Opinion of the Advocate General — ECLI:EU:C:2016:712
Date: 2016-09-22
Language of the case: English
Subject matter: Dumping;External relations;Commercial policy
Procedure: Action for annulment - unfounded;Appeal - successful
Origin: Bulgaria

Summary — Judgment of the Court (Fourth Chamber), 26 January 2017 1. Appeal — Grounds — Incorrect assessment of the facts and evidence — Inadmissibility — Review by the Court of the assessment of the facts and evidence — Possible only where the clear sense of the evidence has been distorted — Failure to have regard to the rules on evidence — Admissibility (Art. 256(1) TFEU; Statute of the Court of Justice, Art. 58, first para.) 2. Common commercial policy — Protection against dumping — Discretion of the institutions — Judicial review — Limits 3. Common commercial policy — Protection against dumping — Circumvention — Determination of circumvention — Burden of proof –Circumvention established on the basis of a body of evidence — Lawfulness (Council Regulation No 1225/2009, Arts 13 and 18) 1. See the text of the decision. (see paras 50, 51) 2. See the text of the decision. (see para. 54) 3. According to Article 13(3) of Regulation No 1225/2009 on protection against dumped imports from countries not members of the European Community, the burden of proof of circumvention falls to the EU institutions. Moreover, it is apparent from the wording and overall scheme of Article 13 of that regulation that, in order to establish circumvention, those institutions must carry out an overall assessment of the third country that is the subject of the investigation in relation to the circumvention as a whole. On the other hand, they are not required, for the purpose of proving circumvention, to carry out an analysis of the situation of every individual producer-exporter, as that analysis is to be conducted by the individual producer-exporters themselves in the context of the requests made pursuant to Article 13(4) of the regulation. Accordingly, under Article 13(1) of that regulation, it is the task of the EU institutions to establish that anti-dumping measures are being circumvented in respect of the third country in question as a whole, whereas it is for each individual producer-exporter to show that its particular situation justifies an exemption pursuant to Article 13(4) of the regulation. With regard to the standard of proof required to demonstrate circumvention where there is insufficient or indeed no cooperation on the part of producer-exporters, there is no provision in the regulation in question which confers on the Commission, in an investigation to establish whether there has been circumvention, the power to compel producers or exporters which are the subject of a complaint to participate in the investigation or to provide information. The Commission is therefore reliant on the voluntary cooperation of the interested parties to provide it with the necessary information. It is for that reason that the EU legislature provided in Article 18(1) of that regulation that, in cases where an interested party refuses access to, or otherwise does not provide, necessary information, or significantly impedes the investigation, provisional or final findings, affirmative or negative, may be made on the basis of the facts available. Furthermore, Articles 18(6) of the regulation provides that if an interested party does not cooperate, or cooperates only partially, so that relevant information is thereby withheld, the result may be less favourable to the party than it would have been if it had cooperated. In circumstances in which no cooperation whatsoever has been forthcoming from the producer-exporters, the Court has stated that it follows from Article 18 of Regulation No 1225/2009 that it was not the intention of the EU legislature to 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 that regulation. Any other approach would risk undermining the efficiency of EU trade defence measures each time the EU institutions are faced with non-cooperation in an investigation to establish whether there has been circumvention. Where only some of the producer-exporters failed to cooperate, there is nothing in the wording of Article 13(1) of Regulation No 1225/2009 to prevent the EU institutions establishing circumvention of anti-dumping measures on the basis of a body of consistent evidence where producer-exporters accounting for a significant part of the imports of the product concerned into the European Union have not cooperated or have failed to cooperate sufficiently with the investigation. Moreover, the need to guarantee the effectiveness of trade defence measures also justifies, in such circumstances, those institutions being authorised to act on the basis of such a body of consistent evidence showing the existence of circumvention within the meaning of that provision. While the EU institutions are entitled to rely on such a body of evidence, the fact nonetheless remains that, in accordance with Article 13(1) and (3) of that regulation, that evidence must show that the four conditions set out in that provision are met. Thus, as regards the second of those conditions, namely that the change in the pattern of trade between a third country and the European Union, or between individual companies in the country subject to measures and the European Union, must stem from a practice, process or work for which there is insufficient due cause or economic justification other than the imposition of the duty, the EU institutions must have acquired evidence which tends to establish that the change in the pattern of trade stems from such a practice, process or work. (see paras 56, 57, 59-62, 64-67)