Opinion of the Advocate General — ECLI:EU:C:2015:628
Date: 2015-09-24
Language of the case: German
Subject matter: Dumping;External relations;Commercial policy
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary — Judgment of the Court (Fourth Chamber), 28 January 2016 1. Questions referred for a preliminary ruling — Jurisdiction of the national court — Determination of the need for and relevance of the questions referred — Questions relating to the validity of an EU law — No obligation for the Court to evaluate the grounds for invalidity relied on by one of the parties to the main proceedings which are not mentioned by the referring court (Art. 267 TFEU) 2. Questions referred for a preliminary ruling — Assessment of validity — Declaration that a regulation is void — Effects —Application by analogy of Article 266 TFEU — Obligations of the institutions —Obligation to take the necessary measures to remedy the irregularity found — Account to be taken of both the operative part and the supporting grounds of the ruling of invalidity — Adoption of a new act — Reopening of the procedure at the stage at which the irregularity was found to have occurred — Lawfulness (Arts 266 TFEU and 267 TFEU) 3. Common commercial policy — Protection against dumping — Investigation — Period of 15 months in which to complete an investigation — Scope — Procedures reopened following a judgment of invalidity — Not included (Council Regulation No 1225/2009, Arts 5(9) and 6(9)) 4. Common commercial policy — Protection against dumping — Investigation — Reference period to be taken into account — Reopening of the initial investigation to determine the normal value following a judgment of invalidity — No obligation to use an updated reference period (Arts 266 TFEU and 267 TFEU; Council Regulations No 1225/2009, Arts 6(1) and 11(2) and No 158/2013) 1. See the text of the decision. (see paras 44-46) 2. Where the Court rules, in proceedings under Article 267 EC, that an act of the European Union is invalid, its decision has the legal effect of requiring the institutions concerned to take the necessary measures to remedy that illegality, as the obligation laid down in Article 266 TFEU in the case of a judgment annulling a measure applies in such a situation by analogy to judgments of the Court declaring an act of the European Union to be invalid. In order to fulfil that obligation, the institutions concerned are required to have regard not only to the operative part of the judgment of annulment or invalidity, but also to the grounds which led to the judgment and constitute its essential basis, in so far as they are necessary to determine the exact meaning of what is stated in the operative part. It is those grounds which, on the one hand, identify the precise provision held to be illegal and, on the other, indicate the specific reasons which underlie the finding of illegality contained in the operative part and which the institution concerned must take into account when replacing the measure annulled or declared invalid. Nevertheless, it should be recalled that Article 266 TFEU requires the institutions which adopted the act annulled only to take the necessary measures to comply with the judgment annulling it. Furthermore, the annulment of a Union act does not necessarily affect the preparatory acts thereof. Consequently, except where the irregularity found rendered the entire procedure null and void, those institutions may, in order to adopt an act intended to replace a preceding act annulled or declared invalid, reopen the procedure at the stage at which that irregularity was committed. It is not necessary that the option of reopening the procedure should be expressly provided for by the applicable legislation in order that the institutions which adopted an act annulled or declared invalid may avail themselves of it. (see paras 48-52) 3. Article 6(9) of Regulation No 1225/2009 on protection against dumped imports from countries not members of the European Community provides that, when an anti-dumping investigation is opened, the investigation that follows must, in any event, be closed within 15 months following its initiation. However, that provision, inasmuch as it refers expressly to procedures opened under Article 5(9) of that regulation, covers only the initial procedures and not those procedures that have been reopened following a judgment of annulment or invalidity. Moreover, whilst the time limit of 15 months laid down in that provision is intended to ensure the rapid completion of the procedures laid down in that regulation, to interpret of Article 6(9) differently would lead, in practice, to the undue prolongation of the procedures laid down in that regulation by requiring the institutions to recommence entirely those procedures following such a judgment and thus delay their termination. (see paras 58-60) 4. Article 6(1) of Regulation No 1225/2009 on protection against dumped imports from countries not members of the European Community provides that the reference period used for the investigation must normally cover a period of no less than six months immediately before the initiation of the procedure. However, the rules for determining the reference period to be taken into account for anti-dumping investigations set out in that provision are a guide and not mandatory. It is true that the investigation must be carried out on the basis of as recent information as possible in order to be able to determine the anti-dumping duties appropriate for protecting the Community industry against dumping. It is clear, however, from Article 11(2) of the abovementioned regulation that, on the basis of data relating to a single reference period, the institutions in question may maintain, for five years, anti-dumping duties appropriate for protecting the Community industry against dumping. Consequently, in the context of the reopening of a procedure at the stage of the investigation intended to establish the existence of dumping, for the purpose of giving effect to a judgment of the Court, where the new regulation was limited to reinstating the anti-dumping duties for the period during which the preceding regulation should have had effect, data relating to the reference period on the basis of which the preceding regulation, which was held to be invalid, was adopted, was information that remained sufficiently recent in order to justify the imposition of anti-dumping duties until the date of expiry of new regulation. It follows that, after the reopening of the procedure, the Council and the Commission could, without infringing Article 6(1) of the abovementioned regulation, refrain from relying on an updated reference period for the purposes of determining the normal value of the product concerned, held to be irregular by a judgment of the Court. (see paras 63-70)