
14 In the opinion of the referring court, it cannot be inferred from the foregoing that 
Implementing Regulation No 1994/2013 is undoubtedly of individual concern to 
the applicant and, consequently, that it was undoubtedly entitled to bring an action 
for annulment of that regulation pursuant to the fourth paragraph of Article 263 
TFEU.  
15 Next, the referring court examines whether a problem might possibly arise with 
regard to the validity of Implementing Regulation No 1994/2013.  
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-268/22 
 
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16 In that regard, the referring court refers, first, to the judgments of the General 
Court of 15 September 2016 (including the judgment in Unitec Bio v Council, 
T-111/14), in which it held, inter alia, that the Council had not demonstrated that 
the conditions were met for disregarding, in the context of calculating the normal 
value of the like product, the costs associated with the production and sale of that 
product, as reflected in the records of the Argentinian exporting producers 
examined, in accordance with the rule laid down in Article 2(5) of the basic 
regulation, that the institutions should not have taken the view that the accounts of 
the Argentinian and Indonesian exporting producers did not reasonably reflect the 
prices of the raw materials, and that the institutions should not have disregarded 
those accounts when calculating the normal value of biodiesel produced in 
Argentina and Indonesia.  
17 Second, the referring court finds that – contrary to what the defendant seems to 
imply – it does not follow from recitals 92 and 94 of Implementing Regulation 
No 2018/1570, and, in particular, from the wording ‘… Accordingly, the anti-
dumping duties that have been levied on other companies have been legally 
collected under Union law’, that, in a specific customs dispute, the validity of 
Implementing Regulation No 1194/2013 can no longer be called into question by 
referring a question to the Court for a preliminary ruling. Nor, according to the 
referring court, is that the case on the basis of the finding that Implementing 
Regulation No 2018/1570 does not have retroactive effect.  
18  Consequently, the referring court refers the question for a preliminary ruling.