Opinion of the Advocate General — ECLI:EU:C:2020:159
Date: 2020-03-04
Language of the case: Dutch
Subject matter: Dumping;External relations;Commercial policy
Procedure: Reference for a preliminary ruling
Origin: Netherlands

Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
11 February 2019 
Referring court:  
Hoge Raad der Nederlanden (Netherlands) 
Date of the decision to refer:  
8 February 2019 
Applicant:  
Donex Shipping and Forwarding B.V. 
Other party: 
Staatssecretaris van Financiën 
  
Subject of the action in the main proceedings 
The subject of the action in the main proceedings is the anti-dumping duties 
payable by Donex Shipping and Forwarding B.V. on certain types of iron or steel 
fasteners from China.  
Subject and legal basis of the request for a preliminary ruling 
The present request under Article 267 TFEU concerns the validity of Regulation 
(EC) No 91/2009 imposing a definitive anti-dumping duty on imports of certain 
iron or steel fasteners originating in the People’s Republic of China.  
Questions referred 
1. Is Regulation (EC) No 91/2009 invalid in respect of an EU importer due to 
the infringement of Article 2(11) of Regulation (EC) No 384/96 in so far as the 
Council, in determining the dumping margin for the relevant products of non-
EN 
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cooperating Chinese exporting producers, excluded the export transactions of 
certain types of the product from the comparison referred to in that article? 
2. Is Regulation (EC) No 91/2009 invalid in respect of an EU importer due to 
the infringement of Article 2(10) of Regulation (EC) No 384/96 in so far as, in the 
context of calculating the magnitude of the dumping margin for the products 
concerned, the institutions of the Union refused to take into account, when 
comparing the normal value of the products of an Indian producer with the export 
prices of similar Chinese products, adjustments relating to import duties on raw 
materials and indirect taxes in the analogue country India and to differences in 
production (costs) and/or in so far as the institutions of the Union, during the 
investigation, did not provide cooperating Chinese exporting producers (in a 
timely manner) with all the data of the Indian producer with regard to the 
determination of the normal value? 
Provisions of European Union law cited 
Council Regulation (EC) No 91/2009 imposing a definitive anti-dumping duty on 
imports of certain iron or steel fasteners originating in the People’s Republic of 
China. 
Council Implementing Regulation (EU) No 924/2012 of 4 October 2012 
amending Council Regulation (EC) No 91/2009 imposing a definitive anti-
dumping duty on imports of certain iron or steel fasteners originating in the 
People's Republic of China.  
Council Regulation (EC) No 384/96 of 22 December 1995 on protection against 
dumped imports from countries not members of the European Community.  
Brief summary of the facts and the procedure in the main proceedings 
1 Donex Shipping and Forwarding B.V. (‘applicant’) filed a declaration in 2011 for 
the release into free circulation of iron or steel fasteners. On 1 February 2009, 
pursuant to Regulation No 91/2009, a definitive anti-dumping duty of 85% was 
imposed on such fasteners from China. On 4 June 2014, the applicant received an 
invitation to pay those duties.  
2 Following a complaint from China to the World Trade Organization (‘WTO’), the 
Council set the anti-dumping duty at a lower rate pursuant to Implementing 
Regulation No 924/2012 and extended it to other companies. Subsequently, those 
anti-dumping measures, which the Council had imposed for five years in 2009, 
were maintained by Implementing Regulation 2015/519. However, following a 
ruling by the WTO Appellate Body, they were repealed by Implementing 
Regulation 2016/278.  
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3 The applicant brought an appeal before the Rechtbank (District Court) Noord-
Holland and then before the Gerechtshof (Court of Appeal) Amsterdam. The 
Gerechtshof rejected the applicant’s assertion that Regulation No 91/2009 should 
be declared invalid in respect of it because it was adopted in breach of the 
provisions of Article 3(2) and Article 4(1) and of Article 2(10) and (11) and 
Article 9(4) of Regulation (EC) No 384/96 (‘the basic regulation’), respectively. 
The Gerechtshof found that the validity of the regulation in question, contrary to 
the applicant’s view, could not be reviewed against the rulings of the WTO 
Appellate Body. On the basis of that finding, the Gerechtshof decided not to 
request a preliminary ruling from the Court of Justice by means of which the 
Court of Justice would be able to rule on the invalidity of Regulation No 91/2009. 
The issue on appeal in cassation is whether the Gerechtshof erred in not asking the 
Court of Justice a question on validity because the Gerechtshof failed to consider, 
on the basis of a direct assessment based on the basic regulation, that there was 
doubt as to the validity of Regulation No 91/2009 in respect of the applicant.  
Main submissions of the parties to the main proceedings  
4 The questions referred for a preliminary ruling by the referring court in the appeal 
in cassation relate solely to the applicant’s first ground of appeal which argued 
that the Gerechtshof had erred in not referring a question to the Court of Justice on 
the validity of Regulation No 91/2009. That ground of appeal consists of three 
parts. 
5 First, according to the applicant, the Commission followed an unacceptable 
method of determining the extent of the injury suffered by the Union industry as a 
result of Chinese imports. The data used in the anti-dumping investigation 
originated from producers who supported the complaint by which an operator had 
requested that investigation. Those producers wanted to cooperate fully in that 
investigation from the outset and wanted to be included in a possible sample. As a 
result, the investigation method followed led to a process of self-selection in 
violation of Articles 3(2) and 4(1) of the basic regulation, resulting in a distorted 
picture of the extent of the injury.  
6 In the second part, the applicant submits that Regulation No 91/2009 must be 
declared invalid because the Commission carried out its investigation into possible 
dumping margins for the products concerned in violation of Article 2(11) of the 
basic regulation. Under that article, the existence of dumping margins must be 
established on the basis of a comparison of a weighted average normal value as 
referred to in Article 2(1) of the basic regulation with a weighted average of prices 
of all [comparable] export transactions to the Community, or by a comparison of 
individual normal values and individual export prices to the Community on a 
transaction-to-transaction basis. According to the second part, the Commission 
wrongly disregarded certain Chinese export transactions when making that 
determination.  
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7 The cause of that failure to include certain transactions lay in the specific Chinese 
market situation. If a company when importing from non-market economy 
countries, such as China, cannot demonstrate that a product is produced and sold 
under market conditions, then, under Article 2(7) of the basic regulation, the price 
must in principle be determined on the basis of the price or constructed value in a 
market economy third country. In the present case, India was that analogue 
country. However, some of the products exported from China were not 
manufactured there, such that no normal value was available for those products. 
The Commission therefore decided not to include those products in the calculation 
of the dumping margins and ‘appropriate adjustments’ were applied to the normal 
value (see recital 98 of Regulation No 91/2009). According to the applicant, that 
resulted in an invalid calculation.  
8 In the third part, the applicant submits that Regulation No 91/2009 must be 
declared invalid because the comparison of the export price and the normal value 
was carried out in breach of Article 2(10) of the basic regulation. Failing to follow 
the correct procedure when making the comparison, the Commission refused to 
apply adjustments for various factors that could affect prices and price 
comparability. Furthermore, in not providing them in a timely manner with the 
necessary information including, in particular, the information regarding the 
Indian producer, the Commission did not give the Chinese producers the 
opportunity to substantiate their request for corrections.  
Brief summary of the reasons for the referral 
9 In agreement with the applicant, the referring court considers that the Court of 
Justice should be asked for a preliminary ruling on the validity of Regulation 
No 91/2009. Admittedly, it is of the view that the first part of the first ground of 
appeal did not justify this, but the second and third parts did.  
First part: determination of the injury caused by dumping to the Community 
industry 
10 With regard to the first part, the referring court refers to the judgment of the Court 
of Justice of 15 November 2018, Baby Dan A/S, C-592/17,EU:C:2018:913 (‘Baby 
Dan judgment’). In that judgment, the Court of Justice clarified that, in so far as 
the definition of the Community industry may be limited to only those 
Community producers which have supported the complaint at the origin of the 
anti-dumping investigation, that fact alone does not appear to be of such as nature 
as to make the method followed, in accordance with Article 4(1) of the basic 
regulation, when adopting Regulation No 91/2009, insufficiently objective and 
therefore invalid (see Baby Dan judgment, paragraphs 80 to 83).  
11 In addition, the limitation of the definition of the Community industry to only 
those Community producers which have supported the complaint at the origin of 
the anti-dumping investigation does not, in itself, and in the absence of any other 
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element capable of calling into question the representativeness of those producers, 
justify the conclusion that the determination in Regulation No 91/2009 of the 
existence of the injury to the Community industry is not based on positive 
evidence and does not involve an objective examination, within the meaning of 
Article 3(2) of the basic regulation (see Baby Dan judgment, paragraph 84).  
The applicant has not produced any other information capable of calling into 
question the representativeness of Community producers as referred to in 
paragraph 84 of the Baby Dan judgment. Therefore, it cannot be considered that 
the Commission’s investigation failed to comply with the requirements and 
safeguards applicable under the basic regulation in order to objectively determine 
the extent of the injury suffered by the Union industry.  
Second part: existence and determination of dumping margins 
12 The referring court proceeds on the assumption that, for the purposes of assessing 
the adoption of Regulation No 91/2009, not only the recitals of that regulation but 
also those of Implementing Regulation 924/2012 are relevant. It is clear from 
recital 7 of the latter regulation that the definitive findings of the original 
investigation were reassessed when that amended regulation was adopted.  
13 Implementing Regulation 924/2012 was annulled by the Court of Justice to the 
extent that it concerned two Chinese exporting producers who had brought an 
appeal before the General Court (ECJ, 5 April 2017, Changshu City Standard 
Parts Factory and Ningbo Jinding Fastner Co. Ltd, Joined Cases C-376/15P and 
C-377/15P, EU:C:2017:269, ‘the Changshu judgment’). It follows from that 
judgment that Article 2(11) of the basic regulation does not allow export 
transactions to the Union relating to certain types of the product under 
consideration to be excluded from the calculation of the dumping margin. Instead, 
either the definition of the product under consideration must be amended so as to 
exclude those product types or the normal value for those missing product types 
should be construed so as to take into account export transactions of that same 
product type for the purposes of calculating the dumping margin (cf. Changshu, 
paragraphs 57, 61, 67, 68, 70, 72 and 75). 
14 The Changshu judgment concerned the products of two Chinese exporting 
producers who both cooperated fully with a view to securing individual treatment 
and who were both included by the Commission in the sample for purposes of 
calculating the dumping margin. By contrast, the present proceedings were 
initiated by an importer in the Union and furthermore, the imported products were 
purchased from Chinese exporting producers who did not cooperate in an 
investigation into the existence of dumping margins.  
15 The referring court raises the question whether the interpretation of Article 2(11) 
of the basic regulation in the Changshu judgment and the invalidity of 
Implementing Regulation 924/2012 to which it gave rise in respect of the two 
Chinese exporting producers concerned, also applies in respect of an importer in 
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the Union who has purchased products from Chinese exporting producers who 
have not cooperated. If so, the question arises whether the infringement of 
Article 2(11) of the basic regulation referred to is so serious that Regulation 
No 91/2009 must be declared invalid in relation to the Union importer concerned, 
in which case there would be no legal basis for the anti-dumping duties imposed 
on that importer.  
16 On the one hand, it could be argued that Regulation No 91/2009 must also be 
declared invalid in respect of the applicant (as an importer) because certain 
product types are excluded and, as a result, the existence of dumping has not been 
established for those product types. That exclusion may also have affected the 
level of the weighted average dumping margin for all the products concerned of 
all other non-cooperating Chinese exporting producers. From that perspective, the 
anti-dumping margin established for those exporting producers cannot justify the 
85% anti-dumping duty imposed and that rate has not been validly determined.  
17 If that line of argument is correct, Regulation No 91/2009 would have to be 
declared invalid in respect of the applicant and the anti-dumping duties would 
have to be considered to have been wrongfully levied (cf. ECJ 15 March 2018, 
Deichmann SE, C-256/16,EU:C:2018:187, paragraph 62). 
18 On the other hand, it could be argued that the exclusion of certain product types is 
not substantial enough to invalidate Regulation No 91/2009 in respect of 
importers such as the applicant. Even if the weighted average dumping margin for 
all the products under consideration was thereby set too high, the fact remains that 
that determination inevitably contained uncertainties because the level of 
cooperation in the investigation was low. 
19 The referring court also asks whether, as an importer, the applicant can only 
successfully plead infringement of Article 2(11) of the basic regulation if it 
specifically imported the excluded product types and is able to plausibly argue 
that anti-dumping duties were imposed precisely for those imports. That might be 
inferred from the Changshu judgment. The point of departure in paragraph 20 was 
that, as a result of the exclusion of certain types of the product under 
consideration, a substantial part of the export sales of the two Chinese exporting 
producers were not taken into account for the calculation of their dumping margin. 
That demonstrated that the infringement was of considerable importance to them. 
If such an interest must be demonstrated, it would mean that Regulation 
No 91/2009 should only be declared invalid in respect of the applicant if and to 
the extent that it can demonstrate that anti-dumping duties were imposed on it for 
excluded product types.  
20 In the light of the foregoing, however, the referring court expresses doubt as to 
whether Article 2(11) of the basic regulation has been infringed in respect of the 
applicant in the sense that Regulation No 91/2009 must be declared invalid and 
that, as a result, the anti-dumping duties were wrongfully imposed. The referring 
court therefore submits the first question to the Court of Justice. 
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Third part: fair comparison of the export price and the normal value 
21 Article 2(10) of the basic regulation concerns the comparability of the normal 
value as established and the export price. Where these are not comparable within 
the meaning of that provision, ‘due allowance, in the form of adjustments, shall be 
made in each case, on its merits, for differences in factors which are claimed, and 
demonstrated, to affect prices and price comparability’.  
22 The referring court refers to recitals 102 to 104 of Regulation No 91/2009, which 
set out how that comparison was made for the products which operators in the 
Union obtained from Chinese exporting producers not considered to be market-
oriented. This shows that, in cases that were found to be reasonable, accurate and 
supported by verified evidence, the Commission made adjustments for costs 
including the quality control procedures applied by the Indian producer, transport, 
insurance, handling and ancillary costs, packing, credit, and bank charges.  
23 However, the Commission rejected requests from Chinese producers to take into 
account adjustments for cost differences related to import duties and indirect taxes 
on raw materials sold in the analogue country India and for differences in 
production costs. Since the Commission took the view during the investigation 
that led to the adoption of Implementing Regulation 924/2012 that it did not have 
to take account of those differences, it is logical to assume that they were also not 
taken into account in the investigation on the basis of which Regulation 
No 91/2009 was adopted.  
24 In Changsu, that application of Article 2(10) of the basic regulation was already 
dealt with in the context of Implementing Regulation 924/2012. The second 
ground of that appeal corresponds in substance to the third part of the present 
cassation proceedings. Point 89 of the Opinion of Advocate General P. Mengozzi 
(EU:C:2016:928) in Changsu shows that, according to the second part of the 
second plea, the General Court had erred in not finding that the Union institutions 
had infringed Article 2(10) of the basic regulation by rejecting the requests of the 
two Chinese exporting producers for adjustments of the export prices on the basis 
of the differences between their production costs and those of the Indian producer, 
and on the basis of the differences in consumption efficiency and productivity.  
25 Furthermore, it follows from that Opinion that, by the third part of the second 
ground of appeal, the two Chinese exporting producers concerned are challenging 
the General Court’s assessment that the institutions of the European Union were in 
breach of their obligation to indicate what information was necessary in order to 
request adjustments. The applicant also put forward that argument (cf. paragraph 8 
above).  
26 In points 101 to 103 of the aforementioned Opinion, Advocate General Mengozzi 
set out the factors which, on the basis of Article 2(10) of the basic regulation and 
in the light of Article 2(7)(a) of that regulation, do not need to be taken into 
account. He concluded that the third part of that ground of appeal regarding the 
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necessity of providing sufficient information for a request for adjustments should 
be upheld and that the other parts should be rejected (see section D, points 88 to 
122 of the Opinion). The Court of Justice did not assess the second ground of 
appeal in the Changshu judgment.  
27 The referring court is of the view that a decision of the Court of Justice is 
necessary in order to address the third part of the first ground of appeal in the 
present cassation proceedings. If, contrary to the Opinion of Advocate General 
Mengozzi, the Court of Justice were to find that the institutions of the Union, in 
their investigation into the existence of dumping, had infringed Article 2(11) of 
the basic regulation and/or if it were to find that the institutions of the Union did 
not provide the cooperating Chinese exporting producers (in a timely manner) 
with all the data of the Indian producer regarding the determination of the normal 
value, the question arises whether that infringement is sufficiently serious to 
declare Regulation No 91/2009 invalid in respect of importers such as the 
applicant. The referring court therefore submits the second question to the Court 
of Justice.