Opinion of the Advocate General — ECLI:EU:C:2015:206
Date: 2015-03-26
Language of the case: English
Subject matter: Dumping;External relations;Commercial policy
Procedure: Action for annulment;Appeal - unfounded
Origin: Netherlands;Poland

Summary — Judgment of the Court (Grand Chamber), 8 September 2015 1. Common commercial policy — Protection against dumping — Review procedure — Investigation — Obligation on the Commission to bring an end to proceedings once the degree of support for a complaint has fallen below the minimum threshold of 50% of Community production — No such obligation (Council Regulation No 384/96, Arts 5(4), 9(1) and 11(5)) 2. EU law — Interpretation — Methods — Interpretation in the light of the international agreements concluded by the Union — Interpretation of Regulation No 384/96 in the light of the 1994 GATT Anti-dumping Agreement — Concept of Community industry (Agreement on the implementation of Article VI of the General Agreement on Tariffs and Trade, ‘1994 Anti-dumping Agreement’; Council Regulation No 384/96, Recitals 1 to 3 and 5) 3. Common commercial policy — Protection against dumping — Injury — Notion of Community industry — Collective output of producers constituting a major proportion — Meaning — Interpretation in the light of the 1994 GATT Anti-dumping Agreement — Reference to the minimum threshold of 25% referred to in Article 5(4) of Regulation No 384/96 (Agreement on the implementation of Article VI of the General Agreement on Tariffs and Trade, ‘1994 Anti-dumping Agreement’, Art. 4(1); Council Regulation No 384/96, Art. 4(1) and 5(4)) 1. Although there is no provision in Basic Anti-dumping Regulation No 384/96 as regards the measures to be taken by the Commission, during the course of an investigation, if the support of the producers for the complaint or request for a review falls, it follows, a fortiori, from Article 9(1) of that regulation that the EU institutions are entitled to continue the review procedure notwithstanding the fact that it was possible that the 50% threshold referred to in Article 5(4) of the regulation is no longer met. Since, in the case where a complaint or request for a review is withdrawn, the EU institutions concerned may, by virtue of Articles 9(1) and 11(5) of Basic Anti-dumping Regulation No 384/96, continue with the investigation, that must apply a fortiori when the degree of support for a complaint or request for a review merely falls. Therefore, a fall in the Community producers’ support for a complaint or a request for a review is not such as to lead necessarily to the termination of the investigation, even if such a fall implies that that support corresponds to a level of production which is below one of the two thresholds laid down in Article 5(4) of Basic Anti-dumping Regulation No 384/96. Such an interpretation is all the more appropriate since, during the investigation, the positions of the representatives of the Community industry may change in opposite directions. Such variations cannot impede the proper conduct of the investigation at issue. (see paras 51-55) 2. EU legal acts must, as far as possible, be interpreted in a manner that is consistent with international law, in particular where they are intended specifically to give effect to an international agreement concluded by the Union. In that regard, it follows from recitals 1 to 3 and 5 of Basic Anti-dumping Regulation No 384/96 that the concept of ‘Community industry’, within the meaning of Article 4(1) of that regulation, has to be interpreted in a manner consistent with Article VI of the 1994 General Agreement on Tariffs and Trade (Anti-dumping Agreement). (see paras 60, 61) 3. Article 4(1) of Basic Anti-dumping Regulation No 384/96, concerning the definition of the Community industry, clarifies the concept of ‘major proportion’ of the total Community production of like products by a reference to Article 5(4) of that regulation. In that regard, Articles 4(1) and 5(4) of that regulation, read in the light of Article 4.1 of the 1994 Anti-Dumping Agreement, can be construed as referring solely to the minimum 25% threshold, laid down in Article 5(4) of Basic Anti-dumping Regulation No 384/96. In so far as the 50% threshold, laid down in Article 5(4), relates solely to the relative weight of the Community producers supporting the complaint within the group of Community producers supporting or opposing it, that threshold is not relevant to determining whether the Community producers supporting the complaint represent a ‘major proportion’ of the total production of the like product produced by the Community industry within the meaning of Article 4(1) of Basic Anti-dumping Regulation No 384/96. By the reference to that threshold, Article 4(1) of that regulation thus simply makes clear that a combined output of the Community producers supporting the complaint and not reaching 25% of the total Community production of the like product cannot, in any event, be regarded as sufficiently representative of the Community production. Where the combined output of those Community producers exceeds that threshold, anti-dumping duties may be imposed or maintained if the EU institutions concerned are able to establish, taking into account all the relevant facts of the case, that the injury stemming from the imports of the dumped product affects a major proportion of the total Community production of the like products. In that regard, a portion of Community production very close to 50% of the total production of the like product produced by the Community industry can be considered to constitute clearly a major proportion of that production. Article 4(1) of Basic Anti-dumping Regulation No 384/96 refers, indeed, to the concept of a ‘major proportion’ of the Community production, and not to the ‘majority of the Community production’. (see paras 64, 67-70, 72)