Opinion of the Advocate General — ECLI:EU:C:2012:22
Date: 2012-01-19
Language of the case: English
Subject matter: Dumping;External relations;Commercial policy
Procedure: Action for annulment;Appeal - unfounded

summary, that the Council and the Commission did not take account of all the relevant evidence which Xinanchem had put forward in the anti-dumping proceeding to demonstrate that its activity was free from significant State interference. The General Court states that the errors established by it elsewhere also vitiate the Council’s overall conclusion. 116. The Council does not raise any specific pleas against the contested judgment in the context of this third ground of appeal. The third ground of appeal does not have any autonomous substance compared with the first two grounds of appeal which have already been examined. It does not go beyond what has already been discussed. 117. Accordingly, there is no reason to make further statements at this juncture. Rather, the third ground of appeal must be rejected for the same reasons as the first and the second. 4. Summary 118. Since none of the grounds of appeal raised can be accepted, the appeal lodged by the Council must be dismissed in its entirety. There is therefore no need to examine the Council’s submissions regarding the other pleas raised by Xinanchem at first instance in its action for the annulment of the contested regulation, which were not discussed by the General Court. VI – Costs 119. If, as I propose in this case, the appeal is dismissed, the Court will make a decision as to costs (first paragraph of Article 122 of the Rules of Procedure) the details of which are set out in Article 69 in conjunction with Article 118 of the Rules of Procedure. 120. Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Council has been unsuccessful and Xinanchem and AUDACE, as other parties to the proceedings, have each applied for costs, the Council must be ordered to pay their costs. 121. As regards the Commission, it has supported the forms of order sought by the Council as another party to the proceedings and has also been unsuccessful in this regard. The Commission should also therefore be ordered, by analogous application of the first subparagraph of Article 69(4) of the Rules of Procedure, to bear its own costs. VII – Conclusion 122. In the light of the above arguments, I propose that the Court: (1) dismisses the appeal; (2) orders the Council of the European Union to bear its own costs and to pay the costs incurred by Zhejiang Xinan Chemical Industrial Group Co. Ltd and the Association des utilisateurs et distributeurs de l’agrochimie européenne; (3) orders the European Commission to bear its own costs. 1 – Original language: German. 2 – Regulation of 24 September 2004 imposing a definitive anti-dumping duty on imports of glyphosate originating in the People’s Republic of China (OJ 2004 L 303, p. 1). 3 – China Chamber of Commerce Metals, Minerals & Chemicals Importers and Exporters. 4 – Case T‑498/04 Zhejiang Xinan Chemical Industrial Group v Council [2009] ECR II‑1969. 5 – OJ 1996 L 56, p. 1. 6 – Regulation of 5 November 2002 amending Regulation (EC) No 384/96 on the protection against dumped imports from countries not members of the European Community (OJ 2002 L 305, p. 1). 7 – According to a footnote to Article 2(7)(a) of the basic regulation these include Albania, Armenia, Azerbaijan, Belarus, Georgia, North Korea, Kyrgyzstan, the Republic of Moldova, Mongolia, Tajikistan, Turkmenistan and Uzbekistan. 8 – Fourth and fifth recitals in the preamble to Council Regulation (EC) No 905/98 of 27 April 1998 amending Regulation (EC) No 384/96 on protection against dumped imports from countries not members of the European Community (OJ 1998 L 128, p. 18), by which Article 2(7)(b) and (c) was inserted in the basic regulation for the first time. 9 – OJ 2009 L 343, p. 51. 10 – According to Article 24, Regulation No 1225/2009 did not enter into force until 11 January 2010, more than four years after the anti-dumping measures at issue were adopted. 11 – See in particular paragraphs 4 to 10 and 12 to 15 of the contested judgment. 12 – Authorisation within the European Union is based on point 25 of Annex I to Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant protection products on the market (OJ 1991 L 230, p. 1), as amended by Commission Directive 2010/77/EU of 10 November 2010 (OJ 2010 L 293, p. 48). 13 – With effect from 17 December 2010, the contested anti-dumping measures were repealed again; see Council Implementing Regulation (EU) No 1187/2010 of 13 December 2010 terminating the anti-dumping proceeding on imports of glyphosate originating in the People’s Republic of China (OJ 2010 L 332, p. 31). 14 – Recitals 23 and 30 in the preamble to Regulation No 1683/2004 and paragraph 14 of the contested judgment. 15 – Judgment cited in footnote 4. 16 – The original of the appeal, which was sent by fax, was lodged at the Registry of the Court of Justice on 20 August 2009. 17 – AUDACE did not comment on the Council’s second and third grounds of appeal. AUDACE did not take part in the hearing. 18 – Order of the President of the Court of 18 May 2011 in Case C‑337/09 P-R Council v Zhejiang Xinan Chemical Industrial Group and Others. 19 – See also Case C‑136/92 P Commission v Brazzelli Lualdi and Others [1994] ECR I‑1981, paragraphs 47 to 49; Case C‑440/07 P Commission v Schneider Electric [2009] ECR I‑6413, paragraphs 103 and 104; and Case C‑352/09 P ThyssenKruppNirosta v Commission [2011] ECR I‑2359, paragraphs 179 and 180. 20 – Case C‑352/98 P Bergaderm and Goupil v Commission [2000] ECR I‑5291, paragraphs 35 and 36; Case C‑131/03 P Reynolds Tobacco and Others v Commission [2006] ECR I‑7795, paragraph 51; Case C‑234/02 P Bürgerbeauftragter v Lamberts [2004] ECR I‑2803, paragraph 75; Joined Cases C‑514/07 P, C‑528/07 P and C‑532/07 P Sweden and Others v API and Commission [2010] ECR I‑8533, paragraph 116. 21 – Reynolds Tobacco and Others v Commission, paragraph 51; Bürgerbeauftragter v Lamberts, paragraph 75; Sweden v API and Commission, paragraph 116, each cited in footnote 20. 22 – With regard to the margin of appreciation enjoyed by the EU institutions in adopting measures to protect trade, see Case 255/84 Nachi Fujikoshi v Council [1987] ECR 1861, paragraph 21; Case C‑16/90 Nölle [1991] ECR I‑5163, paragraph 11; Case C‑351/04 Ikea Wholesale [2007] ECR I‑7723, paragraph 40; Case C‑398/05 AGST Draht- und Biegetechnik [2008] ECR I‑1057, paragraph 33; and Case C‑373/08 Hoesch Metals and Alloys [2010] ECR I‑951, paragraph 61. 23 – See, for example, Case C‑525/04 P Spain v Lenzing [2007] ECR I‑9947, paragraph 57, last sentence; Case C‑290/07 P Commission v Scott [2010] ECR I‑7763, paragraph 66, first sentence; and Case C‑441/07 P Commission v Alrosa [2010] ECR I‑5949, in particular paragraphs 67 and 68. 24 – See Case C‑49/92 P Commission v Anic Partecipazioni [1999] ECR I‑4125, paragraph 171. 25 – See my Opinion in Case C‑413/06 P Bertelsmann and Sony Corporation of America v Impala [2008] ECR I‑4951, point 74. 26 – Decision of 14 May 2009 suspending the definitive anti-dumping duties imposed by Council Regulation (EC) No 1683/2004 on imports of glyphosate originating in the People’s Republic of China (OJ 2009 L 120, p. 20). 27 – Implementing Regulation of 11 February 2010 extending the suspension of the definitive anti‑dumping duty imposed by Regulation (EC) No 1683/2004 on imports of glyphosate originating in the People’s Republic of China (OJ 2010 L 40, p. 1). 28 – According to its Article 2, Implementing Regulation No 1187/2010 entered into force on the day following its publication in the Official Journal of the European Union, i.e. on 17 December 2010. 29 – It cannot be objected that regulations adopting anti-dumping measures are merely implementing regulations with administrative character. The second paragraph of Article 60 of the Statute of the Court of Justice is applicable to all regulations, according to its clear wording and its spirit and purpose, irrespective of whether they are legislative acts or implementing acts. In any case, such regulations are able and intended to regulate an indefinite number of individual cases — here an indefinite number of import transactions relating to the supposedly dumped product — with the result that the need for legal certainty requires the effects of any annulment by the General Court to occur only once the Court of Justice has reviewed the judgment at first instance or the period for bringing an appeal has expired without being used. No distinction between different types of regulations — such as those with legislative character and those with genuine ‘regulatory character’ (see the fourth paragraph of Article 263 TFEU, on the one hand, and Article 289(3) TFEU, on the other) can be inferred from the second paragraph of Article 60 of the Statute of the Court of Justice. 30 – The situation is different with regard to the specific evaluation of the information of an economic nature on the basis of which the Commission and the Council must assess whether there is significant State interference. The two EU institutions enjoy a wide margin of appreciation in this regard (see, in particular, points 96, 108 and 109 of this Opinion). 31 – Paragraphs 92, 96 to 98 and 107 of the contested judgment. 32 – Paragraphs 91 and 98 of the contested judgment. 33 – Paragraphs 92 and 107 of the contested judgment. 34 – Paragraphs 97, 99, 106 (end) and 107 of the contested judgment. 35 – Paragraphs 82, 97, 105 and 107 of the contested judgment. 36 – See, more generally, recital 13 in the preamble to the contested regulation and paragraphs 12, 79 and 80 of the contested judgment. 37 – Paragraphs 91 and 93 of the contested judgment. 38 – Paragraph 84 of the contested judgment (emphasis added). 39 – Paragraph 85 of the contested judgment. 40 – See also paragraphs 85 and 86 of the contested judgment. 41 – Emphasis added. 42 – Fourth recital in the preamble to Regulation No 905/98, by which the possibility of recognition of market economy status was introduced specifically for firms from Russia and the People’s Republic of China. 43 – According to the fifth recital in the preamble to Regulation No 905/98, it is sufficient that ‘market conditions prevail ... in relation to the manufacture and sale of the product concerned’. 44 – Paragraph 86 of the contested judgment. 45 – Fifth recital in the preamble to Regulation No 905/98. 46 – Paragraph 88 of the contested judgment. 47 – Paragraph 107 of the contested judgment. 48 – Paragraph 89 of the contested judgment. 49 – See above, point 70 of this Opinion. 50 – Fourth and fifth recitals in the preamble to Regulation No 905/98. 51 – Ninth recital in the preamble to Regulation No 384/96. 52 – See recital 13 in the preamble to the contested regulation. 53 – The fact that a certain degree of State interference in the undertaking’s decision-making processes is tolerated in connection with the grant of individual treatment is also shown by letter (e) of the second subparagraph of Article 9(5) of the basic regulation (‘…State interference is notsuch as to …’); emphasis added. 54 – See also the abovementioned letter (e) of the second subparagraph of Article 9(5) of the basic regulation. 55 – Report of the WTO Appellate Body of 15 July 2011 (WT/DS397/AB/R, ‘European Communities — Definitive Anti-Dumping Measures on Certain Iron or Steel Fasteners from China’, available on the WTO website at www.wto.org), in which Article 9(5) of the basic regulation is found to be inconsistent ‘as such’ with various WTO rules. The report was adopted by the WTO Dispute Settlement Body on 28 July 2011. 56 – See Case C‑377/02 Van Parys [2005] ECR I‑1465, in particular paragraphs 39 and 40, and Ikea Wholesale, cited in footnote 22, in particular paragraphs 29 and 30. 57 – End of paragraph 89 and paragraph 90 of the contested judgment. 58 – See above, point 42 of this Opinion. 59 – See the case‑law cited above in footnote 22. 60 – See also the General Court in paragraph 90 of the contested judgment. 61 – Case C‑269/90 Technische Universität München [1991] ECR I‑5469, paragraph 14; Case C‑405/07 P Netherlands v Commission [2008] ECR I‑8301, paragraph 56; and Joined Cases C‑379/08 and C‑380/08 ERG and Others [2010] ECR I‑2007, paragraph 61. 62 – Paragraphs 158 and 159 of the contested judgment (see also the second sentence of paragraph 151 of that judgment). 63 – Recitals 14 and 15 in the preamble to the contested regulation and paragraph 139 of the contested judgment. 64 – Paragraphs 146, 149, 150 and 155 of the contested judgment. 65 – Paragraphs 151 and 153 of the contested judgment. 66 – Paragraph 156 in conjunction with paragraph 141 of the contested judgment. 67 – Paragraph 153 of the contested judgment. 68 – Paragraphs 148 to 150 of the contested judgment. 69 – Paragraph 157 of the contested judgment. 70 – In the proceedings at first instance, the Council had not refuted the main facts adduced by Xinanchem; see in particular paragraphs 149, 151 and 155 of the contested judgment. 71 – Paragraphs 151 and 157 of the contested judgment. 72 – Paragraphs 158 and 159 of the contested judgment. 73 – See the case‑law cited above in footnote 22 and point 96 of this Opinion. 74 – Settled case‑law; see, inter alia, Nachi Fujikoshi v Council, paragraph 21; Ikea Wholesale, paragraph 41, with further references; and Hoesch Metals and Alloys, paragraph 62, cited in footnote 22. It is also clear from these judgments that anti-dumping measures may be reviewed having regard to procedural errors and misuse of powers, neither of which is relevant in the present case. 75 – See Case C‑12/03 P Commission v Tetra Laval [2005] ECR I‑987, paragraph 39, and Case C‑413/06 P Bertelsmann and Sony Corporation of America v Impala [2008] ECR I‑4951, paragraph 145. This case‑law, which was initially developed in connection with merger control, now has importance going far beyond that field of law and may be applied wherever decisions by the EU institutions are to be reviewed having regard to manifest errors of assessment; see Spain v Lenzing, cited in footnote 23, paragraph 57; Netherlands v Commission, cited in footnote 61, paragraph 55; and Commission v Scott, cited in footnote 23, paragraph 65. In his Opinion of 14 April 2011 in Joined Cases C‑191/09 P and C‑200/09 P Council and Others v Interpipe and Others, pending before the court, points 103 to 108, Advocate General Mengozzi applies this case‑law to an anti-dumping proceeding. 76 – Paragraph 158 of the contested judgment.