Opinion of the Advocate General — ECLI:EU:C:2006:236
Date: 2006-04-06
Language of the case: English
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Dumping;External relations;Commercial policy
Procedure: Reference for a preliminary ruling
Origin: United Kingdom

Summary of the Judgment 1. Preliminary rulings – Assessment of validity – Not possible to rely on the WTO Agreements in order to contest the lawfulness of a Community act 2. Common commercial policy – Protection against dumping – Dumping margin (Council Regulation No 384/96, Arts 1(2), 2(1) and (6)(a)) 3. Common commercial policy – Protection against dumping – Dumping margin (Council Regulation No 384/96, Art. 2(10) and (11), and Council Regulation No 2398/97) 4. Common commercial policy – Protection against dumping – Injury (Council Regulation No 384/96, Art. 3(5)) 5. Preliminary rulings – Assessment of validity – Community regulation establishing a definitive anti-dumping duty declared invalid – Effects (Council Regulation No 2913/92, Art. 236(1)) 1. Given their nature and structure, Agreements of the World Trade Organisation (WTO) are not in principle among the rules in the light of which the Court of Justice will review the legality of measures adopted by the Community institutions. It is only where the Community has intended to implement a particular obligation assumed in the context of the WTO, or where the Community measure refers expressly to the precise provisions of the WTO agreements, that it is for the Court to review the legality of the Community measure in question in the light of the WTO rules. (see paras 29-30) 2. Concerning the establishment of anti-dumping duties, the Council does not commit a manifest error of assessment, when calculating the normal ‘constructed’ value of a product, in taking the view, when determining the amounts corresponding to selling, administrative and other general costs and to profits, that Article 2(6)(a) of the basic anti-dumping Regulation No 384/96: (1) does not exclude from consideration data from a single enterprise which, as one of the undertakings subject to investigation, engaged, on the domestic market of the State of origin, in representative sales of the like product during the investigation period; and (2) allows the sales of other exporters or producers which were not made in the normal course of trade to be excluded from the assessment of the profit margin, in accordance with the principle established in Articles 1(2) and 2(1) of the said regulation, according to which the normal value must in principle be based on data relating to sales made in the ordinary course of trade. (see paras 46-48) 3. Since the dumping margin must be determined by making a fair comparison between the normal value of a similar product and the export price to the Community, the Council makes a manifest error of assessment where, for the purposes of determining the overall dumping margin of a product subject to an anti-dumping investigation, it applies the practice of ‘zeroing’ negative dumping margins, since use of such a method results, when making the comparison between the weighted average value and the weighted average of prices of all export transactions to the Community, in a modification of the price of the export transactions and thus in comparisons not fully reflecting all the comparable export prices. Article 1 of Regulation No 2398/97 imposing a definitive anti-dumping duty on imports of cotton-type bed linen originating in Egypt, India and Pakistan is therefore invalid in so far as the Council applied, for the purpose of determining the overall dumping margin for the product subject to the investigation, and which led to the adoption of the said regulation, the practice of ‘zeroing’ negative dumping margins for each of the product types concerned. (see paras 55-57, operative part 1) 4. Article 3(5) of basic anti-dumping Regulation No 384/96, which sets out the relevant injury factors having a bearing on the state of the Community industry, gives the Community authorities discretion in the examination and evaluation of the various items of evidence for determining the existence of injury. In particular, that provision merely requires an evaluation of the relevant economic factors and indices having a bearing on the state of the Community industry, of which, moreover, it establishes a non-exhaustive list. Therefore, Community institutions do not exceed the margin of assessment which they are acknowledged to have in the evaluation of complex economic situations, in evaluating, for the purpose of the examination of the impact of dumped imports on the state of the Community industry, only the relevant factors having a bearing on the latter. (see paras 61-63) 5. An importer which has brought an action before a national court against a decision by which the collection of anti-dumping duties is claimed from it under a Community regulation establishing a definitive anti-dumping duty on imports which has been declared invalid by the Community judicature following a reference for a preliminary ruling on validity, is, in principle, entitled to rely on that invalidity in the dispute in the main proceedings in order to obtain repayment of those duties in accordance with Article 236(1) of Regulation No 2913/92 establishing the Community Customs Code. In that regard, it is for the national court to verify whether the conditions for such repayment are met. (see paras 67, 69, operative part 2)