JUDGMENT OF THE GENERAL COURT (Eighth Chamber)
1 June 2022 (*)
(Dumping – Imports of tubes and pipes of ductile cast iron originating in India – Compliance with the judgment of the General Court in Case T‑301/16 – Reimposition of a definitive anti-dumping duty – Non-repayment in full of the initial definitive anti-dumping duty – Legal basis – Non-retroactivity – Legal certainty – Article 266 TFEU – Proportionality – Right to effective judicial protection – Article 103 of the Union Customs Code – Registration Regulation – Plea of illegality – Admissibility)
In Case T‑440/20,
Jindal Saw Ltd, established in New Delhi (India),
Jindal Saw Italia SpA, established in Trieste (Italy),
represented by R. Antonini, E. Monard and B. Maniatis, lawyers,
applicants,
v
European Commission, represented by K. Blanck and G. Luengo, acting as Agents,
defendant,
THE GENERAL COURT (Eighth Chamber),
composed of J. Svenningsen (Rapporteur), President, C. Mac Eochaidh and T. Pynnä, Judges,
Registrar: M. Zwozdziak-Carbonne, Administrator,
having regard to the written part of the procedure,
further to the hearing on 30 November 2021,
gives the following
Judgment
1        By their action based on Article 263 TFEU, the applicants, Jindal Saw Ltd and Jindal Saw Italia SpA, seek the partial annulment of Commission Implementing Regulation (EU) 2020/527 of 15 April 2020 re-imposing a definitive anti-dumping duty on imports of tubes and pipes of ductile cast iron (also known as spheroidal graphite cast iron) originating in India as regards Jindal Saw Limited following the judgment of the General Court in Case T‑301/16 (OJ 2020 L 118, p. 14) (‘the contested regulation’).
Background to the dispute
2        The applicants are active in the production and sale, inter alia, of tubes and pipes of ductile cast iron intended for the Indian and export market. During the relevant period in this case, three related companies sold the goods produced by Jindal Saw in the European Union, namely, in addition to Jindal Saw Italia, Jindal Saw España SL and Jindal Saw Pipeline Solutions, UK.
3        On 10 November 2014, Saint-Gobain Pam, Saint-Gobain Pam Deutschland GmbH and Saint-Gobain Pam España SA, pursuant to Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the [European Union] (OJ 2009 L 343, p. 51), as amended by Regulation (EU) No 37/2014 of the European Parliament and of the Council of 15 January 2014 amending certain regulations relating to the common commercial policy as regards the procedures for the adoption of certain measures (OJ 2014 L 18, p. 1) (‘the 2009 basic regulation’) (replaced by Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on protection against dumped imports from countries not members of the European Union (OJ 2016 L 176, p. 21, ‘the 2016 basic regulation’)), and, more particularly pursuant to Article 5 of the 2009 basic regulation (now Article 5 of the 2016 basic regulation), lodged a complaint with the European Commission with a view to the latter initiating an anti-dumping investigation relating to imports of tubes and pipes of ductile cast iron originating in India (‘the relevant goods’).
4        By notice of initiation of an anti-dumping proceeding concerning imports of tubes and pipes of ductile cast iron (also known as spheroidal graphite cast iron) originating in India, published in the Official Journal of the European Union on 20 December 2014 (OJ 2014 C 461, p. 35), the Commission initiated an anti-dumping proceeding concerning those imports.
5        Following the initial proceeding, the stages of which are set out in paragraphs 5 to 14 of the judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission (T‑301/16, EU:T:2019:234), the Commission adopted Implementing Regulation (EU) 2016/388 of 17 March 2016 imposing a definitive anti-dumping duty on imports of tubes and pipes of ductile cast iron (also known as spheroidal graphite cast iron) originating in India (OJ 2016 L 73, p. 53, ‘the initial regulation’).
6        By judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission (T‑301/16, EU:T:2019:234), the Court annulled the initial regulation, in so far as it concerned Jindal Saw.
7        In paragraphs 189 and 190 of the judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission (T‑301/16, EU:T:2019:234), the Court held, in essence, that the calculation of the price undercutting as carried out by the Commission under the initial regulation infringed Article 3(2) of the 2009 basic regulation (now Article 3(2) of the 2016 basic regulation) and that, consequently, the applicants’ challenge to the calculation of the price undercutting in respect of the goods produced by Jindal Saw was well founded.
8        In paragraphs 191 to 195 of the judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission (T‑301/16, EU:T:2019:234), the Court also held that, in view of the fact that the undercutting as calculated in the initial regulation was the basis for the conclusion that the imports of the relevant goods were the cause of the injury to the Union industry, which based the imposition of the definitive anti-dumping duty on the imports of those goods, the error found invalidated the whole of the Commission’s analysis relating to the causal link between the dumped imports and the injury to the Union industry.
9        The Court further stated, in the judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission (T‑301/16, EU:T:2019:234), that it cannot be ruled out that, if the price undercutting had been calculated correctly, the injury margin of the Union industry would have been established at a level lower than that of the dumping margin and that, in that case, in accordance with Article 9(4) of the 2009 basic regulation (now Article 9(4) of the 2016 basic regulation), the amount of the definitive anti-dumping duty would have to be reduced to a rate that would be sufficient to eliminate that injury.
10      Following the judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission (T‑301/16, EU:T:2019:234), by the Notice of reopening the investigations following the judgments of 10 April 2019, in Cases T‑300/16 and T‑301/16, with regard to Commission Implementing Regulations (EU) 2016/387 and [2016/388] imposing a definitive countervailing duty and a definitive anti-dumping duty on imports of tubes and pipes of ductile cast iron (also known as spheroidal graphite cast iron) originating in India (OJ 2019 C 209, p. 35, ‘the notice of reopening of the investigations’), the Commission partially reopened the original investigation in order to comply with the judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission (T‑301/16, EU:T:2019:234), in respect of Jindal Saw, and adopted Implementing Regulation (EU) 2019/1250 of 22 July 2019 making certain imports of tubes and pipes of ductile cast iron (also known as spheroidal graphite cast iron) originating in India subject to registration following the re-opening of the investigation in order to comply with the judgments of 10 April 2019, in cases T‑300/16 and T‑301/16, with regard to Implementing Regulations (EU) 2016/387 and 2016/388 imposing a definitive countervailing duty and a definitive anti-dumping duty on imports of tubes and pipes of ductile cast iron (also known as spheroidal graphite cast iron) originating in India (OJ 2019 L 195, p. 13, ‘the 2019 registration regulation’).
11      The enacting terms of the 2019 registration regulation read as follows:
‘Article 1
1. The Customs authorities shall, pursuant to Article 14(5) of [the 2016 basic regulation], take the appropriate steps to register the imports into the Union of [the relevant goods], produced by Jindal Saw …
2. Registration shall expire nine months following the date of entry into force of this Regulation.
3. The rates of … anti-dumping duties … that can be collected on imports of [the relevant goods], produced by Jindal Saw …, between the reopening of the investigations and the date of entry into force of the results of the reopening investigations shall not exceed those imposed by [the initial regulation].
4. The national customs authorities shall await the publication of the relevant Commission Implementing Regulation reimposing the duties before deciding on the claim for repayment and remission of anti-dumping … duties in so far as imports concerning Jindal Saw … are concerned.’
12      At the end of the proceeding reopened in order to comply with the judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission (T‑301/16, EU:T:2019:234), the Commission adopted, on the basis of the 2016 basic regulation, the contested regulation by which, inter alia, it reimposed a definitive anti-dumping duty on imports of the relevant goods manufactured by Jindal Saw and imposed on the national customs authorities the collection of that duty.
13      In recitals 10 and 11 of the contested regulation, the Commission explains that, in its view, the findings set out in the initial regulation, which were not contested, or which were contested but rejected by the Court or not examined by the Court, and therefore did not lead to the annulment of the initial regulation, remain fully valid. It also states that, following the judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission (T‑301/16, EU:T:2019:234), it decided to reopen in part the anti-dumping investigation concerning imports of the relevant goods which led to the adoption of the initial regulation and to resume it at the point at which the irregularity occurred; the scope of that reopening was limited to the implementation of that judgment in respect of Jindal Saw.
14      The enacting terms of the contested regulation read as follows:
‘Article 1
1. A definitive anti-dumping duty is hereby imposed on imports of [the relevant goods] manufactured by Jindal Saw …, as of 19 March 2016.
2. The rate of the definitive anti-dumping duty applicable to the net, free-at Union-frontier price before duty, of the product described in paragraph 1 and manufactured by Jindal Saw …, shall be 3% …
Article 2
Any definitive anti-dumping duty paid by Jindal Saw … pursuant to the [initial] regulation in excess of the definitive anti-dumping duty established in Article 1 shall be repaid or remitted.
The repayment or remission shall be requested from national customs authorities in accordance with the applicable customs legislation. Any reimbursement that took place following the [judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission (T‑301/16, EU:T:2019:234)] shall be recovered by the authorities which made the reimbursement up to the amount set out in Article 1(2).
Article 3
The definitive anti-dumping duty imposed by Article 1 shall also be collected on imports registered in accordance with Article 1 of [the 2019 registration regulation].
…’
Forms of order sought
15      The applicants claim that the Court should:
–        annul the contested regulation;
–        order the Commission to pay the costs.
16      The Commission contends that the Court should:
–        dismiss the action as unfounded;
–        order the applicants to pay the costs.
Law
17      In support of their action, the applicants put forward seven pleas in law.
18      By their first and second pleas, the applicants claim that the contested regulation infringes Article 10(1) of the 2016 basic regulation, the general principle of non-retroactivity and the principle of legal certainty. By their third plea, they submit that that regulation infringes Articles 264 and 266 TFEU. By their fourth plea, they rely on the fact that that regulation infringes the principle of proportionality and Article 5(1) and (4) TEU. By their fifth plea, they claim that the contested regulation infringes the right to an effective judicial remedy and Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’). By their sixth plea, they claim that that regulation infringes Article 103 of Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code (OJ 2013 L 269, p. 1, ‘the Union Customs Code’) and Article 296 TFEU.
19      Finally, by their seventh plea, which consists of two parts, the applicants claim, first, that the registration of imports of the relevant goods manufactured by Jindal Saw imposed by the 2019 registration regulation offers no basis for retroactively reimposing a definitive anti-dumping duty and, secondly, that the Commission infringed Article 14(5) of the 2016 basic regulation by imposing such registration under the 2019 registration regulation.
Preliminary remarks on the subject matter of the action and the scope of the pleas
20      In lodging their application, the applicants expressly stated that the present action was not directed against the contested regulation in so far as it imposed ex nunc, namely as from 17 April 2020, a definitive anti-dumping duty on imports of the relevant goods manufactured by Jindal Saw.
21      The applicants also stated that their action was directed against the contested regulation only in so far as, first, it reimposed a definitive anti-dumping duty on those imports from 19 March 2016 until the entry into force of the 2019 registration regulation, namely on 24 July 2019, and, second, in so far as it imposed the levying of that duty on imports of the relevant goods registered in accordance with the 2019 registration regulation.
22      Apart from that distinction between the imposition and the levying of that duty, which is not reflected in the statement of their pleas, by which they essentially dispute the imposition of that duty, the applicants stated, in reply to a question from the Court at the hearing, that the first six pleas related in essence to the period from 19 March 2016 to 24 July 2019, whereas the seventh plea related instead to the period from 24 July 2019 to 17 April 2020, the date on which the contested regulation entered into force.
23      In that context, the present action and its seven pleas must be understood as being directed against the contested regulation in so far as it imposes a definitive anti-dumping duty on imports of the relevant goods manufactured by Jindal Saw or requires the collection thereof for the period from the entry into force, on 19 March 2016, of the initial regulation to the entry into force, on 17 April 2020, of the contested regulation.
The first and second pleas and the first part of the seventh plea, alleging infringement of Article 10(1) of the 2016 basic regulation and of the principles of non-retroactivity and legal certainty
24      By their first plea in law, the applicants claim that the contested regulation infringes Article 10(1) of the 2016 basic regulation. In their view, in accordance with that provision, no duty may be applied to goods released into free circulation before the entry into force of the measure instituting it, subject to exceptions which must be interpreted strictly and none of which are satisfied in the present case.
25      That first plea is divided into two parts, in which the applicants distinguish the present case from those which gave rise to the judgments of 15 March 2018, Deichmann (C‑256/16, EU:C:2018:187); of 19 June 2019, C & J Clark International (C‑612/16, not published, EU:C:2019:508); of 9 June 2021, Puma and Others v Commission (T‑781/16, not published, under appeal, EU:T:2021:328); and of 9 June 2021, Roland v Commission (T‑132/18, not published, EU:T:2021:329).
26      Under the first part of the first plea, the applicants submit that the contested regulation infringes Article 10(1) of the 2016 basic regulation in so far as the Court annulled in its entirety and as such the definitive anti-dumping duty imposed by the initial regulation, rendering it null and void. The errors found by the Court in the judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission (T‑301/16, EU:T:2019:234), affect the very substance of the conditions required for the imposition of a definitive anti-dumping duty, since those errors invalidated the entire causation analysis.
27      Therefore, the contested regulation is applied to a legal situation which is already established, since the Court concluded that the initial regulation was ‘utterly illegal’. Thus, the finding of dumping in respect of the relevant goods manufactured by Jindal Saw does not follow from the initial regulation that was annulled, but solely and exclusively from the contested regulation.
28      In that regard, the applicants claim that although, in the judgments cited in paragraph 25 above, the Court of Justice and the General Court did indeed accept that the Commission was entitled to reimpose definitive anti-dumping duties as from the date of entry into force of a regulation declared invalid, the approach adopted in those judgments should be strictly confined to those situations, in which there was no doubt that, initially, the duties had been lawfully imposed.
29      In the cases which gave rise to the judgments cited in paragraph 25 above, the EU judicature did not hold that the anti-dumping duty at issue was invalid, but merely found an invalidity with respect to the attribution of the different rates to different exporters. Therefore, the invalidity found was not linked to the incorrect imposition of the anti-dumping duty as such, but was linked only to the level of that duty.
30      Thus, in the cases which gave rise to the judgments cited in paragraph 25 above and unlike the situation in the present case, the Commission did not actually retroactively impose an anti-dumping duty, but, for the purposes of the determination of its amount, merely reinstituted, at a correct level, a duty the validity of which, in itself, had not been called into question.
31      In the second part of the first plea, the applicants claim that the contested regulation infringes Article 10(1) of the 2016 basic regulation in so far as the Court, by means of the annulment ordered, removed from the legal order of the European Union the initial regulation which imposed the anti-dumping duty at issue. That finding entails that no duty was ever imposed on imports of the relevant goods manufactured by Jindal Saw and that the reimposition of the duty by the contested regulation was therefore carried out retroactively, in breach of Article 10(1) of the 2016 basic regulation, without satisfying any of the exceptions provided for in that regulation. For the same reasons, nor was the Commission able to instruct the national customs authorities not to repay or remit the duties paid by Jindal Italia and to recover any repayment made.
32      In that regard, the applicants point out that, in the cases which gave rise to the judgments cited in paragraph 25 above, what was at issue was a finding of invalidity made in the context of the procedure provided for in Article 267 TFEU and not, as in the present case, an annulment ordered in the context of an action under Article 263 TFEU. In those earlier cases, the measure which had been found to be invalid did not disappear from the legal order until it had been repealed by new legislation. That means that the regulations reimposing duties in those cases were adopted during the period of application of the regulations previously declared invalid, which is not the case with the contested regulation.
33      By their second plea, the applicants similarly claim that the contested regulation as such infringes the principles of non-retroactivity and legal certainty.
34      In support of their claim of infringement of the principle of non-retroactivity, the applicants point out that, in particular in the judgments of 9 June 2021, Puma and Others v Commission (T‑781/16, not published, under appeal, EU:T:2021:328, paragraph 99), and of 9 June 2021, Roland v Commission (T‑132/18, not published, EU:T:2021:329, paragraph 106), the Court recalled that the retroactive application of acts imposing trade protection measures was permitted only very exceptionally, on the twofold condition, not fulfilled in the present case, that the principle of the protection of legitimate expectations be upheld and that retroactivity be necessary for the measure of EU law to achieve its objective.
35      As regards observance of the principle of the protection of legitimate expectations, the applicants submit that, according to settled case-law, the consequence of the annulment of a regulation imposing a definitive anti-dumping duty is the refund of duties paid on that basis. The obligation to make such repayment is confirmed by the Commission’s decision-making practice.
36      As regards the need to adopt the contested regulation, the applicants submit that it was necessary neither in order to comply with the judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission (T‑301/16, EU:T:2019:234), nor to meet the objective of protecting the Union industry from the injury caused by the dumped imports, which objective could have been achieved by the imposition of a duty only for the future.
37      In that regard, the applicants refer to the fact that, because of the initial regulation, Jindal Saw’s exports to the European Union fell by almost 90% and that, correlatively, the Union industry’s sales increased. The Union industry thus derived from the initial regulation a profit exceeding by far the amount to which it was entitled. Moreover, the applicants add that, contrary to what the Commission maintains, full repayment of the duties unlawfully levied under the initial regulation cannot be used by them to inflict further injury on the Union industry. That full repayment merely compensates for a fraction of the damage caused by the unlawfulness of that regulation.
38      Finally, by the first part of the seventh plea, the applicants submit, with reference to their first plea, that the mere fact that the Commission required the national customs authorities to register imports does not provide any basis for the retroactive imposition of a definitive anti-dumping duty. Such registration does not in itself create an additional exception to the principle of non-retroactivity referred to in Article 10(1) of the 2016 basic regulation.
39      The Commission contends that the first and second pleas and the first part of the seventh plea must be rejected as unfounded.
40      As a preliminary point, it should be noted that Article 10(1) of the 2009 basic regulation, to which Article 10(1) of the 2016 basic regulation succeeds in the same terms, affirms, in the field of anti-dumping measures, the general principle of non-retroactivity (judgment of 19 June 2019, C & J Clark International, C‑612/16, not published, EU:C:2019:508, paragraph 53; see also judgment of 9 June 2021, Roland v Commission, T‑132/18, not published, EU:T:2021:329, paragraph 94 and the case-law cited) and that, in that context, compliance with that principle must be assessed in the light of that provision (see, to that effect, judgments of 19 June 2019, C & J Clark International, C‑612/16, not published, EU:C:2019:508, paragraph 55, and of 9 June 2021, Roland v Commission, T‑132/18, not published, EU:T:2021:329, paragraph 96 and the case-law cited).
41      Secondly, in response to a question put by the Court at the hearing, the applicants rightly pointed out that the principle of legal certainty, the breach of which they also allege, and the principle of non-retroactivity were closely linked.
42      It is therefore necessary to examine the first plea in law and the first part of the seventh plea in law together with the second plea in law, alleging infringement of Article 10(1) of the 2009 and 2016 basic regulations and of the principles of non-retroactivity and legal certainty, in so far as the contested regulation imposes and requires the collection of a definitive anti-dumping duty on imports of the relevant goods manufactured by Jindal Saw, as from 19 March 2016, the date on which the initial regulation would have entered into force if it had not been annulled by the judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission (T‑301/16, EU:T:2019:234), and not only from 24 July 2019 or 17 April 2020, the respective dates on which the 2019 registration regulation and the contested regulation entered into force.
43      In that regard, it must be borne in mind that, where the Courts of the European Union annul a regulation imposing a definitive anti-dumping duty, and unless the irregularity found has caused the entire proceeding to be vitiated on account of illegality, the Commission may resume the proceeding giving rise to that regulation at the stage at which that irregularity was committed, even if that option is not expressly set out in the applicable legislation (see, to that effect, judgment of 15 March 2018, Deichmann, C‑256/16, EU:C:2018:187, paragraphs 73 and 74 and the case-law cited).
44      Following the resumption of the proceeding, the Commission may adopt a measure to replace the annulled measure and accordingly reimpose a definitive anti-dumping duty by remedying, in that context, the illegalities found to have occurred (see, to that effect, judgments of 19 June 2019, C & J Clark International, C‑612/16, not published, EU:C:2019:508, paragraph 43; of 3 December 2020, Changmao Biochemical Engineering v Distillerie Bonollo and Others, C‑461/18 P, EU:C:2020:979, paragraph 97; and of 9 June 2021, Roland v Commission, T‑132/18, not published, EU:T:2021:329, paragraph 76).
45      Although Article 10(1) of the 2009 and 2016 basic regulations does not therefore preclude the Commission from reimposing a definitive anti-dumping duty, the resumption of the proceeding cannot, however, result in the regulation adopted at the outcome thereof, and which replaces the annulled regulation, reimposing a definitive anti-dumping duty applied to goods released into free circulation before the date on which that annulled regulation entered into force. Accordingly, the reimposed anti-dumping duty can apply only to goods released into free circulation after the entry into force thereof (see, to that effect, judgments of 15 March 2018, Deichmann, C‑256/16, EU:C:2018:187, paragraphs 77 and 78, and of 9 June 2021, Roland v Commission, T‑132/18, not published, EU:T:2021:329, paragraphs 97 and 98).
46      Moreover, where the Commission resumes the proceeding at the stage at which the irregularity occurred, it must, in accordance with the principles governing the temporal application of legislation, comply with the substantive rules in force at the time of the facts referred to in the regulation that was annulled (see, to that effect, judgment of 15 March 2018, Deichmann, C‑256/16, EU:C:2018:187, paragraph 76, and the case-law cited).
47      Therefore, in the present case, the Commission was entitled, without infringing Article 10(1) of the 2016 basic regulation and the case-law referred to in paragraphs 40 to 46 above, not only to reopen the proceeding which led to the adoption of the initial regulation that was annulled, but also to reimpose and require the collection, by way of the contested regulation, of a definitive anti-dumping duty on imports of the relevant goods manufactured by Jindal Saw, as from 19 March 2016.
48      As regards, in the first place, the reopening of the proceeding which led to the adoption of the initial regulation, it should be noted that the irregularity noted in the judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission (T‑301/16, EU:T:2019:234), did not in any way render unlawful the entire proceeding initiated by the Commission on 20 December 2014 as regards imports into the Union of the relevant goods.
49      First, it is apparent from the grounds of the judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission (T‑301/16, EU:T:2019:234), and, in particular, from paragraphs 191 to 195 of that judgment that, first, the Court found that, in the initial regulation, the Commission erred in the calculation of the undercutting of the price of the relevant goods as regards the goods produced by Jindal Saw. Secondly, it considered that it cannot be ruled out that, if that price undercutting had been calculated correctly, the injury margin of the Union industry would have been established at a level lower than that of the dumping margin, which presupposes that the amount of the definitive anti-dumping duty imposed on the relevant goods manufactured by Jindal Saw should be reduced to a rate which would be sufficient to remove the injury to the Union industry.
50      Secondly, it should be recalled that, pursuant to paragraph 1 of the operative part of the judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission (T‑301/16, EU:T:2019:234), the initial regulation was annulled only ‘in so far as it concern[ed] Jindal Saw’.
51      Accordingly, in the light of the dual nature of the regulations imposing anti-dumping duties (see, to that effect, judgments of 15 February 2001, Nachi Europe, C‑239/99, EU:C:2001:101, paragraphs 21 and 37, and of 10 July 2003, Commission v ECB, C‑11/00, EU:C:2003:395, paragraph 75) and of the fact that the other companies covered by the initial regulation did not bring an action, that regulation remained in force even after the delivery of the judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission (T‑301/16, EU:T:2019:234), in particular in so far as a dumping practice was found to have occurred and a definitive anti-dumping duty imposed on the imports of the relevant goods manufactured by those companies.
52      The applicants therefore incorrectly infer from the annulment of the initial regulation in so far as it concerns Jindal Saw that the entire administrative proceeding which led to its adoption has also been annulled (see, by analogy, judgment of 15 October 1998, Industrie des poudres sphériques v Council, T‑2/95, EU:T:1998:242, paragraph 92).
53      Consequently, following the annulment of the initial regulation, it was open to the Commission to reopen the initial proceeding only in respect of Jindal Saw in order potentially to reimpose a definitive anti-dumping duty on imports of the relevant goods manufactured by that company.
54      Thus, the Commission was entitled to take the view, in the notice of reopening of the investigations, to which recital 14 of the 2019 registration regulation refers, that the illegality found by the Court had not occurred at the stage of the opening of the proceeding, but at the stage of the investigation.
55      Similarly, following the judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission (T‑301/16, EU:T:2019:234), the Commission was entitled, without erring in law, to decide to reopen in part the anti-dumping investigation concerning imports of the relevant goods, which had led to the adoption of the initial regulation, and to resume it at the very point at which the illegality occurred, as indicated in recital 11 of the contested regulation.
56      As regards, in the second place, the Commission’s power to reimpose and require the collection of such a duty, it is apparent from Article 1(1) and Article 3 of the contested regulation that it reimposed the duty at issue and ordered its collection only from 19 March 2016. In so doing, it reimposed and ordered the collection of that duty only from the date of entry into force of the initial regulation that was annulled by the judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission (T‑301/16, EU:T:2019:234), and not for a period prior to the initial period of application of that regulation.
57      In addition, it is apparent from paragraphs 191 to 195 of the judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission (T‑301/16, EU:T:2019:234), that, despite the finding of an error on the part of the Commission in the calculation of the price undercutting as regards the relevant goods manufactured by Jindal Saw, the Court did not intend to deny that institution the possibility of reimposing a definitive anti-dumping duty on those goods and, thus, did not bring to a definitive end the proceeding that gave rise to the adoption of the initial regulation. Moreover, it is expressly stated in paragraph 194 of that judgment that the Court considered that the amount of the anti-dumping duty could be reduced to a rate which would be sufficient to remove that injury. In so doing, it not only considered the possibility of resuming the proceeding, but also the validity of all or part of the quantum of the definitive anti-dumping duty imposed by the initial regulation on imports of the relevant goods manufactured by Jindal Saw.
58      Moreover, as regards, more specifically, the applicants’ challenge to the obligation placed on national customs authorities to collect the reimposed definitive anti-dumping duty, the Court of Justice has already had occasion to state that, in the light of the wording of the first sentence of Article 14(1) of the 2016 basic regulation, the EU legislature had not intended to lay down an exhaustive list of the criteria relating to the collection of anti-dumping duties, which could be set by the Commission, and that that institution was empowered to issue directions concerning the collection of anti-dumping duties by the Member States (see, to that effect and by analogy, judgment of 15 March 2018, Deichmann, C‑256/16, EU:C:2018:187, paragraphs 58 to 60).
59      Consequently, by resuming the proceeding that gave rise to the initial regulation, by reimposing a definitive anti-dumping duty on imports of the relevant goods manufactured by Jindal Saw, and by ordering the collection of that duty, the Commission did not retroactively apply a definitive anti-dumping duty to a situation definitively existing before the entry into force of the initial regulation.
60      The applicants therefore incorrectly claim that, by the contested regulation, the Commission infringed Article 10(1) of the 2009 and 2016 basic regulations and the principles of non-retroactivity and legal certainty.
61      That finding is not affected by the other arguments raised by the applicants.
62      First, the applicants may not properly rely on the fact that the errors established by the Court in the judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission (T‑301/16, EU:T:2019:234), occurred at a stage earlier in the Commission’s reasoning than those established in the cases giving rise to the judgments cited in paragraph 25 above, namely at the stage of calculating undercutting of the price of the relevant goods.
63      Despite that difference and as has already been noted in paragraphs 48 and 53 above, the judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission (T‑301/16, EU:T:2019:234), did not entail the annulment of the entire original proceeding, which, moreover, concerned all imports of the relevant goods originating in India and not only those of the relevant goods manufactured by Jindal Saw.
64      Secondly, and for the same reasons, the applicants’ claim that the judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission (T‑301/16, EU:T:2019:234), rendered invalid the Commission’s entire analysis and led to the annulment in full of the definitive anti-dumping duty imposed on them is also unfounded.
65      Thirdly, nor may the applicants’ argument that the present case differs from those which gave rise to the judgments cited in paragraph 25 above, on account of the fact that those judgments concern the reimposition of definitive anti-dumping duties following a finding that an initial regulation is invalid pursuant to proceedings under Article 267 TFEU, whereas, in the present case, the judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission (T‑301/16, EU:T:2019:234), annulled the initial regulation as part of proceedings under Article 263 TFEU, be upheld.
66      First of all, that argument, which is based essentially on the premiss that a preliminary ruling declaring a measure invalid does not lead to its voidance ab initio, conflicts with settled case-law according to which a judgment of the Court of Justice in proceedings for a preliminary ruling declaring a measure of EU law invalid in principle has retroactive effect, like a judgment annulling a measure (judgment of 26 April 1994, Roquette Frères, C‑228/92, EU:C:1994:168, paragraph 17, and order of 11 June 2015, PST CLC, C‑405/14, not published, EU:C:2015:402, paragraph 30).
67      Furthermore, to accept in the present case a distinction such as that suggested by the applicants would undermine the necessary coherence between the reference for a preliminary ruling on validity and the action for annulment, which are the two methods provided for by the FEU Treaty for reviewing the lawfulness of measures (see, to that effect, judgments of 27 February 1985, Société des produits de maïs, 112/83, EU:C:1985:86, paragraph 17, and of 26 April 1994, Roquette Frères, C‑228/92, EU:C:1994:168, paragraph 19).
68      That would further have the consequence, as the Commission rightly points out, of making the scope of its power to reimpose a definitive anti-dumping duty dependent on the status of the person bringing the action which led to the annulment of an initial regulation and of the legal remedy which he or she had to use for that purpose.
69      Accordingly, exporting producers whose goods are covered by a regulation imposing a definitive anti-dumping duty, who must in principle bring an action before the Courts of the European Union on the basis of Article 263 TFEU, would not be subject to a definitive anti-dumping duty being reimposed on them, since any error on the part of the Commission would previously have led to the annulment of that regulation. In contrast, importers of the same goods, who are not, in principle, entitled to bring proceedings directly before the Courts of the European Union and must therefore obtain a reference for a preliminary ruling on validity from a national court under Article 267 TFEU, may be subject to the reimposition of such duties as any error by the Commission would have led to a preliminary finding that a regulation imposing a definitive anti-dumping duty was invalid.
70      Finally, the lack of foundation for the applicants’ argument is confirmed by the case-law of the Court of Justice, according to which the Commission’s powers to reimpose definitive anti-dumping duties are envisaged without distinction, irrespective of whether the Courts of the European Union have annulled a regulation imposing definitive anti-dumping duties or declared it invalid (see, to that effect, judgments of 15 March 2018, Deichmann, C‑256/16, EU:C:2018:187, paragraphs 73 and 74, and of 19 June 2019, C & J Clark International, C‑612/16, not published, EU:C:2019:508, paragraph 43).
71      In the light of the foregoing, the first and second pleas and the first part of the seventh plea must be rejected as unfounded.
Third plea in law, alleging infringement of Articles 264 and 266 TFEU
72      By their third plea, the applicants claim that, by adopting the contested regulation which reimposes a definitive anti-dumping duty as from 19 March 2016 and not only ex nunc, the Commission rendered the judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission (T‑301/16, EU:T:2019:234) ineffective, and thus infringed Articles 264 and 266 TFEU.
73      As regards the infringement of Article 266 TFEU, the applicants submit that the Commission was not entitled to reimpose on them a definitive anti-dumping duty with effect from the date of entry into force of the initial regulation, since that regulation was annulled and was, therefore, void ab initio.
74      However, by reimposing that duty retroactively, the Commission is not restoring the applicants to their original situation, as required by the case-law. On the contrary, it is definitively prohibiting the repayment of the unduly paid duty, even though that repayment is the consequence of the annulment of the initial regulation by the judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission (T‑301/16, EU:T:2019:234). Moreover, by the contested regulation, it is adopting a solution incompatible with the operative part of that judgment, which annulled the initial regulation in its entirety.
75      As regards infringement of Article 264 TFEU, the applicants submit that that provision empowers the Court to limit in time the effects of the annulment of a measure and that the exercise of that jurisdiction is exclusively a matter for the Court. In so far as the Court did not make use of that option in the judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission (T‑301/16, EU:T:2019:234), the Commission was required to give effect to the absence of such a limitation and could not retroactively reimpose a definitive anti-dumping duty on the applicants, without encroaching on the exclusive jurisdiction of the Court.
76      The Commission contends that the third plea in law must be rejected as unfounded.
77      As regards, in the first place, the alleged infringement of Article 266 TFEU, it should be recalled that that provision provides, in particular in its first paragraph, that the EU institution, body, office or agency whose act has been declared void by the Court of Justice or by the General Court is to take the necessary measures to comply with the judgment of the Court.
78      As is apparent from the grounds of the judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission (T‑301/16, EU:T:2019:234), set out in paragraph 49 above, it is only because of an error in the calculation of the undercutting of the price of the relevant goods so far as concerns Jindal Saw that the Court annulled the initial regulation.
79      It follows that, contrary to what is claimed by the applicants, the Court did not hold that the imposition by the Commission, by way of the initial regulation, of the definitive anti-dumping duty on them was in any event unfounded ab initio. Only such a finding could have deprived the Commission of the power to reimpose a definitive anti-dumping duty, in accordance with the force of res judicata attaching to the operative part of judgments annulling a measure and the reasons which constitute the necessary support therefor and are accordingly inseparable therefrom (see, to that effect, judgment of 15 November 2012, Al-Aqsa v Council and Netherlands v Al-Aqsa, C‑539/10 P and C‑550/10 P, EU:C:2012:711, paragraph 49 and the case-law cited).
80      On the contrary, it is apparent from the grounds, which constitute the necessary support for the operative part of the judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission (T‑301/16, EU:T:2019:234), that the Court merely held that, on account of the errors found, the amount of the definitive anti-dumping duty imposed by the initial regulation on imports of the relevant goods manufactured by Jindal Saw could be reduced to a rate which would be sufficient to remove the injury to the Union industry. In so doing, notwithstanding the fact that the Court annulled the initial regulation in so far as it concerned Jindal Saw, it implicitly, but necessarily, acknowledged that the relevant goods manufactured by that company could give rise to the reimposition of a definitive anti-dumping duty, possibly of an amount lower than that imposed on the basis of the initial regulation.
81      Therefore, and in view of the option available to the Commission in the present case to reimpose a definitive anti-dumping duty on imports of the relevant goods manufactured by Jindal Saw following the annulment of the initial regulation (as is apparent from the rejection of the first and second pleas in law and of the first part of the seventh plea), the applicants are not justified in claiming that, under Article 266 TFEU, it was not open to the Commission to reimpose such a duty as from the date of entry into force of the initial regulation, namely 19 March 2016. Similarly, they cannot validly claim that the Commission had no choice but to enable them to obtain full repayment of the amounts collected by the national customs authorities on the basis of the initial regulation from that date.
82      Such a finding is all the more valid in the present case since, first, the definitive anti-dumping duty reimposed by the contested regulation was not maintained at the same level, but was substantially reduced by comparison with that imposed by the initial regulation, in order to take account of the errors found by the Court and their implications. Second, it must be held that, by Article 2 of the contested regulation, the Commission imposed on the national customs authorities the obligation to provide a refund or a remission in respect of the initial definitive anti-dumping duty which exceeded that reimposed by the contested regulation.
83      The applicants’ claim that, by reimposing a definitive anti-dumping duty on the relevant goods manufactured by Jindal Saw, the Commission definitively prohibited repayment of the unduly paid duty on those goods pursuant to the initial regulation that was annulled is also unfounded.
84      Apart from the fact that the prohibition referred to by the applicants does not expressly follow from the contested regulation (see, by analogy, judgment of 9 June 2021, Roland v Commission, T‑132/18, not published, EU:T:2021:329, paragraph 89), the Commission, on the contrary, required, in Article 2 of the contested regulation, the national customs authorities to provide a refund or a remission of the surplus amounts paid under the initial regulation that was annulled.
85      Moreover, the fact that, by the contested regulation, the import of the relevant goods manufactured by Jindal Saw is once again subject to a definitive anti-dumping duty does not entail that the Commission has rendered the annulment of the initial regulation ineffective and, accordingly, infringed Article 266 TFEU. It merely entails that, by the contested regulation, the Commission took the view, after reopening the initial proceeding at the investigation stage and after having carried out a new calculation of the price undercutting in respect of the relevant goods manufactured by Jindal Saw, that such a duty should be reimposed as from the date of entry into force of the initial regulation. Such a finding is, moreover, confirmed by the fact, noted in paragraph 82 above, that the definitive anti-dumping duty reimposed by the contested regulation is substantially lower than that imposed by the initial regulation and is based on a different statement of reasons drawing the appropriate conclusions from the errors contained in the initial regulation and noted by the Court in the judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission (T‑301/16, EU:T:2019:234).
86      As regards, in the second place, the claim of infringement of Article 264 TFEU, it should be recalled that the second paragraph of that provision does indeed allow the Courts of the European Union to limit the retroactive effect of judgments annulling a measure by authorising them, if they consider it necessary, to indicate which of the effects of the measure annulled are deemed not to be open to challenge with respect to the past.
87      However, the fact that the Court did not consider it necessary to limit the retroactive effect of a judgment annulling an act of the European Union does not mean that it considered that the Commission should not be able to adopt, in place of the measure annulled, a new act which takes effect as from the date of entry into force of the annulled act (see, to that effect, judgment of 5 September 2014, Éditions Odile Jacob v Commission, T‑471/11, EU:T:2014:739, paragraph 111), particularly where that decision was annulled only in respect of some of the companies concerned.
88      First, the temporal adjustment of the effects of an annulment is merely an option for the court, not an obligation (judgment of 5 September 2014, Éditions Odile Jacob v Commission, T‑471/11, EU:T:2014:739, paragraph 111). Secondly, as has been noted in paragraph 82 above, the contested regulation – although it reimposes a definitive anti-dumping duty on imports of the relevant goods manufactured by Jindal Saw as from the date of entry into force of the initial regulation – substantially reduces the rate of that duty and cannot therefore be regarded as maintaining the effects of the initial regulation despite its annulment by the Court.
89      Accordingly, the applicants cannot usefully rely on Article 264 TFEU.
90      Having regard to the foregoing, the third plea must be dismissed.
Fourth plea in law, alleging infringement of the principle of proportionality and of Article 5(1) and (4) TEU
91      By their fourth plea, the applicants claim that, in seeking to comply with the judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission (T‑301/16, EU:T:2019:234), by retroactively reimposing a definitive anti-dumping duty on imports of the relevant goods manufactured by Jindal Saw, the Commission adopted a solution which, even if it were lawful, is manifestly inappropriate and goes beyond what is necessary to achieve its objective, namely the protection of the Union industry. The Commission thus adopted a solution which was too restrictive for the applicants and lacked any benefits for the Union industry, which had already benefited for four years from the protection of its market by the imposition of an unlawful duty, which considerably limited the export of the relevant goods to the European Union. According to the applicants, it was open to the Commission not to reopen the initial proceeding and thus to comply with its established practice in previous decisions.
92      The Commission submits that the fourth plea in law should be rejected as unfounded.
93      In that regard, it should be borne in mind that the principle of proportionality set out in Article 5(4) TEU, which is one of the general principles of EU law, requires that acts adopted by EU institutions do not exceed the limits of what is appropriate and necessary in order to attain the legitimate objectives pursued by the legislation in question; where there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (see judgments of 13 March 2019, Poland v Parliament and Council, C‑128/17, EU:C:2019:194, paragraph 94 and the case-law cited; and of 9 June 2021, Roland v Commission, T‑132/18, not published, EU:T:2021:329, paragraph 117 and the case-law cited).
94      Moreover, in the context of compliance with a judgment annulling an act governed by Article 266 TFEU, the institution whose act has been declared void has a broad discretion to decide the measures to be adopted in order to give effect to a judgment annulling the act, provided that those measures are compatible with the operative part of the judgment in question and the grounds constituting its essential basis (see, to that effect, judgment of 11 December 2017, Léon Van Parys v Commission, T‑125/16, EU:T:2017:884, paragraph 49).
95      Accordingly, only the manifestly inappropriate nature of those measures, having regard to the objective pursued, may affect their lawfulness (see, by analogy, judgment of 15 March 2018, Deichmann, C‑256/16, EU:C:2018:187, paragraph 88 and the case-law cited).
96      In the present case, it should be recalled at the outset that the complaint alleging infringement of Article 266 TFEU was rejected as unfounded in paragraph 81 above.
97      Moreover, as is apparent from the notice of reopening of the investigations and from recitals 10 and 11 of the contested regulation, the objective of that regulation is to implement the findings of the judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission (T‑301/16, EU:T:2019:234), by resuming the proceeding that led to the adoption of the initial regulation at the specific point at which the illegality established by the Court occurred, in order to remedy completely the errors found by the Court and to assess whether the correct application of the rules could warrant the reimposition of the measures at the initial level or at a revised level from the date on which the initial regulation entered into force.
98      First, as stated in paragraphs 43 to 46 and 59 above, the Commission is entitled to give effect to a judgment annulling a regulation imposing a definitive anti-dumping duty by reimposing, by way of a replacement act such as the contested regulation, a definitive anti-dumping duty at the appropriate rate of duty.
99      Second, it should be noted that the contested regulation reimposes a definitive anti-dumping duty, while significantly reducing the rate applicable to imports of the relevant goods manufactured by Jindal Saw from 14.1 to 3% – reduced rate which the applicants do not dispute – and ordering the refund or remission of the surplus amounts collected pursuant to the initial regulation.
100    Accordingly, the contested regulation does not manifestly go beyond what was necessary to comply with the judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission (T‑301/16, EU:T:2019:234) (see, to that effect, judgment of 9 June 2021, Roland v Commission, T‑132/18, not published, EU:T:2021:329, paragraph 122), and accordingly does not infringe the principle of proportionality, as affirmed in Article 5(4) TEU.
101    That conclusion cannot be called into question by the other arguments raised by the applicants.
102    As regards the argument that the full refund of the definitive anti-dumping duty imposed by the initial regulation is a less restrictive measure, it is sufficient to note that, even if such a choice had certainly been less onerous for the applicants, that would not mean that the solution adopted by the Commission is disproportionate, having regard to the objectives which it pursued in the proceeding which led to the contested regulation.
103    Such full repayment would not have been as suitable for achieving the objective of complying with the judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission (T‑301/16, EU:T:2019:234), as the approach adopted by the Commission in the contested regulation. It is only the difference between the rate set by the initial regulation and the rate set by the contested regulation, which, moreover, is not disputed by the applicants, that should, if appropriate, be refunded to the parties concerned. A full refund of the definitive anti-dumping duty imposed by the initial regulation, as claimed by the applicants, was therefore not required and would even have gone against the findings of the judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission (T‑301/16, EU:T:2019:234), and more specifically paragraph 194 thereof, by not making it possible to remove the injury caused to the Union industry (see, by analogy, judgment of 9 June 2021, Roland v Commission, T‑132/18, not published, EU:T:2021:329, paragraphs 127 and 128).
104    Moreover, the applicants’ claim that the reimposition of the definitive anti-dumping duty at issue lacks any benefits for Union industry is not such as to establish to the requisite legal standard that the reimposition of a definitive anti-dumping duty that is substantially reduced by the contested regulation would be disproportionate in the present case.
105    That conclusion is, moreover, confirmed by the Commission’s statement, which is not contradicted by the applicants, that a full refund of the duty imposed by the initial regulation would enable the applicants to absorb the duty set by the contested regulation, which would run counter to the objective of that regulation and the interest of the Union industry to remain protected to the extent of the level of dumping found in the present case.
106    As regards, finally, the argument that, by the contested regulation, the Commission went against its previous consistent decision-making practice, suffice it to recall that the lawfulness of the contested regulation must be assessed in the light of the applicable rules and, in particular, the provisions of the 2009 and 2016 basic regulations, and not on the basis of an alleged previous decision-making practice (see, to that effect, judgment of 9 June 2021, Roland v Commission, T‑132/18, not published, EU:T:2021:329, paragraph 110 and the case-law cited).
107    In the light of the foregoing, the fourth plea in law must be rejected as unfounded.
The fifth plea in law, alleging infringement of the right to an effective judicial remedy and of Article 47 of the Charter
108    By their fifth plea in law, the applicants claim that the contested regulation infringes their right to an effective judicial remedy and Article 47 of the Charter for two reasons.
109    First, the applicants claim that Jindal Saw Italia experienced a massive decline in its import and sales volumes because of the duty unlawfully collected pursuant to the initial regulation. That decline means that the effective remedy most apt to restore the status quo ante is a refund or remission in full of the duties unlawfully collected under the initial regulation.
110    In that regard, the applicants state that, because of the unlawful acts of the Commission, they unfairly lost significant sums, which were far greater than those which they would receive following full repayment of the duty unlawfully levied on their imports.
111    Secondly, the applicants submit that the approach adopted by the Commission in relation to the reimposition of definitive anti-dumping duties following the judgment of 15 March 2018, Deichmann (C‑256/16, EU:C:2018:187), has systemic effects which erode the effective judicial protection of the parties concerned and the authority of the Court of Justice. Moreover, it leads to a lack of accountability on the part of the Commission and to calling into question the retroactive effect of the findings of annulment.
112    If, following the annulment of a regulation imposing a definitive anti-dumping duty, the Commission were to be recognised as having the right to reopen the proceeding and reimpose retroactively the very same duty, the companies concerned by that proceeding would have no interest in bringing an action in order to enforce their substantive or procedural rights.
113    The Commission submits that the fifth plea in law must be rejected as unfounded.
114    As regards the applicants’ first argument, it should be noted that the principle of effective judicial protection is a general principle of law, which is now enshrined in Article 47 of the Charter. That provision guarantees, in EU law, the protection afforded by Article 6(1) and Article 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950. The first paragraph of Article 47 of the Charter requires everyone whose rights and freedoms guaranteed by EU law have been infringed to have the right to an effective remedy before a court or tribunal in compliance with the conditions laid down in that article (judgment of 29 November 2018, Bank Tejarat v Council, C‑248/17 P, EU:C:2018:967, paragraph 79).
115    Although the principle of effective judicial protection is intended to ensure that an act adversely affecting a person can be challenged before a court, it is settled case-law that that principle cannot prevent an EU institution, an act of which has previously been annulled, from adopting a new act adversely affecting that person, based on different grounds (see, to that effect, judgment of 29 November 2018, Bank Tejarat v Council, C‑248/17 P, EU:C:2018:967, paragraphs 80 and 81 and the case-law cited).
116    In the present case, it must be held that the contested regulation is based on grounds different from those on which the initial regulation was annulled. Accordingly, the applicants are not entitled to rely on a breach of the principle of effective judicial protection on the ground that, by the contested regulation, the Commission reimposed a definitive anti-dumping duty on them following the annulment by the Court of the initial regulation.
117    It should also be noted that the applicants were able successfully to challenge the initial regulation, as demonstrated by the judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission (T‑301/16, EU:T:2019:234). They were also able, by the present action, to challenge the regulation by which the Commission reimposed a substantially reduced definitive anti-dumping duty on them, confirming the effectiveness of their actions before the Courts of the European Union.
118    Furthermore, the Court of Justice, like the European Court of Human Rights, has already had occasion to hold that the effectiveness of the right to bring an action does not depend on the certainty of an outcome favourable to the applicant (see, to that effect, order of 8 February 2018, CBA Spielapparate- und Restaurantbetrieb v Commission, C‑508/17 P, not published, EU:C:2018:72, paragraph 24 and the case-law cited, and ECtHR, 26 October 2000, Kudłav. Poland, CE:ECHR:2000:1026JUD003021096, § 157).
119    Thus, the fact that the applicants consider that the consequences to be drawn by the Commission from the errors found by the Court in the judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission (T‑301/16, EU:T:2019:234) should have been different from those found in the contested regulation is, as such, irrelevant for the purpose of assessing a possible infringement of the principle of effective judicial protection and of Article 47 of the Charter. Such a criticism concerns the lawfulness of that regulation, which the applicants have had the opportunity to challenge, as is shown by the present action.
120    Therefore, the contested regulation does not infringe either the principle of effective judicial protection or Article 47 of the Charter.
121    Lastly, although, by the first argument of the fifth plea in law, the applicants rely on damage resulting from the massive decline in the import and sales volumes of Jindal Saw Italia because of the duties unlawfully collected pursuant to the initial regulation, it should be noted that their action is based solely on Article 263 TFEU and not on Article 268 TFEU, possibly taken together with the second paragraph of Article 340 TFEU (see, by analogy, order of 22 January 2018, Ostvesta v Commission, T‑175/17, not published, EU:T:2018:49, paragraphs 39 and 47).
122    It is settled case-law that actions for annulment based on Article 263 TFEU and actions for damages based on the second paragraph of Article 340 TFEU constitute independent forms of action; each has a specific purpose within the system of remedies and is subject to conditions for the exercise of that form of action designed with a view to its specific purpose, the first seeking the setting aside of a particular measure and the second seeking compensation for damage caused by an institution, body, office or agency of the Union (see, to that effect, judgments of 2 December 1971, Zuckerfabrik Schöppenstedt v Council, 5/71, EU:C:1971:116, paragraph 3; of 12 September 2006, Reynolds Tobacco and Others v Commission, C‑131/03 P, EU:C:2006:541, paragraph 83; and of 9 September 2009, Brink’s Security Luxembourg v Commission, T‑437/05, EU:T:2009:318, paragraph 231 and the case-law cited).
123    As regards the applicants’ second argument, by which they claim in particular that the contested regulation endorses a new practice on the part of the Commission which erodes the effective judicial protection of the companies concerned by the anti-dumping proceedings, it is sufficient to note that the purpose of the action for annulment provided for in Article 263 TFEU is to review the lawfulness of the contested measure before the Courts of the European Union and not to challenge the possible implications of the dismissal of the action brought against that measure as regards the subsequent administrative or decision-making practice of the institution which adopted the act, particularly with regard to third parties.
124    Lastly, it should be noted that the applicants’ claims regarding the infringement of Articles 264 and 266 TFEU and of the principle of effective judicial protection by the contested regulation have already been rejected in the context of the assessment of the third plea and in paragraphs 114 to 123 above.
125    In the light of the foregoing, the fifth plea in law must be rejected as unfounded.
Sixth plea in law, alleging infringement of Article 103 of the Union Customs Code and Article 296 TFEU
126    By their sixth plea in law, the applicants claim that, by the contested regulation, the Commission imposed a definitive anti-dumping duty for a period in respect of which such a duty was time-barred, thus infringing not only Article 103(1) of the Union Customs Code, read in conjunction with Article 77(2) and Article 104(2) of that code, but also Article 296 TFEU, in that that regulation does not state the reasons why it disregarded the limitation period laid down in Article 103(1) of the Union Customs Code.
127    In view of the annulment of the initial regulation, which retroactively deprived of legal basis the collection by the national customs authorities of the definitive anti-dumping duty established by that regulation, the contested regulation imposed, on 17 April 2020, a definitive anti-dumping duty on imports which had been cleared through customs and thus released for free circulation from 19 March 2016.
128    It follows that, at least for the period from 19 March 2016 to 17 April 2017, the Commission imposed, in an inconsistent manner, duties which the national customs authorities were not entitled to levy having regard to the three-year limitation period laid down in Article 103(1) of the Union Customs Code. That limitation period begins to run from the date on which the customs debt was incurred, that is to say, from the date on which the imports were cleared through customs.
129    Furthermore, the applicants claim that the contested regulation, like the conduct of the national customs authorities, could result in those authorities not reimbursing in full the duty collected on the basis of the initial regulation, but only the difference between the amount of duty provided for in the initial regulation and that provided for in the contested regulation.
130    The Commission takes the view that the sixth plea should be dismissed as unfounded.
131    In that regard, it should be noted that it is expressly stated in recital 71 of the contested regulation and in Article 2 of that regulation that the collection of appropriate amounts on imports concerning Jindal Saw and the repayment or remission of the surplus amounts collected pursuant to the initial regulation are to be made ‘in accordance with the applicable customs legislation’.
132    Those operations must therefore be carried out in accordance, inter alia, with Article 101(1), the first subparagraph of Article 102(1), Article 103(1) and Article 104(2) of the Union Customs Code.
133    Under those provisions, the amount of duty payable is to be determined by the competent customs authorities, which are responsible for notifying customs debts, unless a period of three years from the date on which that debt was incurred has expired.
134    It follows that the rule set out in Article 103(1) of the Union Customs Code does indeed have the effect not only of preventing the amount of customs duties from being notified to the debtor after the expiry of a period of three years from the date on which his or her customs debt was incurred, but also of causing that customs debt itself to become subject to a time bar upon the expiry of that period. However, that rule applies only to notification of the amount of customs duties to the debtor and its implementation is therefore a matter for the national customs authorities alone, who are competent to make such a notification. Consequently, it does not preclude the Commission from adopting a regulation imposing or reimposing a definitive anti-dumping duty (see, by analogy, judgment of 15 March 2018, Deichmann, C‑256/16, EU:C:2018:187, paragraphs 80, 81 and 83 and the case-law cited).
135    The applicants’ claim that the contested regulation, in so far as it reimposes a definitive anti-dumping duty on imports of the relevant goods manufactured by Jindal Saw as from 19 March 2016, infringes Article 103(1) of the Union Customs Code, is therefore incorrect. That regulation does not preclude the application of that provision by the customs authorities of the Member States.
136    In so far as the applicants also complain that the contested regulation infringed Article 296 TFEU in that it did not justify the failure to set aside the limitation period laid down in Article 103(1) of the Union Customs Code, suffice it to note that the Commission cannot be criticised for not having set out, in the contested regulation, the reasons why it had not applied a provision that was not enforceable against it.
137    In view of the foregoing, the sixth plea in law must be rejected as unfounded.
The second part of the seventh plea, alleging the Commission’s lack of competence to adopt the 2019 registration regulation and the parallel infringement of Article 14(5) of the 2016 basic regulation
138    The applicants state that the second part of the seventh plea, alleging the Commission’s lack of competence to adopt the 2019 registration regulation, is put forward on the basis of Article 277 TFEU. In that regard, they state that their plea of illegality is admissible in so far as they were not entitled to bring an action for annulment against that registration regulation, which follows, by analogy, from the case-law according to which actions against regulations imposing provisional anti-dumping duties are inadmissible.
139    In support of that part of the plea, the applicants claim that registration of imports of goods potentially concerned by anti-dumping duties, in accordance with Article 14(5) of the 2016 basic regulation, presupposes the existence of very specific circumstances referred to in Article 10(2), (4) and (5), Article 11(4), Article 12(5) and Article 13(3) of that regulation. There are no such circumstances in the present case, making both the registration imposed by the 2019 registration regulation and the duty levied on imports subject to that registration unlawful.
140    The 2016 basic regulation does not provide for the possibility of retroactively reimposing a definitive anti-dumping duty on imports. Similarly, it does not expressly provide that the reopening of an investigation allows imports to be registered. As an exception to a general rule prohibiting the retroactive imposition of duties on imports subject to registration, the right to effect such registration must be interpreted restrictively.
141    The Commission contends that the plea of illegality raised by the applicants must be rejected as inadmissible and, in the alternative, as unfounded.
142    As regards the admissibility of the plea of illegality raised by the applicants, it should be recalled that, under Article 277 TFEU, notwithstanding the expiry of the period laid down in the sixth paragraph of Article 263 TFEU, any party may, in proceedings in which an act of general application adopted by an institution, body, office or agency of the European Union is at issue, plead the grounds set out in the second paragraph of Article 263 TFEU in order to invoke before the Court the inapplicability of that act.
143    Furthermore, the Court of Justice takes the view that the general principle, to which Article 277 TFEU gives expression and which is intended to ensure that every person has or will have had the opportunity to challenge a measure of EU law which forms the basis of a decision adversely affecting him or her, does not in any way preclude a regulation from becoming definitive as against an individual in regard to whom it must be considered to be an individual decision and who could undoubtedly have sought its annulment under Article 263 TFEU (judgment of 10 July 2003, Commission v ECB, C‑11/00, EU:C:2003:395, paragraph 75).
144    In order to assess the admissibility of the plea of illegality raised by the applicants, it is therefore necessary to determine whether the 2019 registration regulation must be regarded as a measure of general application of which the applicants could undoubtedly have sought annulment under Article 263 TFEU.
145    In the present case, as regards the classification of the 2019 registration regulation, it follows from Article 288 TFEU that that regulation, like all regulations, constitutes an act of general application.
146    Moreover, it is settled case-law that regulations imposing definitive anti-dumping duties are dual in nature, in that they are both acts of a legislative nature and acts liable to be of direct and individual concern to certain traders (see judgment of 10 July 2003, Commission v ECB, C‑11/00, EU:C:2003:395, paragraph 75 and the case-law cited).
147    As regards, next, the question whether the applicants would undoubtedly have had the right to bring an action for annulment of the 2019 registration regulation, it should be noted that, admittedly, certain factors tend towards the admissibility of such an action.
148    Thus, as the Commission acknowledged in reply to a question from the Court at the hearing, the 2019 registration regulation identifies the goods it covers, namely those manufactured by Jindal Saw, and produces, from the time of its adoption, certain legal effects vis-à-vis that company by delaying the processing by the national customs authorities of applications for repayment and remission of the definitive anti-dumping duty imposed by the initial regulation, following the judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission (T‑301/16, EU:T:2019:234).
149    However, both the applicants and the Commission submit that an action for annulment of the 2019 registration regulation has been dismissed as inadmissible. In that regard, the Commission submits, in essence, that the 2019 registration regulation is a preparatory document against which no appeal lies.
150    In addition, it is apparent from paragraph 70 of the order of 28 September 2021, Airoldi Metalli v Commission (T‑611/20, not published, EU:T:2021:641), which was delivered in a context which is admittedly different, but similar to that of the present case, that an importer of goods which are the subject of a registration regulation may not bring an action for annulment of that regulation, in the absence of a legal interest in bringing proceedings.
151    In the light of the foregoing, it cannot be held that the 2019 registration regulation must be regarded as an act of general application, annulment of which the applicants could undoubtedly have sought under Article 263 TFEU, within the meaning of the case-law referred to in paragraph 143 above.
152    Consequently, the plea of illegality raised by the applicants must be declared admissible.
153    As regards the substance, in so far as the applicants rely on the Commission’s lack of competence to adopt the 2019 registration regulation in order to confer retroactive effect on the reimposition of the definitive anti-dumping duty on the relevant goods manufactured by Jindal Saw, it should be noted that that criticism is based on a false premiss.
154    It is apparent from recital 21 of the 2019 registration regulation that, unlike registration carried out during the period preceding the adoption of provisional measures, the purpose of registration in the present case, in the context of investigations seeking to apply judgments of the Court, is not to permit possible retrospective collection by way of trade defence measures.
155    In any event, it does not follow either from the wording of Article 10(5) of the 2016 basic regulation or from the general scheme of that regulation that the Commission is empowered to adopt a registration regulation only in the situations referred to in Article 10(2), (4) and (5), Article 11(4), Article 12(5) and Article 13(3) of the 2016 basic regulation, although not in respect of the reimposition of a duty previously annulled by the Court.
156    The Commission’s power to require national authorities to take appropriate measures to register imports is of general application, as is shown by the heading ‘General provisions’ of Article 14 of the 2016 basic regulation. Moreover, Article 14(5) of that regulation is not subject to any restriction as to the circumstances in which the Commission is empowered to require the national customs authorities to register goods.
157    Moreover, depriving the Commission of the right to resort to registration as part of proceedings for reimposing a definitive anti-dumping duty is liable to undermine the effectiveness of regulations that may lead to such a reimposition. That would require the immediate repayment or remission of a duty that might, subsequently, be reintroduced ab initio while potentially making it more difficult to collect that duty again.
158    Moreover, it should be noted that the purpose of the 2019 registration regulation was not only to require the national customs authorities to take appropriate measures to register imports of the relevant goods manufactured by Jindal Saw, but also to instruct those authorities to await the publication of the contested regulation before ruling on the applications for repayment and remission of anti-dumping duties relating to imports of those goods.
159    The Court of Justice has already had occasion to hold that the Commission was empowered to adopt directions aimed at preserving the collection of a definitive anti-dumping duty imposed by a regulation the legality of which had been called into question by the Courts of the European Union and which required the national customs authorities to wait until the Commission had determined the rates at which those duties should have been established, before ruling on the applications for repayment submitted by the traders which paid those duties (judgment of 15 March 2018, Deichmann, C‑256/16, EU:C:2018:187, paragraphs 56 to 60).
160    Therefore, it cannot validly be maintained that the Commission was not empowered to adopt the 2019 registration regulation and, accordingly, infringed Article 14(5) of the 2016 basic regulation.
161    In so far as the applicants rely, in essence, on the lack of justification or reasons for the registration imposed by the 2019 registration regulation, it must be held that that criticism is unfounded. It is apparent from recitals 17 to 22 of the 2019 registration regulation that that registration is based on the need to ensure the effectiveness of trade defence measures and, to that end, to ensure, as far as possible, that imports are subject to the correct amount of definitive anti-dumping duty, without interruption, from the date of entry into force of the initial regulation until the reimposition of the corrected duty, where appropriate.
162    The applicants neither claim nor, a fortiori, establish that those statements are unfounded.
163    In the light of the foregoing, the second part of the seventh plea must be rejected as unfounded.
164    Consequently, the present action must be dismissed in its entirety.
Costs
165    Under Article 134(1) 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 applicants have been unsuccessful, they must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
On those grounds,
THE GENERAL COURT (Eighth Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Jindal Saw Ltd and Jindal Saw Italia SpA to pay the costs.
Svenningsen
Mac Eochaidh
Pynnä
Delivered in open court in Luxembourg on 1 June 2022.
E. Coulon
G. De Baere
Registrar
President
*      Language of the case: English.