JUDGMENT OF THE GENERAL COURT (Second Chamber)
14 December 2022
(*)
(Dumping – Imports of threaded tube or pipe cast fittings, of malleable cast iron, originating in China – Reimposition of a definitive anti-dumping duty – Legal certainty – Legitimate expectations – Non-retroactivity – Article 10 of Regulation (EC) No 1225/2009 (now Article 10 of Regulation (EU) 2016/1036) – Proportionality – Registration of imports – Article 14(5) of Regulation No 1225/2009 (now Article 14(5) of Regulation 2016/1036))
In Case T‑687/20,
Jinan Meide Casting Co. Ltd, established in Jinan (China), and the other applicants whose names are listed in the annex, (1) 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 (Second Chamber),
composed, at the time of the deliberations, of V. Tomljenović (Rapporteur), President, P. Škvařilová-Pelzl and I. Nõmm, Judges,
Registrar: I. Kurme, Administrator,
having regard to the written part of the procedure,
further to the hearing on 28 March 2022,
gives the following
Judgment
1        By their action based on Article 263 TFEU, the applicants, Jinan Meide Casting Co. Ltd and the other legal persons whose names are listed in the annex, seek the annulment of Commission Implementing Regulation (EU) 2020/1210 of 19 August 2020 reimposing a definitive anti-dumping duty on imports of threaded tube or pipe cast fittings, of malleable cast iron and spheroidal graphite cast iron, originating in the People’s Republic of China, manufactured by Jinan Meide [Casting Co.] Ltd following the judgment of the General Court in Case T‑650/17 (OJ 2020 L 274, p. 20; ‘the contested regulation’).
I.      Background to the dispute
2        Jinan Meide Casting Co. Ltd (‘Jinan Meide’) is a company established in China that produces threaded tube or pipe cast fittings, of malleable cast iron, for the domestic market and for export.
3        Boole’s Tools & Pipe Fittings Ltd, Dafina Kereskedelmi és Szolgáltató Kft., Gebo Armaturen GmbH, Geniki emporiou kai viomichanias AE, GT Comis SpA, Rapidrop Global Ltd, Romstal Imex SRL, Site Supplies and Services Ltd, TE Fittings GmbH and Vocla BV have all imported the products manufactured by Jinan Meide as unrelated importers (‘the importing companies’).
4        On 13 May 2013, the Council of the European Union adopted Implementing Regulation (EU) No 430/2013 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of threaded tube or pipe cast fittings, of malleable cast iron, originating in the People’s Republic of China and Thailand and terminating the proceeding with regard to Indonesia (OJ 2013 L 129, p. 1).
5        Article 1(1) of Implementing Regulation No 430/2013 provided:
‘A definitive anti-dumping duty is hereby imposed on imports of threaded tube or pipe cast fittings, of malleable cast iron, excluding bodies of compression fittings using ISO DIN 13 metric thread and malleable iron threaded circular junction boxes without having a lid, currently falling within CN code ex 7307 19 10 (TARIC code 7307191010) and originating in the People’s Republic of China … and Thailand.’
6        Article 1(2) of that implementing regulation provided, in respect of exports by Jinan Meide, that the rate of the definitive anti-dumping duty applicable to the net free-at-Union-frontier price before duty, of the product described in Article 1(1) thereof, was to be 40.8%.
7        By application lodged at the Court Registry on 7 August 2013, Jinan Meide brought an action before the General Court for the annulment of Implementing Regulation No 430/2013 in so far as that implementing regulation applied to it.
8        By its judgment of 30 June 2016, Jinan Meide Casting v Council (T‑424/13, EU:T:2016:378), the Court annulled Implementing Regulation No 430/2013 to the extent that it imposed an anti-dumping duty on imports of threaded tube or pipe cast fittings, of malleable cast iron, manufactured by Jinan Meide.
9        Following the judgment of 30 June 2016, Jinan Meide Casting v Council (T‑424/13, EU:T:2016:378), the European Commission, on 28 October 2016, reopened the anti-dumping investigation which had led to the adoption of Implementing Regulation No 430/2013. That reopening took place as a result of the notice concerning the judgment of 30 June 2016 in Case T‑424/13 in relation to Implementing Regulation No 430/2013 (OJ 2016 C 398, p. 57).
10      Subsequently, the Commission adopted Implementing Regulation (EU) 2017/1146 of 28 June 2017 reimposing a definitive anti-dumping duty on imports of threaded tube or pipe cast fittings, of malleable cast iron, originating in the People’s Republic of China, manufactured by Jinan Meide … (OJ 2017 L 166, p. 23).
11      Article 1(1) of Implementing Regulation 2017/1146 provided:
‘A definitive anti-dumping duty is hereby imposed on imports of threaded tube or pipe cast fittings, of malleable cast iron, excluding bodies of compression fittings using ISO DIN 13 metric thread and malleable iron threaded circular junction boxes without having a lid, currently falling within CN code ex 7307 19 10 (TARIC code 7307
19
10
10) and originating in the People’s Republic of China and manufactured by Jinan Meide (TARIC additional code B336).’
12      According to Article 1(2) of Implementing Regulation 2017/1146, the rate of the definitive anti-dumping duty applicable to the net free-at-Union-frontier price, before duty, was to be 39.2%.
13      The anti-dumping duties imposed on Jinan Meide’s imports between 15 May 2013 and 29 June 2017 were repaid in full by the national customs authorities following the annulment of Implementing Regulation No 430/2013.
14      On 25 September 2017, Jinan Meide brought an action before the Court for the annulment of Implementing Regulation 2017/1146.
15      By its judgment of 20 September 2019, Jinan Meide Casting v Commission (T‑650/17, EU:T:2019:644), the Court annulled Implementing Regulation 2017/1146.
16      As is apparent from a notice published in the Official Journal of the European Union on 29 November 2019 (OJ 2019 C 403, p. 63), concerning the reopening of the investigation following the judgment of 20 September 2019, Jinan Meide Casting v Commission (T‑650/17, EU:T:2019:644), the Commission decided to reopen partially the anti-dumping investigation which had led to the adoption of Implementing Regulation 2017/1146. That reopening was limited in scope to the implementation of the abovementioned judgment, namely with regard to the products manufactured by Jinan Meide.
17      On 29 November 2019, the Commission also published Implementing Regulation (EU) 2019/1982 of 28 November 2019 making certain imports of threaded tube or pipe cast fittings, of malleable cast iron and spheroidal graphite cast iron originating in the People’s Republic of China subject to registration following the reopening of the investigation in order to implement the judgment of 20 September 2019, in Case T‑650/17, with regard to Implementing Regulation 2017/1146 (OJ 2019 L 308, p. 77).
18      Finally, on 21 August 2020, the Commission published the contested regulation.
19      Article 1(1) and (2) of the contested regulation provides:
‘A definitive anti-dumping duty is hereby imposed on the imports into the Union of threaded tube or pipe cast fittings, of malleable cast iron and spheroidal graphite cast iron, excluding bodies of compression fittings using ISO DIN 13 metric thread and malleable iron threaded circular junction boxes without having a lid, currently falling under CN code ex 7307 19 10 (TARIC codes 7307191010 and 7307191020), originating in the People’s Republic of China, manufactured by Jinan Meide … (TARIC additional code B336) as of 15 May 2013.
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 Jinan Meide, shall be 36.0% (TARIC additional code B336).’
20      The first paragraph of Article 2 of that regulation provides:
‘Any definitive anti-dumping duty paid by Jinan Meide pursuant to Implementing Regulation … 2017/1146 in excess of the definitive anti-dumping duty established in Article 1 shall be repaid or remitted.’
21      Article 3(1) and (2) of the contested regulation provides:
‘A definitive anti-dumping duty shall also be collected on imports registered in accordance with Article 1 of Commission Implementing Regulation … 2019/1982 making certain imports of threaded tube or pipe cast fittings, of malleable cast iron and spheroidal graphite cast iron originating in the People’s Republic of China subject to registration following the reopening of the investigation in order to implement the judgment of 20 September 2019, in Case T‑650/17, with regard to Implementing Regulation … 2017/1146 reimposing a definitive anti-dumping duty on imports of threaded tube or pipe cast fittings, of malleable cast iron and spheroidal graphite cast iron, originating in the People’s Republic of China, manufactured by Jinan Meide …
The rate of the definitive anti-dumping duty on imports registered, applicable to the net, free-at[-]Union-frontier price before duty, of the product described in Article 1(1) and manufactured by Jinan Meide, shall be 36.0%.’
II.    Forms of order sought
22      The applicants claim that the Court should:
–        annul the contested regulation;
–        order the Commission to pay the costs.
23      The Commission contends, in essence, that the Court should:
–        dismiss the action;
–        order the applicants to pay the costs.
III. Law
A.      Admissibility of the action as regards the importing companies
24      The Commission contends that the importing companies are not individually concerned by the contested regulation and therefore do not have the necessary standing to bring an action under Article 263 TFEU, with the result that their action is inadmissible. According to the Commission, the contested regulation affects the unrelated importers, in the present case, only in their objective capacity as importers of products which were the subject of the anti-dumping measures concerned, without, however, taking into account their individual situation.
25      The applicants dispute the merits of that argument.
26      In that regard, it must be held that, by virtue of its status as a producer and exporter identified by name in the contested regulation, Jinan Meide has standing to bring an action for annulment of the contested regulation, pursuant to Article 263 TFEU, as interpreted by the case-law (judgment of 21 February 1984, Allied Corporation and Others v Commission, 239/82 and 275/82, EU:C:1984:68, paragraph 12).
27      According to settled case-law, which is based on reasons of procedural economy, if the same act is challenged by several applicants and it is established that one of them has standing to bring proceedings, there is no need to examine whether the other applicants have standing to bring proceedings (see, to that effect, judgments of 24 March 1993, CIRFS and Others v Commission, C‑313/90, EU:C:1993:111, paragraph 31; of 9 June 2011, Comitato ‘Venezia vuole vivere’ and Others v Commission, C‑71/09 P, C‑73/09 P and C‑76/09 P, EU:C:2011:368, paragraphs 36 and 37; and of 30 April 2015, Hitachi Chemical Europe and Others v ECHA, T‑135/13, EU:T:2015:253, paragraph 39).
28      In the present case, in view of the case-law cited in paragraph 27 above and the finding that Jinan Meide has standing to bring an action for annulment of the contested regulation, there is no need to examine whether the importing companies are individually concerned by the contested regulation and thus have the necessary standing to bring an action under Article 263 TFEU against that regulation.
B.      Substance
29      The applicants put forward seven pleas in law, which are subdivided into several parts. By their first plea in law, they submit that the provisions of the contested regulation which provide for the imposition and collection of anti-dumping duties as of 15 May 2013 infringe Article 10(1) of Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (OJ 2009 L 343, p. 51) (now Article 10(1) of 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)), and the general principle of non-retroactivity. The second plea in law alleges that the contested regulation infringes the general principle of non-retroactivity of EU acts and the general principle of legal certainty. By their third plea in law, the applicants submit that, by adopting the contested regulation, the Commission infringed Article 266 TFEU since it failed to take the necessary measures to comply with the judgment of 20 September 2019, Jinan Meide Casting v Commission (T‑650/17, EU:T:2019:644). In addition, they argue that, by adopting the contested regulation, the Commission disregarded the exclusive jurisdiction of the General Court, conferred by Article 264 TFEU, to limit in time the effects of an annulment. Lastly, according to the applicants, the Commission went beyond the scope of the reopening investigation by reimposing the anti-dumping duties retroactively as from the date of entry into force of Implementing Regulation No 430/2013. The fourth plea in law alleges infringement of the principle of proportionality and of Article 5(1) and (4) TEU. By their fifth plea in law, the applicants allege infringement of the right to an effective remedy, as set out in Article 47 of the Charter of Fundamental Rights of the European Union. By their sixth plea in law, the applicants submit that, in so far as the contested regulation provides for anti-dumping duties as of 15 May 2013, the Commission infringed the three-year limitation period laid down in Article 103(1) 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’). They maintain that the Commission also failed to give reasons for the inconsistency between, on the one hand, the obligation to comply with that three-year limitation period and, on the other, the imposition, by the contested regulation, of duties going back more than three years, which amounts to an infringement of Article 296 TFEU. Lastly, the seventh plea in law alleges infringement of Article 14(5) of Regulation No 1225/2009 (now Article 14(5) of Regulation 2016/1036), in that the Commission lacked competence to impose registration of imports of Jinan Meide’s products.
30      The applicants specify that the present action is not directed against the contested regulation in so far as it imposes measures on Jinan Meide’s products ex nunc. Rather, the scope of their action is limited to:
–        the imposition of anti-dumping duties as of 15 May 2013, namely the date on which Implementing Regulation No 430/2013 entered into force, until the entry into force of Implementing Regulation 2019/1982, namely 29 November 2019, and until the instruction addressed to the Member State authorities not to repay and/or remit the duties paid by the applicants and to recover any repayment that took place (first to sixth pleas in the application);
–        the collection of the duties imposed by the contested regulation on imports registered pursuant to Implementing Regulation 2019/1982 (all the pleas in the application).
1.      The first plea in law, alleging infringement of Article 10(1) of Regulation No 1225/2009
31      In the first part of their first plea in law, the applicants submit that, according to Article 10(1) of Regulation No 1225/2009 – that provision being, they argue, applicable ratione temporis – anti-dumping measures may be applied only to products ‘which enter free circulation after the time when [the regulation imposing those measures] enters into force’.
32      In the first place, they submit that, since the contested regulation entered into force on 22 August 2020, a correct application of Article 10(1) of Regulation No 1225/2009 should have led to the anti-dumping duties provided for in the contested regulation being applied only to products which entered free circulation after 22 August 2020. However, they argue that the contested regulation provides for the imposition and collection of duties as of 15 May 2013. According to the applicants, none of the exceptions set out in Regulation No 1225/2009 allowing for the retroactive imposition of anti-dumping duties, such as those provided for in Article 10(4), Article 10(5) or Article 13(3) of that regulation, applies in the present case. They maintain that, as a result, the contested regulation has retroactive effects and infringes Article 10(1) of Regulation No 1225/2009.
33      In the second place, the applicants submit that, prior to the adoption of the contested regulation, no measure imposing anti-dumping duties applicable to Jinan Meide’s products had ever existed or entered into force.
34      According to the applicants, in the judgment of 30 June 2016, Jinan Meide Casting v Council (T‑424/13, EU:T:2016:378), the Court annulled Implementing Regulation No 430/2013 in its entirety, in so far as it concerned Jinan Meide. It follows, they argue, that the duties imposed by the abovementioned regulation on that company were also annulled.
35      Similarly, the applicants submit that in the judgment of 20 September 2019, Jinan Meide Casting v Commission (T‑650/17, EU:T:2019:644), the Court also annulled – and therefore ‘removed’ retroactively from the EU legal order – the anti-dumping duties reimposed by Implementing Regulation 2017/1146. They maintain that those duties were annulled as such, and in their entirety, which means that not only were they null and void, but, as a result of their annulment, they never existed.
36      According to the applicants, the fact that the duties referred to in Implementing Regulation 2017/1146 were, on the date of adoption of the contested regulation, entirely void as regards the applicants is apparent from the operative part of the judgment of 20 September 2019, Jinan Meide Casting v Commission (T‑650/17, EU:T:2019:644). They argue that, contrary to what occurred, for instance, in the judgment of 11 October 2012, Novatex v Council (T‑556/10, not published, EU:T:2012:537), the Court did not couple the operative part of the judgment of 20 September 2019, Jinan Meide Casting v Commission (T‑650/17, EU:T:2019:644), with reservations
to reflect that it was annulling only part of the regulation at issue in that case.
37      The applicants submit that the fact that the annulment ordered in the judgment of 20 September 2019, Jinan Meide Casting v Commission (T‑650/17, EU:T:2019:644), was complete is also apparent from the reasoning of that judgment. According to them, the reasons for annulment went to the very core of the conditions for imposing anti-dumping duties. They maintain, first, that the Court found that the methodology applied by the Commission for the purposes of determining the dumping margin of a significant portion of the total volume of Jinan Meide’s exports to the European Union, namely between a quarter and a third of that volume, was unreasonable (28% of the total volume of the products sold for export). Secondly, according to them, the Court stated that it could not therefore be ruled out that no duty might eventually be imposed on Jinan Meide. They argue that, at that time, it was impossible to know what the amount of the duties payable by Jinan Meide, if any, would ultimately be, and that the amount of those duties therefore could also have been zero. It could not, in fact, even be ruled out that there might be a negative dumping margin.
38      In the third place, the applicants submit that, in so far as, in order to justify the replacement of Implementing Regulation 2017/1146, as annulled by the Court in the judgment of 20 September 2019, Jinan Meide Casting v Commission (T‑650/17, EU:T:2019:644), by the contested regulation, the Commission mentioned, in footnote 12 to the contested regulation, paragraph 79 of the judgment of 15 March 2018, Deichmann (C‑256/16, EU:C:2018:187), and paragraph 58 of the judgment of 19 June 2019, C & J Clark International (C‑612/16, not published, EU:C:2019:508), those judgments cannot justify the approach adopted by the Commission.
39      They maintain that those judgments concerned the reimposition of duties by the Commission after a finding of invalidity, namely that declared in the judgment of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74). In that judgment, they argue, the Court of Justice examined the issue of the correct rate which the Commission should have applied when it adopted the anti-dumping regulation at issue in that case. However, the Court of Justice did not hold that the anti-dumping duties were invalid as such and the issue of retroactivity never actually arose in that judgment.
40      The applicants submit that the contested regulation, for its part, does not entail a reimposition of duties, such as that at issue in the judgments of 15 March 2018, Deichmann (C‑256/16, EU:C:2018:187), and of 19 June 2019, C & J Clark International (C‑612/16, not published, EU:C:2019:508). They maintain that, in the present case, the Court, in the judgment of 20 September 2019, Jinan Meide Casting v Commission (T‑650/17, EU:T:2019:644), annulled in its entirety Implementing Regulation 2017/1146 and the duties provided for therein.
41      In the fourth place, according to the applicants, the retroactive effects of Implementing Regulation 2017/1146 are especially ‘egregious’ with respect to the period from 15 May 2013 to 29 June 2017. Indeed, they maintain that Implementing Regulation 2017/1146 imposed duties only as from the date of its entry into force, namely 30 June 2017. Furthermore, they argue that the importers that requested repayment and/or remission of the duties collected pursuant to Implementing Regulation No 430/2013 obtained full repayment of those duties. Therefore, according to the applicants, the contested regulation applies to an already established legal situation, since Implementing Regulation 2017/1146 imposed duties only as of 30 June 2017, and not as of 15 May 2013.
42      In the fifth place, the applicants add that the Commission also could not legitimately direct the Member State authorities not to repay and/or remit the duties paid by the applicants or to recover any repayment that took place (see Article 2 of the contested regulation), since they maintain that there was no legal basis for doing so.
43      The second part of the first plea in law is based on the distinction between what the applicants refer to as an ‘annulment’ and a ‘declaration of invalidity’. According to the applicants, in the case of an annulment, the annulled act is removed retroactively from the EU legal order and is deemed never to have existed. By contrast, they argue that, in the case of a declaration of invalidity, the act declared to be invalid does not disappear from the legal order until it has been expressly repealed by a new act.
44      The applicants submit that the judgment of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74), was a declaration of invalidity. They maintain that, in the cases which gave rise to the judgments of 15 March 2018, Deichmann (C‑256/16, EU:C:2018:187), and of 19 June 2019, C & J Clark International (C‑612/16, not published, EU:C:2019:508), Article 10(1) of Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (OJ 1996 L 56, p. 1), then in force, was not infringed, since the duties at issue in those cases had been imposed by the challenged acts during the period of application of the original regulations declared to be ‘invalid’. By contrast, the applicants argue that the judgment of 20 September 2019, Jinan Meide Casting v Commission (T‑650/17, EU:T:2019:644), is an annulment. As a result of the annulment of Implementing Regulation 2017/1146 in that judgment, it must be concluded, according to the applicants, that that regulation never existed. They submit that the contested regulation therefore imposes duties for a period during which no regulation imposing anti-dumping duties existed.
45      The Commission disputes those arguments.
46      The arguments raised in the two parts of the first plea in law largely overlap. For that reason, it is appropriate to address those parts together.
(a)    The anti-dumping legislation applicable in the present case
47      In support of their action, the applicants rely on Article 10(1) of Regulation No 1225/2009 (see paragraph 31 above), whereas, in its written pleadings, the Commission consistently refers to Article 10(1) of Regulation 2016/1036.
48      In that regard, it should be borne in mind that, according to settled case-law, in a situation where, following the delivery of a judgment annulling or declaring invalid a regulation imposing anti-dumping duties, the Commission resumes the proceeding which gave rise to the regulation that was annulled or declared to be invalid with a view to reimposing anti-dumping duties, it must, in accordance with the principles governing the temporal application of the law, comply with the substantive rules in force at the time of the facts referred to in that regulation (judgments of 15 March 2018, Deichmann, C‑256/16, EU:C:2018:187, paragraph 77, and of 19 June 2019, C & J Clark International, C‑612/16, not published, EU:C:2019:508, paragraph 54).
49      It is apparent from recital 3 of Implementing Regulation No 430/2013 that the investigation of dumping and injury, carried out by the Commission before the adoption of Implementing Regulation No 430/2013, had covered the period from 1 January to 31 December 2011. As is apparent from a combined reading of the first paragraph of Article 24 of Regulation No 1225/2009 and Article 25 of Regulation 2016/1036, only the substantive provisions of Regulation No 1225/2009 were applicable during the period from 1 January to 31 December 2011. The applicants are therefore correct to start from the premiss that the relevant substantive law ratione temporis is Article 10(1) of Regulation No 1225/2009.
(b)    The possibility of reimposing anti-dumping duties
50      In order to respond to the complaints raised in the context of the first plea in law, it is necessary to recall the content of Article 10(1) of Regulation No 1225/2009 and the Court of Justice’s interpretation of that provision (see paragraphs 51 to 53 below). In addition, two clarifications must be made concerning the interpretation of that provision (see paragraphs 58 to 72 below), the first of which must be regarded as responding to one of the applicants’ arguments (see paragraphs 58 to 64 below).
51      Article 10(1) of Regulation No 1225/2009 enshrines the general principle of non-retroactivity in the area of anti-dumping measures (judgment of 19 June 2019, C & J Clark International, C‑612/16, not published, EU:C:2019:508, paragraph 53). According to that provision, in essence, definitive anti-dumping duties, such as those at issue, may be applied only to products which enter free circulation after the time when the regulation imposing those duties enters into force, subject to the exceptions set out in Regulation No 1225/2009.
52      For its part, the Court of Justice has provided a whole series of clarifications concerning the interpretation of Article 10(1) of Regulation No 1225/2009. Those clarifications are based on a distinction between, on the one hand, measures intended to impose anti-dumping duties and, on the other, measures intended to reimpose such duties. Imposition of anti-dumping duties refers to the situation where the institution concerned, namely, in the present case, the Commission, imposes such a duty for the first time. Reimposition of anti-dumping duties is the situation where the institution concerned adopts an act intended to replace an act which imposed or, as the case may be, reimposed anti-dumping duties at a certain point in time, but which was annulled or declared to be invalid by the EU judicature due to the existence of an illegality.
53      Thus, where the illegality found by the EU judicature has not vitiated the entire proceeding, Article 10(1) of Regulation No 1225/2009 does not preclude the institution concerned from resuming the anti-dumping proceeding and subsequently adopting an implementing regulation reimposing anti-dumping duties on ‘imports that were made during the period of application of the regulations’ which were annulled or declared to be invalid (see, to that effect, judgments of 28 January 2016, CM Eurologistik and GLS, C‑283/14 and C‑284/14, EU:C:2016:57, paragraph 51; of 15 March 2018, Deichmann, C‑256/16, EU:C:2018:187, paragraphs 73 to 79; and of 19 June 2019, C & J Clark International, C‑612/16, not published, EU:C:2019:508, paragraphs 43, 54, 57, 58 and 66). The resumption of an anti-dumping proceeding in order to remedy an illegality found in a judgment annulling or declaring invalid a measure cannot therefore be regarded as contrary to the rule of non-retroactivity laid down in Article 10(1) of Regulation No 1225/2009, on the ground that the anti-dumping duties imposed by the regulation that was annulled or declared to be invalid had expired on the date of adoption of the new regulation (see, to that effect, judgment of 15 March 2018, Deichmann, C‑256/16, EU:C:2018:187, paragraphs 78 and 79).
54      According to the Court of Justice, the option for the institution concerned of reopening the anti-dumping proceeding is available to it directly following a judgment annulling a regulation imposing anti-dumping duties, even if such an option is not expressly provided for by the applicable legislation (judgment of 28 January 2016, CM Eurologistik and GLS, C‑283/14 and C‑284/14, EU:C:2016:57, paragraph 52). In the context of such a proceeding, the institution concerned must base the act reimposing anti-dumping duties on a legal basis that, first, empowers it to adopt that act, and, secondly, is in force on the date of adoption of that act (see, to that effect, judgment of 19 June 2019, C & J Clark International, C‑612/16, not published, EU:C:2019:508, paragraph 40). The provisions governing the competence of the institution concerned in the case of a reimposition of anti-dumping duties are Articles 9 and 14 of Regulation No 1225/2009 or of Regulation 2016/1036 (see, to that effect, judgment of 19 June 2019, C & J Clark International, C‑612/16, not published, EU:C:2019:508, paragraphs 41 to 44). In the present case, the provisions which governed the Commission’s competence to reimpose anti-dumping duties previously annulled or declared to be invalid were Articles 9 and 14 of Regulation 2016/1036.
55      Illegalities which do not vitiate the entire proceeding (see paragraph 53 above) and which the institution concerned may remedy may relate, inter alia, to the rates at which some anti-dumping duties imposed or reimposed by a certain regulation declared to be invalid had been fixed (see, to that effect, judgment of 19 June 2019, C & J Clark International, C‑612/16, not published, EU:C:2019:508, paragraph 49). According to the case-law of the Court of Justice, an irregularity concerning the determination of the normal value is also not an irregularity affecting the entire anti-dumping proceeding. Where such an irregularity occurs, the Commission is entitled to decide, in order to implement Article 266 TFEU, to reopen the proceeding only from the stage of the investigation relating to the determination of that normal value (see, to that effect, judgment of 28 January 2016, CM Eurologistik and GLS, C‑283/14 and C‑284/14, EU:C:2016:57, paragraph 54).
56      Furthermore, it is necessary to reject the applicants’ argument that, in essence, the present case differs from those which gave rise to the judgments of 15 March 2018, Deichmann (C‑256/16, EU:C:2018:187), and of 19 June 2019, C & J Clark International (C‑612/16, not published, EU:C:2019:508), because, they argue, those judgments concerned the reimposition of definitive anti-dumping duties following a finding that an initial regulation was invalid in the context of the procedure laid down in Article 267 TFEU, whereas, in the present case, by the judgments of 30 June 2016, Jinan Meide Casting v Council (T‑424/13, EU:T:2016:378), and of 20 September 2019, Jinan Meide Casting v Commission (T‑650/17, EU:T:2019:644), the anti-dumping duties concerned were annulled in the context of the procedure laid down in Article 263 TFEU.
57      Leaving aside the fact that, as is expressly stated in paragraphs 73 and 74 of the judgment of 15 March 2018, Deichmann (C‑256/16, EU:C:2018:187), and in paragraph 43 of the judgment of 19 June 2019, C & J Clark International (C‑612/16, not published, EU:C:2019:508), the option for the Commission of reimposing anti-dumping duties covers both annulments of regulations under the procedure laid down in Article 263 TFEU and declarations that regulations are invalid in accordance with the preliminary ruling procedure referred to in Article 267 TFEU, it is sufficient to note that a judgment of the Court of Justice in proceedings for a preliminary ruling declaring an EU act invalid in principle has retroactive effect, like a judgment annulling an act (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).
58      As has been pointed out in paragraph 50 above, the Court of Justice’s interpretation of Article 10(1) of Regulation No 1225/2009 requires two findings to be made.
59      One of those findings is intended to respond to the applicants’ argument that it follows from the operative part of the judgment of 20 September 2019, Jinan Meide Casting v Commission (T‑650/17, EU:T:2019:644), that the Court annulled Implementing Regulation 2017/1146 in its entirety, with the result that the duties imposed on Jinan Meide should be regarded as never having existed (see paragraph 36 above and paragraphs 60 to 64 below). The other finding is necessary in the light of the case-law resulting from the judgments of 15 March 2018, Deichmann (C‑256/16, EU:C:2018:187), and of 19 June 2019, C & J Clark International (C‑612/16, not published, EU:C:2019:508), irrespective of whether the parties discussed this in their written pleadings (see paragraphs 65 to 72 below). That second finding also affects the treatment of the seventh plea in law (see paragraph 158 below).
60      In the first place, it is true that, unlike the operative part of the judgment of 21 November 2002, Kundan and Tata v Council (T‑88/98, EU:T:2002:280) (see also, regarding anti-subsidy measures, the operative part of the judgment of 11 October 2012, Novatex v Council, T‑556/10, not published, EU:T:2012:537), in certain judgments of the Court annulling an anti-dumping regulation, there is no mention, in the operative part of the judgments in question, of the extent of the annulment, still less of the defect which vitiates the regulation concerned and which the competent institution may remedy.
61      However, if the case-law resulting from the judgments of 15 March 2018, Deichmann (C‑256/16, EU:C:2018:187), and of 19 June 2019, C & J Clark International (C‑612/16, not published, EU:C:2019:508), concerning the possibility of reimposing anti-dumping duties for the initial period of application of the annulled regulation, is not to be rendered nugatory, the applicants’ interpretation referred to in paragraph 36 above cannot be upheld in all cases.
62      The process of examining factors which the Commission must take into account when complying with a judgment annulling an anti-dumping regulation under Article 266 TFEU is not, and cannot be, limited to examining only the operative part of the judgment in question. In order to comply with the judgment and to implement it fully, the competent institution concerned is required to have regard not only to the operative part of the judgment but also to the grounds which led to the judgment and constitute its essential basis, in so far as they are necessary to determine the exact meaning of what is stated in the operative part. It is those grounds which, on the one hand, identify the precise provision held to be illegal and, on the other, indicate the specific reasons which underlie the finding of illegality contained in the operative part and which the institution concerned must take into account when replacing the annulled measure (judgment of 26 April 1988, Asteris and Others v Commission, 97/86, 99/86, 193/86 and 215/86, EU:C:1988:199, paragraph 27).
63      Since the finding by the EU judicature of the illegality which led to an annulment of the anti-dumping regulation concerned must be regarded – like the operative part – as having acquired the force of res judicata (see, to that effect, judgment of 25 July 2018, Société des produits Nestlé and Others v Mondelez UK Holdings & Services, C‑84/17 P, C‑85/17 P and C‑95/17 P, EU:C:2018:596, paragraph 52), the case-law resulting from the judgments of 15 March 2018, Deichmann (C‑256/16, EU:C:2018:187), and of 19 June 2019, C & J Clark International (C‑612/16, not published, EU:C:2019:508), must be understood as meaning that the fact that the illegality found by the EU judicature is not apparent from the operative part of a judgment, but only from the grounds of the latter, has no effect on the option for the Commission of reimposing anti-dumping duties on imports that were made during the period of application of the regulations which were annulled or declared to be invalid, lest an effective application of the findings stemming from that case-law is to be precluded.
64      It is only where the EU judicature annuls an anti-dumping regulation in its entirety due to an irregularity vitiating all the constituent elements of that regulation or due to an illegality affecting the entire proceeding which led to the adoption of the measure concerned (see paragraph 52 above), that it must be concluded that the abovementioned measure has disappeared from the EU legal order in its entirety and that the Commission cannot therefore reimpose those duties, but only impose new anti-dumping duties, namely duties applicable as from the date of entry into force of the new anti-dumping measure.
65      In the second place, it should be borne in mind that, according to the case-law of the Court of Justice, the reimposition of anti-dumping duties is open to the competent institution ‘provided that such duties are reimposed during their initial application period’ (judgment of 15 March 2018, Deichmann, C‑256/16, EU:C:2018:187, paragraph 78) or with respect to ‘imports that were made during the period of application of the [regulation] declared to be invalid’ or annulled (see, to that effect, judgment of 19 June 2019, C & J Clark International, C‑612/16, not published, EU:C:2019:508, paragraph 56).
66      However, it is not expressly stated in those judgments of the Court of Justice what the concept of ‘initial application period’ or the concept of ‘period of application of the [regulation] declared to be invalid [or annulled]’ actually mean.
67      In particular, the judgments of 15 March 2018, Deichmann (C‑256/16, EU:C:2018:187), and of 19 June 2019, C & J Clark International (C‑612/16, not published, EU:C:2019:508), do not specify whether those concepts refer to the actual and effective period of application of a regulation that was annulled or declared to be invalid, namely the period during which the regulation was actually applied before it was annulled or declared to be invalid by the EU judicature on a specific date, or whether they refer rather to the period of application which the author of the regulation that was annulled or declared to be invalid had envisaged on the date of adoption of that regulation, irrespective therefore of the date on which the annulment or declaration of invalidity of the regulation in question became final.
68      However, since the Court of Justice held, in essence, that the Commission was entitled, for the purposes of adopting an act intended to replace the act that was annulled or declared to be invalid, to resume the investigation which gave rise to the regulation that was annulled or declared to be invalid ‘at the stage when the irregularity [found by the EU judicature] was committed’ (see, to that effect, judgment of 15 March 2018, Deichmann, C‑256/16, EU:C:2018:187, paragraph 74), preserving the effectiveness of that competence necessarily implies that the Commission may reimpose duties for the entire period initially envisaged rather than solely for the period during which the regulation was actually applied before it was annulled or declared to be invalid.
69      In the present case, in the absence of an appeal brought within the period laid down in the first paragraph of Article 56 of the Statute of the Court of Justice of the European Union, read in conjunction with Article 51 of the Rules of Procedure of the Court of Justice, it follows from the second paragraph of Article 60 of the abovementioned statute that the judgment of 30 June 2016, Jinan Meide Casting v Council (T‑424/13, EU:T:2016:378), took effect 2 months and 10 days after the notification of that judgment to Jinan Meide. The period during which Implementing Regulation No 430/2013 actually applied, as regards Jinan Meide’s products, is therefore the period from 15 May 2013 to the date on which that judgment became final.
70      As a result of its annulment by the General Court in the judgment of 20 September 2019, Jinan Meide Casting v Commission (T‑650/17, EU:T:2019:644), the actual period of application of Implementing Regulation 2017/1146 could only have been the period from 30 June 2017, the date on which that regulation entered into force, to the date preceding that on which that judgment took effect. In the absence of an appeal brought within the period laid down in the first paragraph of Article 56 of the Statute of the Court of Justice of the European Union, read in conjunction with Article 51 of the Rules of Procedure of the Court of Justice, it follows from the second paragraph of Article 60 of the abovementioned statute that that judgment took effect 2 months and 10 days after its notification to Jinan Meide. The period during which Implementing Regulation 2017/1146 applied is therefore the period from 30 June 2017 to the date on which the abovementioned judgment became final.
71      Since Article 1(1) of the contested regulation reimposed the anti-dumping duties at issue as of 15 May 2013, those anti-dumping duties also cover, first, the period from the date on which the judgment of 30 June 2016, Jinan Meide Casting v Council (T‑424/13, EU:T:2016:378), became final (see paragraph 69 above) to the date preceding the date of entry into force of Implementing Regulation 2017/1146, and, secondly, the period from the date on which the judgment of 20 September 2019, Jinan Meide Casting v Commission (T‑650/17, EU:T:2019:644), became final to the date preceding the date of entry into force of the contested regulation.
72      In order for the Commission’s competence to reimpose anti-dumping duties to be effective, it must be held that the intervals referred to in paragraph 71 above form part of the ‘initial application period’ of a regulation that was annulled or declared to be invalid, referred to by the Court of Justice in the judgments of 15 March 2018, Deichmann (C‑256/16, EU:C:2018:187), and of 19 June 2019, C & J Clark International (C‑612/16, not published, EU:C:2019:508).
73      It is in the light of those considerations that the applicants’ first plea in law must be examined.
(1)    The judgment of 30 June 2016, Jinan Meide Casting v Council (T‑424/13), and the period of application of Implementing Regulation No 430/2013
74      It is true that the Court did not include within the operative part of the judgment of 30 June 2016, Jinan Meide Casting v Council (T‑424/13, EU:T:2016:378), an express statement that the annulment referred to therein was an annulment in part of the anti-dumping duty for Jinan Meide in that it related only to the amount of that duty which exceeded the amount applicable in the absence of the irregularity found by the Court in paragraphs 128 to 221 of that judgment. However, it is apparent from the grounds of that judgment that the irregularity found by the Court did not affect the entire proceeding which led to the adoption of Implementing Regulation No 430/2013 or all the conditions allowing for the imposition of an anti-dumping duty, but that the annulment effected by that judgment was ordered on account of a defect which had vitiated the proceeding with regard to only one of the conditions that allowed for the adoption of that implementing regulation.
75      In the judgment of 30 June 2016, Jinan Meide Casting v Council (T‑424/13, EU:T:2016:378), the Court held, in essence, that, by rejecting a request that Jinan Meide had made during the procedure before the Commission seeking to obtain disclosure of the normal value calculations, determined on the basis of confidential data of a producer from an analogue country, namely India, the Commission had infringed Jinan Meide’s rights of defence. As is apparent in particular from paragraphs 130, 168, 171 and 206 to 213 of the judgment of 30 June 2016, Jinan Meide Casting v Council (T‑424/13, EU:T:2016:378), the infringement of Jinan Meide’s rights of defence was established solely with regard to the calculation of the normal value ‘that was used for determining’ the individual and definitive dumping margin of that company.
76      In that context, first, it should be noted that, according to the case-law of the Court of Justice, an irregularity concerning the determination of the normal value is not an irregularity affecting the entire anti-dumping proceeding (see paragraph 55 above). Secondly, it is important to point out that, in the judgment of 30 June 2016, Jinan Meide Casting v Council (T‑424/13, EU:T:2016:378), the General Court did not rule on the calculation of the injury suffered by the Union industry, as found by the EU institutions, on whether there was dumping as such, on the existence of the Union interest, or on the causal link which must exist between the allegedly dumped imports and the alleged injury, nor, lastly, did it rule on all the parameters that may be included in the concept of ‘normal value’, bearing in mind, however, that these are the constituent elements of an anti-dumping duty, as is clear from Articles 2 and 3, Article 5(2) and (6), Article 9(4) and Article 21 of Regulation No 1225/2009.
Moreover, the General Court did not state, in any ground of the judgment of 30 June 2016, Jinan Meide Casting v Council (T‑424/13, EU:T:2016:378), that the duties imposed on imports of Jinan Meide’s products should be void as such, or that the abovementioned procedural defect affected the entire proceeding which allowed for the adoption of Implementing Regulation No 430/2013 in respect of Jinan Meide.
77      It is common ground that, in order to implement the judgment of 30 June 2016, Jinan Meide Casting v Council (T‑424/13, EU:T:2016:378), the Commission disclosed to Jinan Meide all the confidential information whose redaction that company had criticised, in particular the confidential file containing the figures used to calculate the dumping margin, including the data from the analogue country (see recitals 53 and 61 of Implementing Regulation 2017/1146) and that it revised Jinan Meide’s duty rate accordingly. Thus, as of 30 June 2017, the anti-dumping duty was reimposed, by Implementing Regulation 2017/1146, in this case at the rate of 39.2% of the net free-at-Union-frontier price as regards Jinan Meide’s products.
78      In view of the foregoing, in the light of the clarifications set out in the judgments of 15 March 2018, Deichmann (C‑256/16, EU:C:2018:187), and of 19 June 2019, C & J Clark International (C‑612/16, not published, EU:C:2019:508), as regards the option for the Commission of reimposing anti-dumping duties on ‘imports that were made during the period of application’ of a regulation which was annulled or declared to be invalid, it must be concluded that, despite the fact that the operative part of the judgment of 30 June 2016, Jinan Meide Casting v Council (T‑424/13, EU:T:2016:378), annulled Implementing Regulation No 430/2013 in its entirety, when the Commission, by the contested regulation, reimposed the anti-dumping duties for the period of application of Implementing Regulation No 430/2013, namely the period which began on 15 May 2013, it did not infringe Article 10(1) of Regulation No 1225/2009.
(2)    The judgment of 20 September 2019, Jinan Meide Casting v Commission (T‑650/17), and the period of application of Implementing Regulation 2017/1146
79      In the judgment of 20 September 2019, Jinan Meide Casting v Commission (T‑650/17, EU:T:2019:644), the Court first noted that, for the purposes of calculating the normal value and the individual dumping margin of Jinan Meide, the Commission had identified three categories of product types: a category of ‘directly comparable’ product types, a second category of ‘quasi-matching’ product types, and a third category of ‘non-matching’ product types (judgment of 20 September 2019, Jinan Meide Casting v Commission, T‑650/17, EU:T:2019:644, paragraphs 62 to 65). In order to calculate the normal value of the category of ‘non-matching’ product types, the Commission had applied a methodology which the Court described in paragraphs 57 to 60 and 68 of its judgment (‘the contested methodology’). Pursuant to that methodology, the Commission had considered that the differences between the export prices charged by the applicant for the ‘non-matching’ product types and the same prices for the ‘directly comparable’ product types constituted a reasonable estimate of the value of the physical differences between those product types for the purpose of making a normal value adjustment (judgment of 20 September 2019, Jinan Meide Casting v Commission, T‑650/17, EU:T:2019:644, paragraph 68). For its part, the Court noted, in essence, that a price likely to be affected by dumping could not form the basis for a reasonable estimate of the market value of differences in physical characteristics within the meaning of Article 2(10)(a) of Regulation No 1225/2009, since such a price may not be the result of normal market forces (judgment of 20 September 2019, Jinan Meide Casting v Commission, T‑650/17, EU:T:2019:644, paragraph 70). In those circumstances, the Court held that the Commission had not demonstrated that, by the contested methodology, it had made a reasonable estimate of the market value of the differences in physical characteristics between the ‘non-matching’ product types and the ‘directly comparable’ product types. Therefore, it had not demonstrated that the application of that methodology resulted in a fair comparison between the normal value and export prices. Furthermore, according to the Court, the Commission had also not demonstrated that the adjustment to the normal value of the ‘non-matching’ product types, which it had also made, had preserved the reasonable determination of that normal value, that is, a determination based on values and parameters which could be considered to be the normal result of market forces. Given the significant proportion of the applicant’s export volume concerned by the application of the contested methodology in that case – namely approximately 28% of Jinan Meide’s export volume during the investigation period – the Court could not exclude the possibility that the application of the contested methodology had a significant impact on the rate of Jinan Meide’s dumping margin adopted in the operative part of Implementing Regulation 2017/1146. In those circumstances, the Court held that, in applying the contested methodology, the Commission had not complied with Article 2(10), ab initio and (a) of Regulation No 1225/2009 (judgment of 20 September 2019, Jinan Meide Casting v Commission, T‑650/17, EU:T:2019:644, paragraphs 57 to 127).
80      It should be recalled that an error vitiating the normal value calculations does not affect the entire procedure for the adoption of an anti-dumping regulation. This is an error which the institution concerned may remedy (see paragraphs 55 and 76 above).
81      Next, it is true that the Court also held that the error vitiating the determination of the normal value had an impact on the full degree of dumping and that the Commission’s assessments regarding dumping could not be upheld either (judgment of 20 September 2019, Jinan Meide Casting v Commission, T‑650/17, EU:T:2019:644, paragraphs 132 and 133). However, it follows, in essence, from paragraphs 333 to 342 of that judgment that the conditions relating to the injury caused to the Union industry and to the causal link were not called into question by the Court. Moreover, the Court did not state, in any part of that judgment, that the duties imposed on Jinan Meide’s products should be void as such. Lastly, it is true that, as the applicants submit (see paragraph 37 above), it was impossible for the Court to know what the amount of the duties payable by Jinan Meide would ultimately be, with the result that the amount of those duties ‘therefore could also have been zero’.
82      In the meantime, it is, however, common ground that, following the judgment of 20 September 2019, Jinan Meide Casting v Commission (T‑650/17, EU:T:2019:644), the Commission reopened the original investigation in order to remedy the error found by the Court. The Commission, in essence, concluded that the information provided allowed it to establish a normal value for all product types exported by Jinan Meide to the European Union based on the information provided by the Indian analogue country producer. On that basis, it is apparent from recital 70 of the contested regulation that the Commission established a revised duty rate at the level of the new dumping margin found, namely 36% on the net free-at-Union-frontier price. The applicants did not take the slightest initiative to challenge the 36% rate or the calculations which allowed that rate to be arrived at.
83      It follows that the defect identified by the Court as regards the determination of the normal value did not affect the entire proceeding which led to the adoption of Implementing Regulation 2017/1146.
84      In view of the foregoing, in the light of the Court of Justice’s findings, as set out in the judgments of 15 March 2018, Deichmann (C‑256/16, EU:C:2018:187), and of 19 June 2019, C & J Clark International (C‑612/16, not published, EU:C:2019:508), as regards the option for the Commission of reimposing anti-dumping duties on ‘imports that were made during the period of application’ of a regulation which was annulled or declared to be invalid, it must be concluded that, even though the operative part of the judgment of 20 September 2019, Jinan Meide Casting v Commission (T‑650/17, EU:T:2019:644), annuls Implementing Regulation 2017/1146 in its entirety, when the Commission, by the contested regulation, reimposed anti-dumping duties for the period of application of Implementing Regulation 2017/1146, namely the period which began to run on 30 June 2017, it did not infringe Article 10(1) of Regulation No 1225/2009.
85      In the light of the foregoing, it must be concluded that the first plea in law is unfounded. It must therefore be rejected.
2.      The second plea in law, alleging infringement of the principle of non-retroactivity and of the principle of legal certainty
86      In their second plea in law, the applicants submit that the contested regulation infringes the general principle of non-retroactivity of EU acts and the principle of legal certainty. According to them, the existence of any retroactive effect is acceptable, exceptionally, where retroactivity is necessary to achieve the aim of a particular measure or where the legitimate expectations of the parties concerned are duly respected. They maintain that, in the present case, the conditions which could exceptionally justify the imposition of retroactive effects are not satisfied.
87      First, the applicants submit that the retroactive effects of the contested regulation are not necessary to protect the Union industry from injurious dumping, given that the duties initially imposed on Jinan Meide’s products, by Implementing Regulation No 430/2013, already protected the Union industry between 15 May 2013 and the date of entry into force of the contested regulation, that is, 22 August 2020. They maintain that, in fact, for more than seven years, the Union industry benefited from duties which were unlawfully levied, without any legal basis, on imports of Jinan Meide’s products, at a level exceeding that to which it was entitled.
88      Secondly, the applicants submit that the retroactive effect of the contested regulation is contrary to their legitimate expectations. They argue that, according to paragraph 34 of the judgment of 18 January 2017, Wortmann (C‑365/15, EU:C:2017:19), the annulment of a regulation imposing anti-dumping or countervailing duties has the consequence that any duty paid under an annulled anti-dumping measure is not legally owed and must, in principle, be repaid. They maintain that since, according to the case-law and a long-standing practice of the Commission, duties collected pursuant to annulled regulations are fully recoverable, the applicants had a legitimate expectation that they would also obtain full repayment and/or remission of the duties which had been unlawfully collected without any legal basis.
89      The Commission disputes those arguments.
90      As a preliminary point, it should be noted that the second plea in law is based on the premiss that the contested regulation has retroactive effects. However, it follows from what was stated in response to the first plea in law that this premiss is incorrect. The anti-dumping duties at issue were reimposed for the initial period of application of Implementing Regulations No 430/2013 and 2017/1146, and that did not entail an infringement of Article 10(1) of Regulation No 1225/2009 for the purposes of the case-law resulting from the judgments of 15 March 2018, Deichmann (C‑256/16, EU:C:2018:187), and of 19 June 2019, C & J Clark International (C‑612/16, not published, EU:C:2019:508). In those circumstances, the arguments mentioned in paragraph 86 above cannot succeed.
91      In any event, first, the applicants are mistaken in asserting that the remedial effects of the contested regulation are not necessary to protect the Union industry from injurious dumping for the period from 15 May 2013 to 22 August 2020, given that, according to them, Implementing Regulation No 430/2013 has already brought about a reduction in the volume of imports of Jinan Meide’s products and therefore an increase in the sales and market share of the Union industry (see paragraph 87 above).
92      The applicants have not disputed, in a substantiated manner, the Commission’s finding that the imports of the products at issue were dumped. Nor have they called into question the fact that the rate of the reimposed anti-dumping duties, namely 36% of the net free-at-Union-frontier price, applicable to imports of Jinan Meide’s products into the European Union, was the correct amount. In those circumstances, they cannot argue that it is not necessary to protect the Union industry against unfair commercial practices on the part of the applicants, in this instance by means of a levy of 36% of the net free-at-frontier price applicable to imports of Jinan Meide’s products into the European Union.
93      Moreover, it also cannot be inferred from the applicants’ assertions that the Commission should have directed the competent national authorities to repay in full the anti-dumping duties at issue in the present case. Directing repayment only of the excess duty rate is just as justified as directing full repayment. It is true that it follows, in essence, from paragraph 34 of the judgment of 18 January 2017, Wortmann (C‑365/15, EU:C:2017:19), that anti-dumping duties paid which are not legally owed must, ‘in principle’, be repaid by the customs authorities, provided that the conditions for such repayment are satisfied. However, that is a statement of principle which reflects one method, among at least two other possible ones, of making repayment of anti-dumping duties. Where, as in the present case, there has been dumping and the amount of the correct duty is not disputed, the Commission may confine itself to ordering repayment only of the amount exceeding the correct amount, thereby protecting the financial interests of the European Union.
94      Secondly, the applicants’ claims regarding an infringement of the principle of the protection of legitimate expectations or of the principle of legal certainty are unconvincing.
95      According to settled case-law, the right to rely on the principle of the protection of legitimate expectations extends to any person in a situation in which an EU institution has caused that person to entertain expectations which are justified by precise assurances provided to him, her or it (see judgment of 21 February 2018, Kreuzmayr, C‑628/16, EU:C:2018:84, paragraph 46 and the case-law cited). Such assurances, in whatever form they are given, constitute precise, unconditional and consistent information (judgment of 16 December 2010, Kahla Thüringen Porzellan v Commission, C‑537/08 P, EU:C:2010:769, paragraph 63).
96      However, when the applicants challenged Implementing Regulations No 430/2013 and 2017/1146, they could not legitimately expect, on the basis of the statement of principle set out in the judgment of 18 January 2017, Wortmann (C‑365/15, EU:C:2017:19), to be able to obtain full repayment of the duties paid. Nor could a combined reading of the operative part of the judgment of 20 September 2019, Jinan Meide Casting v Commission (T‑650/17, EU:T:2019:644), and of the grounds which constitute its basis, lead the applicants legitimately to believe that they should benefit from full repayment of duties paid under Implementing Regulation 2017/1146. Similarly, any previous practice on the part of the Commission, as alleged by the applicants (see paragraph 88 above) and according to which unlawfully imposed duties had to be repaid in full, cannot constitute a source of legitimate expectations, since it does not constitute precise, unconditional and consistent assurances in relation to the applicants’ specific situation.
97      It follows from the foregoing that the arguments relied on in support of the second plea in law are unfounded. They must therefore be rejected on that ground, as must, consequently, the second plea in law in its entirety.
3.      The third plea in law, alleging infringement of Articles 264 and 266 TFEU
98      The third plea in law is divided into two parts, the first of which is subdivided into two complaints.
99      By the first complaint of the first part of the third plea in law, the applicants submit that, by adopting the contested regulation, the Commission infringed Article 266 TFEU. They maintain that, by imposing anti-dumping duties as of 15 May 2013 through the contested regulation, the Commission disregarded the annulment ordered by the Court in the judgment of 20 September 2019, Jinan Meide Casting v Commission (T‑650/17, EU:T:2019:644), which is an annulment in full.
100    Indeed, according to the applicants, in order to comply with Article 266 TFEU, the Commission should have adopted a regulation imposing duties in respect of the future, that is to say, ex nunc, and not retroactively. They argue that, at the very least, the Commission was required, in the present case, by virtue of the obligation laid down in that article, to refrain from interfering in the process for repayment of duties which were not legally owed.
101    By the second complaint of the first part of the third plea in law, the applicants submit that, by adopting the contested regulation, the Commission disregarded the exclusive competence of the General Court, conferred by Article 264 TFEU, to limit in time the effects of an annulment. They argue that, admittedly, under the second paragraph of that article, the Court may, where this is justified by overriding considerations of legal certainty, maintain anti-dumping duties which would otherwise be retroactively annulled. According to the applicants, however, the Court did not consider it appropriate to do so in the judgment of 20 September 2019, Jinan Meide Casting v Commission (T‑650/17, EU:T:2019:644). They submit that, by imposing the duties retroactively, despite the annulment of the duties that took place ex tunc, the Commission disregarded the exclusive competence conferred on the Court by Article 264 TFEU, which is exercised only in very limited circumstances.
102    In the second part of their third plea in law, the applicants submit that the Commission went beyond the scope of the reopening investigation, which also amounted to an infringement of Article 266 TFEU. They maintain that the temporal scope of the investigation that was reopened in 2019 by the Commission to remedy the illegality found by the Court in the judgment of 20 September 2019, Jinan Meide Casting v Commission (T‑650/17, EU:T:2019:644), was limited by the Commission itself to the assessment of ‘whether the correct application of the rules could justify the reimposition of the measures at the original or a revised level as from the date on which [Implementing Regulation 2017/1146] entered into force originally or not’, namely 30 June 2017. However, the applicants argue that the temporal scope of the contested regulation begins well before that date, that is to say, on the date of entry into force of Implementing Regulation No 430/2013, namely 15 May 2013.
103    The Commission disputes those arguments.
104    As has already been pointed out in paragraph 62 above, in order to comply with a judgment of the EU judicature in accordance with Article 266 TFEU, the Commission must take into account not only the operative part of the judgment in question, but also the grounds which constitute its essential basis. In the present case, contrary to what the applicants submit (see paragraph 99 above), when the Commission remedied the error found in the judgment of 20 September 2019, Jinan Meide Casting v Commission (T‑650/17, EU:T:2019:644), by adopting the contested regulation and reimposing the anti-dumping duties as of 15 May 2013, it did not disregard the operative part of that judgment. Nor did it disregard the grounds on which the operative part of that judgment is based. Contrary to the applicants’ assertions (see paragraph 99 above), the annulment of Implementing Regulation 2017/1146 in its entirety by the judgment of 20 September 2019, Jinan Meide Casting v Commission (T‑650/17, EU:T:2019:644), did not prevent the Commission from reimposing those duties. That judgment annulled Implementing Regulation 2017/1146 on the sole ground that Jinan Meide’s individual anti-dumping margin was erroneously calculated. Since the contested regulation is intended to remedy that specific error and it is not disputed that that was successful, the Commission cannot be accused of having infringed Article 266 TFEU.
105    Next, as regards, more specifically, the argument that the applicants were entitled to request the Commission to restore the situation in which they found themselves prior to the adoption of the contested regulation, with the consequence that, inter alia, the amount which was ‘paid but not owed’ under Implementing Regulation 2017/1146 must be repaid (see paragraph 100 above), it also cannot be held that the Commission has impeded its obligations under Article 266 TFEU. Ordering repayment of the difference, together with interest, between the amounts collected and the amounts indisputably owed is a method of repayment which, in any event, is not incompatible with paragraph 34 of the judgment of 18 January 2017, Wortmann (C‑365/15, EU:C:2017:19).
106    The first complaint of the first part of the third plea in law is therefore unfounded and must be rejected on that ground.
107    As regards the second complaint of the first part of the third plea in law, it should be noted that the fact that the General Court did not consider it necessary to limit the retroactive effect of the annulment ordered does not mean that it held that the Commission should not be able to adopt, in place of the annulled act, 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). Thus, in the present case, the fact that the General Court did not expressly set any time limit, as it is entitled to do under Article 264 TFEU, does not mean that the Commission could not reimpose the appropriate level of duties legitimately owed during the period of application of the original measures. The Court of Justice has itself upheld that option, particularly in the judgments of 15 March 2018, Deichmann (C‑256/16, EU:C:2018:187), and of 19 June 2019, C & J Clark International (C‑612/16, not published, EU:C:2019:508).
108    Lastly, the second part of the third plea in law calls for the following observations.
109    It is true that there is no case-law addressing the question of what might be the impact of a difference between, on the one hand, the definition of the factual and legal framework of the examination and therefore of the ‘temporal framework’ of an anti-dumping investigation, as announced in a notice of initiation published pursuant to Articles 5 and 6 of Regulation 2016/1036, in force during the procedure for the adoption of the contested regulation, read in conjunction with recital 12 of that regulation, or in a notice of reopening published in compliance with a judgment of the EU judicature, such as that at issue in the present case, and, on the other, the definition of the temporal scope of an anti-dumping regulation adopted after the publication of such a notice.
110    Nevertheless, there is case-law on the impact which the factual and legal framework set out in a decision to initiate the formal investigation procedure in respect of State aid, adopted pursuant to Article 108(2) TFEU and Article 6 of Council Regulation (EU) 2015/1589 of 13 July 2015 laying down detailed rules for the application of Article 108 of the Treaty on the Functioning of the European Union (OJ 2015 L 248, p. 9), might have on a final State aid decision.
111    As regards decisions to initiate the formal investigation procedure in respect of State aid, it has been held that the Commission could not be required to present a complete analysis of the aid at issue in its notice of intention to initiate the formal investigation procedure. It must, however, define sufficiently the framework of its investigation so as not to render meaningless the right of interested parties to submit their comments (judgment of 12 July 2018, Austria v Commission, T‑356/15, EU:T:2018:439, paragraph 703). Next, it is apparent from the case-law that any difference between the decision to initiate the formal investigation procedure and the final decision cannot be regarded in itself as constituting a defect rendering the final decision unlawful. The rule that the Commission must give interested parties an opportunity to submit their comments, as provided for in Article 108(2) TFEU and in Article 6 of Regulation 2015/1589, is in the nature of an essential procedural requirement within the meaning of Article 263 TFEU only where, between the decision to initiate the procedure and the final State aid decision, there is a material change concerning matters of fact or of law which may be decisive in the assessment of the existence of aid and therefore may affect the very nature of the measure at issue (see, to that effect, judgments of 11 December 2008, Commission v Freistaat Sachsen, C‑334/07 P, EU:C:2008:709, paragraphs 55 and 56, and of 12 July 2018, Austria v Commission, T‑356/15, EU:T:2018:439, paragraph 727).
112    Admittedly, since a notice of initiation or of reopening in anti-dumping matters does not constitute a decision, such as that referred to in Article 6 of Regulation 2015/1589, the latter being a decision falling within the scope of the fourth paragraph of Article 288 TFEU, any analogy with the rules set out in paragraph 111 above must be made with caution.
113    The act by which the Commission initiates anti-dumping proceedings is a purely preparatory act which is not capable of immediately and irreversibly affecting the applicant’s legal position (orders of 14 March 1996, Dysan Magnetics and Review Magnetics v Commission, T‑134/95, EU:T:1996:38, paragraph 23; of 10 December 1996, Söktas v Commission, T‑75/96, EU:T:1996:183, paragraph 31; and of 25 May 1998, Broome & Wellington v Commission, T‑267/97, EU:T:1998:108, paragraph 29).
114    Nevertheless, if such an analogy were to be made in the present case, no error on the part of the Commission could be found.
115    It is true that, in its ‘notice of reopening the investigation following the judgment of 20 September 2019, in Case T‑650/17’ (see paragraph 16 above), the Commission stated that ‘the purpose of the reopening of the investigation is to fully address the mistakes identified by the General Court and to assess whether the correct application of the rules could justify the reimposition of the measures at the original or a revised level as from the date on which [Implementing Regulation 2017/1146] entered into force originally or not’. It is also true that, contrary to what it had stated in the notice of reopening as regards the date of entry into force of the reimposition of the anti-dumping duties, the Commission, in the contested regulation, reimposed the duties in question as of 15 May 2013.
116    However, in the first place, it should be borne in mind that that potential procedural defect relates, at most, only to the reimposition of anti-dumping duties for the period from 15 May 2013 to the date preceding the date of entry into force of Implementing Regulation 2017/1146, namely 29 June 2017. From 15 May 2013 to 29 June 2017, the reimposition of the duties at issue at 36% in respect of Jinan Meide is solely declaratory in nature. There is no longer any obligation imposed on imports of Jinan Meide’s product for that period. First, as has been noted in paragraph 13 above, the duties paid under Implementing Regulation No 430/2013 were repaid in full following the annulment of that regulation by the judgment of 30 June 2016, Jinan Meide Casting v Council (T‑424/13, EU:T:2016:378). Secondly, Article 1 of the contested regulation does not reopen the definitive situation regarding imports made between 15 May 2013 and 29 June 2017, since Article 2 of the contested regulation limits its effects solely to the collection of duties paid under Implementing Regulation 2017/1146, that is to say, duties on imports made as from the date of entry into force of the latter regulation, namely 30 June 2017. In the light of those factors, any error resulting from the existence of a difference between, on the one hand, the temporal scope of the examination set out in the notice of reopening and, on the other, the temporal scope of the contested regulation, amounts merely to an error on a non-essential and non-decisive point. That difference has no effect on the applicants’ rights as regards the period from 15 May 2013 to 29 June 2017.
117    In the second place, the definition of the temporal scope of the examination of the reimposition of anti-dumping duties in a notice of reopening, such as that at issue, is not a valid source of legitimate expectations, since it is not, in this respect, a precise and unconditional assurance, either as regards the steps to be taken following that examination or as regards the temporal scope of the measures taken following the investigation, as such. That is all the more the case since, in recital 8 of Implementing Regulation 2019/1982, which was published on the same date as the notice of reopening, namely 29 November 2019, the Commission described its notice as seeking to ‘partially reopen the … investigation … that led to the adoption of the anti-dumping Regulation at issue and to resume it at the point at which the irregularity occurred’. That information was, at the very least, liable to give rise to doubt regarding the scope of the subject matter of the examination set out in the notice of reopening, as was apparent from the notice itself, and thus to undermine any argument that there was a legitimate expectation on the part of the applicants.
118    It follows from the foregoing that the second part of the third plea in law is also unfounded. In those circumstances, it must be concluded that the third plea in law is unfounded in its entirety and must be rejected on that ground.
4.      The fourth plea in law, alleging infringement of the principle of proportionality referred to in Article 5(1) and (4) TEU
119    By the fourth plea in law, the applicants submit that the imposition of anti-dumping duties retroactively is manifestly inappropriate and is not necessary to achieve the objective pursued. They maintain that the contested regulation was therefore adopted in breach of the principle of proportionality, as referred to in Article 5(1) and (4) TEU. In addition, they argue that, even if it were legally possible – as a matter of principle – to reimpose duties retroactively, it should be noted that the Commission had to choose between imposing duties solely in respect of the future and reimposing those duties in respect of both the future and the past, and that it should have chosen the least onerous option. According to the applicants, the retroactive imposition of anti-dumping duties is very onerous for them, while it does not entail any advantages for the Union industry. They submit that any advantage which the Union industry may have gained from the protection of the market has already taken place. They maintain that the Union industry in fact derived a benefit beyond that to which it was entitled for a period of more than seven years. If anything, the applicants argue, only full repayment of all the duties that were levied on Jinan Meide’s products between 15 May 2013 and the date of entry into force of the contested regulation would serve as an appropriate measure to remedy, at least in part, the unlawful harm caused to the applicants.
120    The Commission disputes those arguments.
121    It should be noted at the outset that the fourth plea in law is also based on the premiss that the contested regulation has retroactive effects. However, it has been shown above that this premiss was incorrect. Moreover, the fourth plea in law cannot be upheld.
122    It should be borne in mind that, according to the case-law, whilst the principle of proportionality applies to the question whether the amount of anti-dumping duties imposed is appropriate in the light of the injury suffered by the Union industry, it does not, however, apply to the question of the imposition per se of those duties. The lawfulness of the imposition per se of definitive anti-dumping duties by a regulation such as the contested regulation cannot be called into question by reference to the principle of proportionality (see, to that effect, judgment of 4 July 2002, Arne Mathisen v Council, T‑340/99, EU:T:2002:174, paragraphs 121 and 122).
123    As is apparent from Article 5(6) and Article 9(4) of Regulation No 1225/2009, the possibility for the Commission of imposing an anti-dumping duty is conditional on there being dumping, injury and a causal link between the allegedly dumped imports and the alleged injury, and on the existence of the Union interest as referred to in Article 21 of that regulation. In regulating those conditions, the legislature itself weighed up the interests of the parties concerned and the Union interest, and did so, in an abstract manner, already at the stage when Regulation No 1225/2009 was adopted. In the event of dumping, injury to the Union industry and a causal link between that injury and the dumped imports, and where the Union interest so requires, Regulation No 1225/2009 provides that a definitive anti-dumping duty may be imposed by the Commission.
124    In that regard, a firm concerned may choose to challenge the legislative model contained in Article 5(6) and in Article 9(4) of Regulation No 1225/2009, which would imply challenging nothing less than the validity, as such, of Article 5(6) and of Article 9(4), and would amount to an attempt to allege an infringement of the principle of proportionality on the part of the legislature. Such a criticism cannot reasonably be levelled at the Commission, since that institution is not the author of the legislative model contained in Article 5(6) and in Article 9(4) of Regulation No 1225/2009.
125    By contrast, given that the correct rate of an anti-dumping duty constitutes a parameter which was not established by the legislature, but which is the result of certain specific calculations particular to the case that is of concern to the Commission at a certain point in time, an interested party may seek to criticise that institution for having adopted a manifestly disproportionate rate.
126    In the present case, it is clear that the applicants do not challenge the rate of the anti-dumping duty chosen by the Commission (namely 36%), that is to say, the only factor which could reasonably be attributed to the Commission.
127    Lastly, in so far as the applicants seek to demonstrate that the reimposition of the anti-dumping duties at issue (or the retroactive imposition thereof, according to them) is disproportionate, since it covers a period ‘of more than seven years’ during which the Union industry has already derived a benefit beyond that to which it was entitled (see paragraph 119 above), it is sufficient to note the following factors.
128    The applicants do not dispute in any substantiated manner that there was, from 15 May 2013 at the latest, dumping and injury, with the result that the Commission was justified in inferring from this that there was a Union interest in measures being taken with respect to imports of Jinan Meide’s products. To insist, in that context, that the Union industry has already derived a benefit beyond that to which it was entitled is a mere assertion which is unsubstantiated and unproven. The applicants have not shown how setting the amount of the anti-dumping duty, in the present case at 36% of the net free-at-Union-frontier price, for the period from 15 May 2013 to the entry into force of the contested regulation was manifestly disproportionate. Moreover, it is not apparent from the documents before the Court what measure less onerous than the reimposition of an anti-dumping duty at the rate of 36% of the net free-at-Union-frontier price could have been adopted by the Commission in order to address the need to protect the Union industry in the light of the injury found.
129    In the light of the foregoing, the fourth plea in law must be rejected.
5.      The fifth plea in law, alleging infringement of the right to an effective remedy referred to in Article 47 of the Charter of Fundamental Rights
130    By their fifth plea in law, the applicants allege that, by imposing anti-dumping duties retroactively through the contested regulation and by directing the Member State authorities not to repay and/or remit the duties which had been unlawfully collected, the Commission infringed their right to an effective remedy as enshrined in Article 47 of the Charter of Fundamental Rights. They submit that, for them, the most effective remedy for the unlawful imposition of duties on their imports was to obtain an annulment and thus to be reimbursed in full for the duties which they had unduly paid. The applicants go on to state that the effect of the manner in which the Commission acted in the present case is that there would in fact be no point in a party such as Jinan Meide bringing an action against unlawful trade defence measures, particularly in cases of purely procedural infringements. They add that, in an extreme case, the Commission could decide to initiate an investigation and impose trade defence measures without complying with a single one of the substantive or procedural requirements prescribed by Regulation No 1225/2009 for the imposition of measures and that, if the Commission were to do so once again, and unlawfully, such a process could recur indefinitely. According to the applicants, that would be absurd and dangerous since it would erode the authority of the EU judicature itself. They submit that such ‘actions by the Commission set a bad and dangerous precedent, and call into question the level of judicial protection afforded to parties in the Union. It completely undermines the right to an effective remedy and represents a worrying and slippery slope towards a total lack of accountability and the erosion of the judicial remedies available in the legal order of the Union’.
131    The Commission disputes those arguments.
132    As a preliminary point, it should be noted that the fifth plea in law is also dependent on the argument that the contested regulation has retroactive effects. Since that argument has already been refuted, the present plea in law cannot succeed.
133    In addition, it should be noted that when, in the contested regulation, the Commission reimposed duties on imports falling within the period of application of the original measures, it took account of the option at issue in the judgments of 15 March 2018, Deichmann (C‑256/16, EU:C:2018:187), and of 19 June 2019, C & J Clark International (C‑612/16, not published, EU:C:2019:508).
134    When the Commission directed the customs authorities to repay only the excess amounts and implicitly and necessarily found that there was no need, in the present case, to repay the amounts in full, it acted consistently with paragraph 34 of the judgment of 18 January 2017, Wortmann (C‑365/15, EU:C:2017:19). It does not follow from that paragraph that, each time a party concerned brings an action for annulment in the field of trade defence, the consequence should automatically be to make full repayment of the duties in question. It is true that such a consequence is necessary where the illegality found by the EU judicature has the effect of vitiating the entire proceeding which led to the adoption of the annulled anti-dumping regulation, with the result that the illegality found cannot be remedied. By contrast, where the irregularity found affects only the amount of the anti-dumping duties at issue or only one of the parameters enabling the adoption of an anti-dumping implementing regulation, the party concerned cannot legitimately expect full repayment to be the only available remedy for redressing the irregularity found.
135    Lastly, when the Commission decided that the excess amounts repaid should be increased by interest in accordance with the applicable customs legislation, it did not adopt any measure that was at odds with paragraph 34 of the judgment of 18 January 2017, Wortmann (C‑365/15, EU:C:2017:19).
136    It follows from the foregoing that there is no basis for the applicants’ complaint that the Commission infringed their right to an effective remedy. The fifth plea in law must therefore be rejected as unfounded.
6.      The sixth plea in law, alleging infringement of Article 103(1) of the Union Customs Code and of Article 296 TFEU
137    By the first part of their sixth plea in law, the applicants submit that, by ordering the national customs authorities, in the contested regulation, to collect duties as of 15 May 2013, the Commission imposed anti-dumping duties for a period in respect of which such duties were time-barred under Article 103(1) of the Union Customs Code, thereby infringing that provision. According to them, it follows from a combined reading of Article 103(1) and Article 77 of the Union Customs Code that no duty may be collected, in principle, more than three years after the importing of the products concerned. They maintain that, contrary to that rule, the contested regulation imposes duties as of 22 August 2020 on imports that were cleared through customs as of 15 May 2013, that is to say, seven years after the imports were made.
138    By the second part of the sixth plea in law, the applicants allege that, by failing to give reasons for the inconsistency between the instruction to collect the duties in accordance with the customs legislation, that is to say, before the expiry of the three-year limitation period, and the operative part imposing duties and directing the customs authorities to collect those duties going back more than seven years, the Commission infringed Article 296 TFEU.
139    The Commission disputes those arguments. In particular, it expresses doubts regarding the admissibility of the present plea in law, since it argues that Jinan Meide has not established an interest in bringing proceedings. According to the Commission, Jinan Meide is not itself subject to the notification of the customs debt by the customs authorities.
140    There is no need to examine whether Jinan Meide is entitled to raise the sixth plea in law, since, in any event, that plea must be rejected as unfounded.
141    In that regard, it should be noted, as a preliminary point, that the first part of the sixth plea in law is also dependent on the argument that the contested regulation has retroactive effects. For that reason alone, the sixth plea in law cannot succeed, since that argument is incorrect, as has been stated above.
142    In any event, assuming that Article 103(1) of the Union Customs Code is in fact applicable to the present case, which, moreover, is conceivable only with respect to the period actually falling within the scope of that code, that is to say, excluding the period covered by the time-barring provided for by Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1), it should be noted that the first part of the sixth plea in law is based on the premiss that the obligation laid down in that provision is addressed to the Commission. That applies not only to Jinan Meide but also to the importing companies.
143    However, that premiss is incorrect. According to Article 103(1) of the Union Customs Code, ‘no customs debt shall be notified to the debtor after the expiry of a period of three years from the date on which the customs debt was incurred’. The obligation set out in Article 103(1) applies only to the notification of the customs debt – albeit subject to the exceptions provided for in Article 103(2) and (3) – and is therefore incumbent solely on the competent national customs authorities, as is apparent from Article 101(1) of the Union Customs Code. In other words, it is the national customs authorities which take care, on a case-by-case basis, to ensure that the notification of the customs debt, to which the collection of the anti-dumping duties at issue amounts, does not take place in respect of time-barred duties. By contrast, the Commission is in no way required to carry out notifications of customs debts, such as those referred to in the abovementioned provision. That obligation is therefore not incumbent on the Commission. That legal situation is, moreover, directly reflected in the wording of the second paragraph of Article 2 of the contested regulation, according to which, in essence, it is by the ‘national customs authorities’ that the repayment of amounts in excess of 36% must be made ‘in accordance with the applicable customs legislation’.
144    Since the implementation of the Union Customs Code is not a matter for the Commission, but a matter for the Member States, the Commission did not infringe Article 103(1) of that code and could not have infringed that provision, with the result that the first part of the sixth plea in law must be rejected as manifestly unfounded.
145    As regards the second part of the sixth plea in law, the applicants allege that the Commission infringed Article 296 TFEU by failing to give reasons for the inconsistency between, on the one hand, the instruction to collect duties in accordance with the customs legislation which provides for a three-year limitation period and, on the other, the operative part imposing duties and directing the customs authorities to collect those duties going back more than seven years.
146    First, for the reasons set out above, there is no inconsistency between, on the one hand, the customs legislation applicable in the present case and the reimposition of the duties at issue, and, on the other, the instruction concerning their collection for the period from 15 May 2013 to 22 August 2020.
147    Secondly, it is settled case‑law that the statement of reasons required by the second paragraph of Article 296 TFEU must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in such a way as to enable the persons concerned to ascertain the reasons for it and to enable the competent EU Court to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular, the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see judgment of 2 September 2021, Commission v Tempus Energy and Tempus Energy Technology, C‑57/19 P, EU:C:2021:663, paragraph 198 and the case-law cited).
148    The contested regulation contains an element that clearly precludes or, at the very least, resolves any contradiction between the customs legislation and the reimposition of the anti-dumping duties which are the subject of the present action. By using the phrase ‘in accordance with the applicable customs legislation’, the Commission neutralised any possible inconsistency between the customs legislation and the reimposition of anti-dumping duties. Moreover, in recitals 1 to 18, the contested regulation clearly states the reasons for the adoption of that regulation. It also explains clearly the consequences of the reimposition of duties at the rate of 36% for the period of application of Implementing Regulations No 430/2013 and 2017/1146. Thus, the instructions given to the national customs authorities are intended to enable the applicants and the operators who have imported Jinan Meide’s products to recover the excess amounts collected, plus the applicable interest, in compliance with the applicable customs rules, as has been stated above. It follows that not only is there no inconsistency as referred to in paragraph 138 above, but the Commission did indeed explain the parameters necessary for understanding the contested regulation, as well as the possibility for Jinan Meide and the importing companies of recovering amounts owed by the customs authorities. The Commission therefore gave an adequate statement of reasons for the contested regulation.
149    In the light of the foregoing, it must be concluded that the sixth plea in law is unfounded.
7.      The seventh plea in law, alleging infringement of Article 14(5) of Regulation No 1225/2009 and lack of competence to adopt Implementing Regulation 2019/1982
150    By the first part of their seventh and final plea in law, the applicants submit that the mere fact that the Commission registered imports of Jinan Meide’s products as of 30 November 2019 by means of Implementing Regulation 2019/1982 does not provide a basis for that institution to impose the anti-dumping duties at issue retroactively. In other words, according to them, the mere fact that the Commission made the imports subject to registration does not, in itself, provide an additional exception to the principle of non-retroactivity of anti-dumping duties. They maintain that Article 10(1) of Regulation No 1225/2009 provides only for very specific exceptions to the principle of non-retroactivity of anti-dumping and countervailing duties, none of which applies in this case.
151    In the second part of their seventh plea in law, the applicants submit that the Commission lacked ‘competence’ to register those imports and then to collect duties retroactively. They argue that it had no legal basis for adopting Implementing Regulation 2019/1982, with the result that that regulation is unlawful and therefore invalid. According to the applicants, Article 14(5) of Regulation No 1225/2009 could not serve as a basis for the adoption of that implementing regulation. They submit that it is only where certain substantive conditions are met, namely in the context of provisions such as Article 10(4) and (5), Article 11(4), Article 12(5) or Article 13(3) of Regulation No 1225/2009, that registration of imports may be authorised in accordance with the abovementioned Article 14(5). The applicants argue, however, that none of those provisions applies in the present case. Nor, they maintain, does the reopening of an investigation constitute a measure that can justify imposing registration of imports.
152    Lastly, the applicants state that, to the extent that the Court considers that they should have brought an action for annulment against Implementing Regulation 2019/1982, the seventh plea in law should be understood as invoking the inapplicability of that regulation under Article 277 TFEU.
153    The Commission disputes those arguments.
154    Both parts of the seventh plea in law may be addressed together on the basis of the following findings.
155    First, regardless of the response to be given to the seventh plea in law, any finding by the General Court that Implementing Regulation 2019/1982 is vitiated by illegality cannot lead to the annulment of Articles 1 and 2 of the contested regulation. The adoption of those articles is not based on any of the provisions of Implementing Regulation 2019/1982. In so far as the applicants seek the annulment of Articles 1 and 2 of the contested regulation by arguing that that implementing regulation is unlawful, the seventh plea in law is ineffective.
156    Secondly, as regards Article 3 of the contested regulation, which provides for the collection of the new 36% rate of the duty on registered imports, it should be noted that the validity of that provision – which, moreover, is severable from Articles 1 and 2 of that regulation – admittedly depends directly on the validity of Implementing Regulation 2019/1982.
157    However, the fact remains that the registration imposed by Implementing Regulation 2019/1982 covers the period from 30 November 2019, that is, the date of entry into force of that regulation (see Article 2 thereof), to 30 August 2020 (see Article 1(2) thereof).
158    That period corresponds in its entirety to the ‘period of application’ of Implementing Regulation 2017/1146, as envisaged by its author (see paragraphs 67 to 72 above), and in respect of which the Commission was entitled to reimpose the anti-dumping duties at issue without thereby infringing Article 10(1) of Regulation No 1225/2009 (see paragraph 84 above). The Commission was entitled to do so on the basis of the case-law resulting from the judgments of 15 March 2018, Deichmann (C‑256/16, EU:C:2018:187), and of 19 June 2019, C & J Clark International (C‑612/16, not published, EU:C:2019:508), and therefore irrespective of the existence of Implementing Regulation 2019/1982.
159    It follows that any annulment of the abovementioned Article 3 will have no effect on the possibility of collecting anti-dumping duties on the basis of Articles 1 and 2 of the contested regulation.
160    In that context, it should also be pointed out that, at the hearing, following a question from the Court, the Commission contended, in essence, that Article 3 of the contested regulation was ‘redundant’, or even ‘not necessary’, in relation to Article 2 of that regulation. It argued that Article 3 is ‘actually’ intended to facilitate the collection of anti-dumping duties by the national authorities. According to the Commission, that provision should be understood as seeking to provide greater clarity as regards the obligations of the competent national authorities.
161    In those circumstances, it must be concluded that the seventh plea in law is also ineffective as regards the annulment of Article 3 of the contested regulation.
162    It follows from all of the foregoing that the action is unfounded. It must therefore be dismissed on that ground.
Costs
163    Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
164    In the present case, 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 (Second Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Jinan Meide Casting Co. Ltd and the other applicants whose names are listed in the annex to pay the costs.
Tomljenović
Škvařilová-Pelzl
Nõmm
Delivered in open court in Luxembourg on 14 December 2022.
E. Coulon
M. van der Woude
Registrar
President
Table of contents
I.
Background to the dispute
II.
Forms of order sought
III.
Law
A.
Admissibility of the action as regards the importing companies
B.
Substance
1.
The first plea in law, alleging infringement of Article 10(1) of Regulation No 1225/2009
(a)
The anti-dumping legislation applicable in the present case
(b)
The possibility of reimposing anti-dumping duties
(1)
The judgment of 30 June 2016, Jinan Meide Casting v Council (T424/13), and the period of application of Implementing Regulation No 430/2013
(2)
The judgment of 20 September 2019, Jinan Meide Casting v Commission (T650/17), and the period of application of Implementing Regulation 2017/1146
2.
The second plea in law, alleging infringement of the principle of non-retroactivity and of the principle of legal certainty
3.
The third plea in law, alleging infringement of Articles 264 and 266 TFEU
4.
The fourth plea in law, alleging infringement of the principle of proportionality referred to in Article 5(1) and (4) TEU
5.
The fifth plea in law, alleging infringement of the right to an effective remedy referred to in Article 47 of the Charter of Fundamental Rights
6.
The sixth plea in law, alleging infringement of Article 103(1) of the Union Customs Code and of Article 296 TFEU
7.
The seventh plea in law, alleging infringement of Article 14(5) of Regulation No 1225/2009 and lack of competence to adopt Implementing Regulation 2019/1982
Costs
Annex
Boole’s Tools & Pipe Fittings Ltd, established in Stockport (United Kingdom),
Dafina Kereskedelmi és Szolgáltató Kft., established in Budapest (Hungary),
Gebo Armaturen GmbH, established in Schwelm (Germany),
Geniki emporiou kai viomichanias AE, established in Asprópyrgos (Greece),
GT Comis SpA, established in Cento (Italy),
Rapidrop Global Ltd, established in Peterborough (United Kingdom),
Romstal Imex SRL, established in Bucharest (Romania),
Site Supplies and Services Ltd, established in Hitchin (United Kingdom),
TE Fittings GmbH, established in Hattingen (Germany),
Vocla BV, established in Diepenbeek (Belgium).
*      Language of the case: English.
1      The list of the other applicants is annexed only to the version sent to the parties.