Judgment — ECLI:EU:C:2015:236
Date: 2015-04-16
Language of the case: German
Court formation: Seventh Chamber
Subject matter: Dumping;External relations;Commercial policy
Procedure: Reference for a preliminary ruling
Origin: Germany

Summary — Judgment of the Court (Seventh Chamber), 16 April 2015 1. Plea of illegality — Incidental nature — Challenge before a national court as to the legality of an anti-dumping regulation brought by a trader who was entitled to bring an action to have the regulation annulled but did not exercise his right to do so — Not possible to plead invalidity of the anti-dumping regulation as an incidental issue (Arts 230, fourth para., EC and 234(b) EC) 2. Actions for annulment — Natural or legal persons — Measures of direct and individual concern to them — Regulation imposing anti-dumping duties — Producers and exporters from non-member countries — Community importers and traders having a special relationship with producers (Art. 230, fourth para., EC; Council Regulation No 384/96, Arts 3(5), 6 and 7) 3. Questions referred for a preliminary ruling — Assessment of validity — Question on the validity of a regulation not having been contested on the basis of Article 230 EC — Main action brought by a company not being clearly entitled to bring an action for annulment — Admissibility (Art. 230, fourth para., EC and 234(b) EC) 4. Common commercial policy — Protection against dumping — Injury — Discretion of the institutions — Establishing a causal link — Obligations of the institutions — Taking into account of matters extraneous to the dumping — Impact of such factors on the establishment of a causal link (Council Regulations No 384/96, Arts 3(5), (6) and (7), and No 2320/97) 1. See the text of the decision. (see para. 18) 2. See the text of the decision. (see paras 19-22) 3. The general principle, which has the effect of ensuring that every person has or will have had the opportunity to challenge a Community measure which forms the basis of a decision adversely affecting him, does not in any way preclude a regulation from becoming definitive as against an individual with respect to whom it must be regarded as an individual decision whose annulment he could undoubtedly have sought under Article 230 EC, a fact which prevents that individual from pleading the unlawfulness of that regulation before the national court. However, concerning defence against dumping practices, an undertaking which is not sufficiently linked to the exporting undertakings and which does not fall within a particular situation differentiating it from all other economic operators for it to be considered that it is concerned directly and individually, within the meaning of Article 230 EC, by a Regulation introducing definitive anti-dumping duties, may raise, before a national court, a plea of illegality against such a regulation where it is the basis of a decision against that undertaking. In those circumstances, the national court is not bound by the definitive character of the anti-dumping duty. (see paras 18, 26, 29) 4. In the sphere of measures to protect trade, when determining injury which causes harm to Community industry, the institutions of the European Union are under an obligation to consider whether the injury on which they intend to base their conclusions does in fact derive from the dumped imports and to disregard any injury deriving from other factors, particularly from the conduct of Community producers themselves. It is also for them to verify that the injury attributable to those other factors is not taken into account in the determination of injury within the meaning of Article 3(7) of Regulation No 384/96 on protection against dumped imports from countries not members of the European Community and, consequently, that the anti-dumping duty imposed does not go beyond what is necessary to offset the injury caused by the dumped imports. However, since, at the time of adoption of Regulation No 2320/97 instituting definitive anti-dumping duties on imports of certain seamless pipes and tubes of iron or non-alloy steel originating in Hungary, Poland, Russia, the Czech Republic, Romania and the Slovak Republic, repealing Regulation No 1189/93 and terminating the proceeding in respect of such imports originating in the Republic of Croatia, the decision of the Commission in relation to possible anti-competitive conduct by Community undertakings operating on the same market as that which that regulation sought to protect had not yet been taken, that decision by the Commission could not be considered a known factor within the meaning of Article 3(7) of basic regulation No 384/96, that the Council should have taken into account in determining whether harm had been caused to a Community industry so as to justify the anti-dumping measure. Moreover, the purely preparatory nature of an investigation established by the Commission and concerning possible infringement of the rules of competition prevents the anti-competitive conduct it was concerned with from being regarded, at least until the outcome of that investigation, as established and causing harm to Community industry. (see paras 35-41, 43-45)