Judgment;Summary — ECLI:EU:C:2021:190
Date: 2021-03-10
Language of the case: German
Court formation: Eighth Chamber
Subject matter: Agriculture and Fisheries;Dumping;External relations;Commercial policy
Procedure: Reference for a preliminary ruling - inadmissible
Origin: Germany

summary, that the contested 
import duty assessment notice is unlawful because Implementing Regulation 
2017/271 infringes Regulation 2016/1036 and is therefore invalid. The definition 
of the products under investigation is incorrect and infringes Articles 1(4) and 
13(1) of Regulation 2016/1036, because they contain aluminium converter foil 
(ACF) in addition to AHF, even though ACF is not a like product and should 
therefore have been excluded from the investigation. This error is also not 
remedied by applying Article 254 of Regulation (EU) No 952/2013 of the 
European Parliament and of the Council laying down the Union Customs Code 
(UCC), as provided for in Article 1(4) of Implementing Regulation (EU) 
2017/271. In addition, there is a manifest error of assessment in the Commission’s 
findings [Or. 4] regarding the change in the pattern of trade pursuant to the third 
subparagraph of Article 13(1) of Regulation 2016/1036. The Commission did not 
investigate the end use of the imported foil in the European Union and was 
therefore also unable to rule out that imports of ACF had also been taken into 
account. It cannot be inferred from the low level of cooperation that the non-
cooperating companies in fact exported slightly modified products. The low level 
of cooperation can also be explained by the fact that the non-cooperating 
companies assumed that they were not obliged to cooperate on account of the 
export of ACF. The arbitrary assumption of an 80% proportion of slightly 
modified products also gives rise to a manifest error of assessment regarding the 
alleged undermining of the remedial effect of the duty pursuant to the third 
subparagraph of Article 13(1) Regulation 2016/1036. Neither circumvention nor 
injury could be established in the course of the previous investigation procedure. 
Nevertheless, the investigation period for the anti-dumping duties imposed by 
Implementing Regulation 2017/271 overlapped with the previous investigations. 
5 The applicant requests that 
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the defendant’s import duty assessment notice of 5 May 2017 in the form of 
the decision of 2 February 2018 on the objection be annulled; 
in the alternative, leave to appeal on a point of law be granted. 
The defendant requests that 
the action be dismissed, 
and, as its grounds, refers to its decision on the objection. [Or. 5] 
II. 
Question 1: 
6 According to the wording of the first subparagraph of Article 13(1) of Regulation 
2016/1036, anti-dumping duties already imposed may be extended to imports of 
slightly modified like products from the country concerned. Pursuant to 
Article 1(4) of Regulation 2016/1036, like products are products which are 
identical to the product under consideration, or, in the absence of such a product, 
another product which has characteristics closely resembling those of the product 
under consideration. 
7 The anti-dumping duty already imposed resulted from Implementing Regulation 
2015/2384. Pursuant to Article 1(1) of that regulation, the latter covers aluminium 
foil of a thickness of not less than 0.008 mm and not more than 0.018 mm, not 
backed, not further worked than rolled, in rolls of a width not exceeding 650 mm 
and of a weight exceeding 10 kg, and originating in the People’s Republic of 
China. The product thus covered is commonly known as AHF (recital 29 of 
Implementing Regulation 2015/2384) and is further rewound into smaller rolls by 
downstream processors, called ‘rewinders’, following importation. The obtained 
product, consumer rolls, is used in multi-purpose short-life wrapping, mostly in 
households, catering, and food and floristry retail business (recital 31 of 
Implementing Regulation 2015/2384). 
8 By contrast, Article 1(1) of Implementing Regulation 2017/271 extends the anti-
dumping duty pursuant to Implementing Regulation 2015/2384 not only to 
slightly modified AHF but also to ACF by simply extending the anti-dumping 
duty to aluminium foil with the technical characteristics mentioned therein. As a 
result, both AHF and ACF are covered. ACF is aluminium foil intended for 
further processing. Converter industries laminate, coat, lacquer and otherwise 
process and integrate it into products that serve as packaging for food, medicine, 
cosmetics and tobacco or are used in insulation materials for the construction 
sector (recital 28 of Implementing Regulation 2017/271). 
9 Due to the different type of further processing required for ACF and a different 
use, it is clear that ACF and AHF cannot be [Or. 6] like products within the 
meaning of Article 1(4) of Regulation 2016/1036 and, even assuming slight 
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modifications within the meaning of the first and third subparagraphs and point (a) 
of the fourth subparagraph of Article 13(1) of Regulation 2016/1036, ACF cannot 
justify an extension. The Commission also proceeded on this basis when adopting 
Implementing Regulation 2017/271 in that it made provision under Article 1(4) of 
Implementing Regulation 2017/271 for a procedure by which the import of ACF 
having the technical characteristics of a product covered by Article 1(1) of 
Implementing Regulation 2017/271 could be exempted from anti-dumping duty. 
10 It is true that an importer of ACF can be exempted from anti-dumping duty 
pursuant to Article 1(4) of Regulation 2017/271 if he requests that the ACF be 
placed under the end-use procedure pursuant to Article 254 of the UCC. However, 
even the use of this procedure does not represent an insignificant burden for an 
importer of ACF. 
11 The end-use procedure pursuant to Article 254 of the UCC has to be requested by 
the respective importer pursuant to Article 158(1) of the UCC and must be 
authorised by the customs authorities pursuant to Article 211(1)(a) of the UCC 
and Article 239 of Commission Delegated Regulation (EU) 2015/2446 of 28 July 
2015 supplementing Regulation (EU) No 952/2013 of the European Parliament 
and of the Council as regards detailed rules concerning certain provisions of the 
Union Customs Code. In addition, it is also made conditional upon the provision 
of a guarantee pursuant to Article 211(3)(c) of the UCC, corresponding to the 
amount of anti-dumping duty which may be incurred (Article 90 of the UCC and 
Article 148(1) of Commission Implementing Regulation (EU) 2015/2447 of 
24 November 2015 laying down detailed rules for implementing certain 
provisions of Regulation (EU) No 952/2013 of the European Parliament and of the 
Council laying down the Union Customs Code). The obligation to provide a 
substantial guarantee constitutes significant detriment for an importer of a product 
that as such should not be encumbered by anti-dumping duty. 
12 In the case in dispute, justification for this encumbrance could be based solely on 
the fact that ACF and AHF — in so far as they are covered by the provisions of 
Article 1(1) of Implementing Regulation 2017/271 — cannot be distinguished 
from one other on the basis of technical characteristics, but rather only on the 
basis of their [Or. 7] use. The applicant also acknowledged this particularity in the 
practical distinction between AHF and ACF at the hearing. 
The subsequent questions: 
13 In the realm of measures based on Regulation 2016/1036, the Commission enjoys 
a broad discretion by reason of the complexity of the economic, political and legal 
situations which it has to examine, such that the judicial review of such an 
appraisal is limited to verifying whether the procedural rules have been complied 
with, whether the facts on which the contested choice is based have been 
accurately stated, and whether there has been a manifest error in the appraisal of 
those facts or a misuse of powers (see Court of Justice, judgments of 26 January 
2017, C-247/15 P, C- 253/15 P and C-259/15 P, ECLI:EU:C:2017:61, 
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paragraph 54, and of 26 January 2017, C-248/15 P, C-254/15 P and C-260/15 P, 
ECLI:EU:C:2017:62, paragraph 56). 
Taking this standard into account, the applicant has put forward a number of 
serious grounds for finding a manifest error of assessment in the adoption of 
Implementing Regulation 2017/271. It is for the Court of Justice alone to 
determine whether these grounds may justify the invalidity of Implementing 
Regulation 2017/271. 
Question 2 
14 Contrary to the view taken by the applicant, the General Disclosure Documents of 
16 December 2016 and 12 January 2017 and footnote 1 of recital 36 of 
Implementing Regulation 2017/271 could show how the Commission reached its 
conclusion that 80% of the products under investigation were slightly modified 
products. The Commission deducted from the total amount of exports from the 
PRC to the European Union the amount of ACF that originated from the 
cooperating companies. As the export volume of the cooperating companies 
represented 22% of the total exports to the European Union, but one of those 
companies also exported slightly modified products, the assumption that at least 
20% of the exports from the PRC were ACF gives no cause for objection. 
Regarding the remaining quantity, the Commission assumed, on the basis of [Or. 
8] the low level of cooperation by the exporting companies in the PRC, that 
merely a slightly modified product was involved. 
15 The Commission based this conclusion on Article 18(1) of Regulation 2016/1036. 
It is true that Article 18 of Regulation 2016/1036 does not establish a legal 
presumption whereby it is possible to infer the existence of circumvention directly 
from the non-cooperation of the parties interested or concerned, thereby 
exempting the EU institutions from any requirement to adduce proof. However, 
given that it is possible to make findings, even definitive findings, on the basis of 
the facts available and to treat a party which does not cooperate, or does not 
cooperate fully, less favourably than if it had cooperated, it is equally evident that 
the EU institutions are authorised to act on the basis of a body of consistent 
evidence showing the existence of circumvention for the purposes of Article 13(1) 
of Regulation 2016/1036 (Court of Justice, judgments of 26 January 2017, 
ECLI:EU:C:2017:61, paragraph 64, and of 26 January 2017, ECLI:EU:C:2017:62, 
paragraph 66). 
16 The referring court is unable to ascertain whether, in the present case, such a body 
of consistent evidence exists on the basis of the information arising from 
Commission Implementing Regulation (EU) 2016/865 of 31 May 2016 initiating 
an investigation concerning the possible circumvention of anti-dumping measures 
imposed by Implementing Regulation (EU) 2015/2384 on imports of certain 
aluminium foil originating in the People’s Republic of China by imports of 
slightly modified certain aluminium foil from the People’s Republic of China, and 
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making such imports subject to registration, and from Implementing Regulation 
2017/271. 
17 The applicant asserted circumvention practices as early as in the request to 
investigate, as shown by the statements in recitals 10 to 14 of Implementing 
Regulation 2016/865. The existence of these circumvention practices was also 
established in the investigation on the basis of the activities of the cooperating 
companies in the PRC (recitals 44 to 49 of Implementing Regulation 2017/271). 
The applicant clearly also used one of these circumvention practices prior to the 
entry into force of Implementing Regulation 2017/271 by purchasing AHF in rolls 
of a width exceeding 650 mm. It slit these rolls which were then cut by rewinders 
to lengths [Or. 9] customary in the trade in order to be able to sell them to end 
consumers. 
18 Nevertheless, the applicant’s statements in its publicly accessible application 
militate against circumvention to the extent assumed by the Commission. 
According to the application, the imports of slightly modified aluminium foil 
exceeded those of ACF only in the years 2011 to 2015, but by no means reached 
80%. Furthermore, according to the applicant, the consumption of AHF in the 
European Union was only around 55% of the consumption of ACF. 
19 The specific reasons behind the low level of cooperation of the producers in the 
PRC could not be gathered from the documents submitted to the court. However, 
according to the questionnaire sent, the company that was asked to cooperate had 
to indicate that it did not engage in any circumvention practices within the 
meaning of Article 13(1) of Regulation 1225/2009 — this provision 
corresponding verbatim to Article 13(1) of Regulation 2016/1036 — in relation to 
the export of the products under investigation. If companies cooperated, they 
could either have admitted to the acts of circumvention or not made the 
declaration regarding circumvention, with the result that they would have filled in 
the questionnaire incompletely. Had they exported only ACF, however, as was the 
case with four of the cooperating companies, they could have received exemptions 
per se. As the non-cooperating companies did not avail themselves of this 
opportunity, however, the conclusion that they also exported slightly modified 
products is by no means implausible in any event. 
20 If the quantity of slightly modified products has been determined incorrectly by a 
significant margin, the Commission may have committed a manifest error of 
assessment when adopting Implementing Regulation 2017/271 in so far as it 
assessed the undermining of the remedial effects of the anti-dumping duty. 
Question 3 
21 In the context of the investigation initiated by Implementing Regulation 2016/865, 
the Commission found that the technical criteria for distinguishing between AHF 
and ACF that were previously regarded as being decisive [Or. 10] were 
inadequate (recitals 68 and 69 of Implementing Regulation 2017/271). Following 
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discussions with the parties to the proceedings, the Commission ultimately 
decided that the most appropriate approach would be to take end use as the basis 
(recital 72 of Implementing Regulation 2017/271; General Disclosure Document 
of 12 January 2017, paragraph 70). 
22 After this, the Commission did not further investigate the end use that takes place 
in the European Union. Thus, the applicant takes the view that the Commission 
has made a manifest error of assessment because it was only in the European 
Union that the end use could have been investigated. It was not possible to do this 
on the premises of the cooperating exporting producers in the PRC (see recital 80 
of Implementing Regulation 2017/271). Due to this omission, there was also not a 
sufficient factual basis for finding a change in the pattern of trade (see recital 40 
of Implementing Regulation 2017/271). The referring court finds these 
conclusions to be plausible. As the Commission’s decision to distinguish between 
AHF and ACF on the basis of their use was not taken until towards the end of the 
nine-month investigation period (second subparagraph of Article 13(3) of 
Regulation 2016/1036), there was not actually enough time to investigate end use 
in the European Union. 
23 The court also takes the view that the applicant is also directly affected with 
regard to the circumstances that may substantiate the invalidity of Implementing 
Regulation 2017/271. They have a direct effect on its legal situation, as 
Implementing Regulation 2017/271 is the legal basis for the anti-dumping duty 
imposed on it (cf. Court of Justice, judgment of 26 September 2000, T-80/97, 
paragraph 65, ECLI:EU:T:2000:216). 
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