JUDGMENT OF THE GENERAL COURT (Ninth Chamber)
18 May 2022 (*)
(Dumping – Extension of the anti-dumping duty imposed on imports of certain iron or steel fasteners originating in China to imports consigned from Malaysia – Compliance with a judgment of the Court of Justice – Article 266 TFEU – Re-imposition of a definitive anti-dumping duty – Non-retroactivity – Effective judicial protection – Principle of good administration – Competence of the author of the act)
In Case T‑479/20,
Eurobolt BV, established in ’s-Heerenberg (Netherlands),
Fabory Nederland BV, established in Tilburg (Netherlands),
ASF Fischer BV, established in Lelystad (Netherlands),
Stafa Group BV, established in Maarheeze (Netherlands),
represented by S. De Knop, B. Natens and A. Willems, lawyers,
applicants,
v
European Commission, represented by T. Maxian Rusche and G. Luengo, acting as Agents,
defendant,
APPLICATION based on Article 263 TFEU seeking annulment of Commission Implementing Regulation (EU) 2020/611 of 30 April 2020 re-imposing the definitive anti-dumping duty imposed by Council Regulation (EC) No 91/2009 on imports of certain iron or steel fasteners originating in the People’s Republic of China to imports of certain iron or steel fasteners consigned from Malaysia, whether declared as originating in Malaysia or not (OJ 2020 L 141, p. 1),
THE GENERAL COURT (Ninth Chamber),
composed of M.J. Costeira, President, T. Perišin (Rapporteur) and P. Zilgalvis, Judges,
Registrar: I. Kurme, Administrator,
having regard to the written part of the procedure and further to the hearing on 19 January 2022,
gives the following
Judgment
Background to the dispute
The applicants
1        The applicants, Eurobolt BV, Fabory Nederland BV, ASF Fischer BV and Stafa Group BV, are companies based in the Netherlands which import and sell iron and steel fasteners.
The initial regulation imposing an anti-dumping duty and the implementing regulation extending that anti-dumping duty
2        By Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994) (OJ 1994 L 336, p. 1), the Council of the European Union approved the Agreement establishing the World Trade Organization (WTO) signed in Marrakesh on 15 April 1994 and the agreements in Annexes 1 to 3 of that agreement (‘the WTO agreements’), including those in the General Agreement on Tariffs and Trade of 1994 (OJ 1994 L 336, p. 11; ‘GATT 1994’) and the Agreement on the Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (OJ 1994 L 336, p. 103, ‘the WTO anti-dumping agreement’). Accordingly, the European Union has been a member of the WTO since 1 January 1995. The EU Member States are also WTO members in their own right.
3        In 2009, the Council found that fasteners sold on the EU market had been dumped by Chinese exporting producers. Thus, on 26 January 2009, it adopted Regulation (EC) No 91/2009 imposing a definitive anti-dumping duty on imports of certain iron or steel fasteners originating in the People’s Republic of China (OJ 2009 L 29, p. 1).
4        Regulation No 91/2009 was based on 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), as amended by Council Regulation (EC) No 461/2004 of 8 March 2004 (OJ 2004 L 77, p. 12) (replaced by 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), itself replaced by Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on protection against dumped imports from countries not members of the European Union (OJ 2016 L 176, p. 21; ‘the basic regulation’)).
5        Following the imposition of the definitive anti-dumping duty, the European Commission received evidence that those measures were being circumvented through transhipping via Malaysia. It thus adopted, on 27 October 2010, Regulation (EU) No 966/2010 initiating an investigation concerning the possible circumvention of anti-dumping measures imposed by Regulation No 91/2009 and making such imports subject to registration (OJ 2010 L 282, p. 29). As is apparent from recital 18 and Article 2 of that regulation, the customs authorities were directed to take the appropriate steps to register the imports into the European Union in accordance with Article 13(3) and Article 14(5) of Regulation No 1225/2009 in order to ensure that, should the investigation result in findings of circumvention, anti-dumping duties of an appropriate amount could be levied retroactively from the date of registration of such imports consigned from Malaysia.
6        On 18 July 2011, the Council adopted, pursuant to Article 13 of Regulation No 1225/2009, Implementing Regulation (EU) No 723/2011 extending the definitive anti-dumping duty imposed by Regulation No 91/2009 on imports of certain iron or steel fasteners originating in the People’s Republic of China to imports of certain iron or steel fasteners consigned from Malaysia, whether declared as originating in Malaysia or not (OJ 2011 L 194, p. 6). By that regulation, the anti-dumping duties were extended to fasteners consigned from Malaysia (‘the anti-circumvention duties’).
7        On 28 July 2011, the Dispute Settlement Body of the WTO (‘DSB’) adopted an Appellate Body report and a special group report as modified by the Appellate Body report on the case ‘European Communities – Definitive Anti-Dumping Measures on Certain Iron or Steel Fasteners from China’ (WT/DS 397; ‘the DSB’s decision of 28 July 2011’). In those reports, it was found, inter alia, that the European Union had acted in a manner inconsistent with certain provisions of the WTO’s anti-dumping agreement.
8        Following the DSB’s decision of 28 July 2011, the Council adopted Implementing Regulation (EU) No 924/2012, on 4 October 2012, amending Regulation No 91/2009 (OJ 2012 L 275, p. 1), by which it, inter alia, reduced the anti-dumping duty which was provided for in the latter regulation.
9        The Commission maintained those measures for an additional five-year period by Implementing Regulation (EU) 2015/519 of 26 March 2015 imposing a definitive anti-dumping duty on imports of certain iron or steel fasteners originating in the People’s Republic of China, as extended to imports of certain iron or steel fasteners consigned from Malaysia, whether declared as originating in Malaysia or not, following an expiry review pursuant to Article 11(2) of Regulation No 1225/2009 (OJ 2015 L 82, p. 78).
10      China, however, considered that the measure taken by the European Union through Implementing Regulation No 924/2012 to implement the DSB’s decision of 28 July 2011 was inconsistent with various provisions of the WTO’s anti-dumping agreement and the GATT 1994.
11      By a decision of 12 February 2016, the DSB adopted new reports finding the measures taken by the European Union by means of Implementing Regulation No 924/2012 to be inconsistent with certain provisions of the WTO’s anti-dumping agreement (‘the DSB’s decision of 12 February 2016’).
12      Following the DSB’s decision of 12 February 2016, on 26 February 2016 the Commission adopted Implementing Regulation (EU) 2016/278 repealing the definitive anti-dumping duty imposed on imports of certain iron or steel fasteners originating in the People’s Republic of China, as extended to imports of certain iron or steel fasteners consigned from Malaysia, whether declared as originating in Malaysia or not (OJ 2016 L 52, p. 24).
The subsequent dispute
13      The applicants had imported fasteners from Malaysia during the period of the anti-circumvention investigation conducted by the Commission. The Commission had registered those imports so as to be able to impose duties on them once the investigation had confirmed the circumvention.
14      Between January 2012 and October 2013, the Netherlands customs authorities issued collection notices for the anti-dumping duties owed by the applicants on imports of fasteners pursuant to Implementing Regulation No 723/2011. Within the time limit stipulated under Netherlands law, the applicants challenged those collection notices in accordance with Article 243 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1), as amended by 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).
15      On 17 November 2017, the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) made a request to the Court of Justice for a preliminary ruling concerning the validity of Implementing Regulation No 723/2011, in the context of the national appeal on a point of law lodged by Eurobolt against the anti-dumping duties paid on the basis of that implementing regulation.
16      In the judgment of 3 July 2019, Eurobolt (C‑644/17, EU:C:2019:555), The Court of Justice held that that implementing regulation was vitiated by an infringement of an essential procedural requirement and that, therefore, it was invalid inasmuch as it had been adopted in breach of Article 15(2) of Regulation No 1225/2009.
17      In particular, the Court observed that the adoption, under Regulation No 1225/2009, of extended anti-dumping measures, such as those imposed under Implementing Regulation No 723/2011, was to be done on the basis of a procedure, specifically, an investigation, at certain stages of which the Member States, represented within the Advisory Committee, had to be consulted. The requirement to provide the Advisory Committee with all relevant information no later than 10 working days before the meeting of that committee, as laid down in Article 15(2) of Regulation No 1225/2009, constitutes an essential procedural requirement governing the proper conduct of proceedings, breach of which renders the act concerned void. The observations submitted by Eurobolt constituted relevant information for the purposes of Article 15(2) of Regulation No 1225/2009. However, those observations had been communicated to the Member States only two days before the meeting of the Advisory Committee. The Court therefore concluded that Implementing Regulation No 723/2011 was invalid inasmuch as it was adopted in breach of Article 15(2) of Regulation No 1225/2009 (judgment of 3 July 2019, Eurobolt, C‑644/17, EU:C:2019:555, paragraphs 36, 42, 43, 45 and 51).
Implementation of the judgment of 3 July 2019, Eurobolt (C‑644/17, EU:C:2019:555), and adoption of the contested regulation
18      Following the judgment of 3 July 2019, Eurobolt (C‑644/17, EU:C:2019:555), the Commission reopened the anti-circumvention investigation in order to correct the procedural illegality identified by the Court. To that end, it adopted Implementing Regulation (EU) 2019/1374 of 26 August 2019 reopening the investigation following the judgment of 3 July 2019, in Case C‑644/17, Eurobolt, with regard to Council Implementing Regulation No 723/2011 (OJ 2019 L 223, p. 1).
19      It is apparent from recital 17 of Implementing Regulation 2019/1374 that the reopening of the anti-circumvention investigation was limited to ensuring compliance with the judgment of 3 July 2019, Eurobolt (C‑644/17, EU:C:2019:555), namely to guaranteeing observance of all the procedural requirements under the Advisory Committee procedure laid down in Article 15(2) of Regulation No 1225/2009. That procedure has since been replaced by the Examination Committee procedure provided for in Article 5 of Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers (OJ 2011 L 55, p. 13), which provides that the applicable statutory time limit for relevant information to reach the committee is no later than 14 days before the meeting of that committee.
20      The Examination Committee received Eurobolt’s observations at least 14 days before its meeting. The comments made after disclosure to the parties did not give rise to a change of the Commission’s conclusion, namely that the original measures should be re-imposed on imports of the product concerned consigned from Malaysia, whether declared as originating in Malaysia or not.
21      Accordingly, on 30 April 2020, the Commission adopted Implementing Regulation (EU) 2020/611 of 30 April 2020 re-imposing the definitive anti-dumping duty imposed by Regulation No 91/2009 on imports of certain iron or steel fasteners originating in the People’s Republic of China to imports of certain iron or steel fasteners consigned from Malaysia, whether declared as originating in Malaysia or not (OJ 2020 L 141, p. 1; ‘the contested regulation’). Article 1 of that regulation re-imposes anti-dumping measures on the imports of fasteners consigned from Malaysia during the period of application of Implementing Regulation No 723/2011. Article 2 of the contested regulation provides that the anti-dumping duties paid on the basis of Implementing Regulation No 723/2011 are not to be reimbursed and that any reimbursements that took place following the judgment of 3 July 2019, Eurobolt (C‑644/17, EU:C:2019:555), are to be recovered by the authorities which made those reimbursements.
Procedure and forms of order sought
22      By application lodged at the General Court Registry on 28 July 2020, the applicants brought an action for annulment of the contested regulation.
23      Acting on a proposal from the Judge-Rapporteur, the General Court (Ninth Chamber) decided to open the oral part of the procedure.
24      The parties presented oral argument and replied to the questions put by the Court at the hearing on 19 January 2022.
25      The applicants claim that the Court should:
–        annul the contested regulation;
–        order the Commission to pay the costs.
26      The Commission contends that the Court should:
–        dismiss the action;
–        order the applicants to pay the costs.
Law
27      At the outset, it must be stated that the Commission expressed doubts as to the admissibility of the action on the basis of the second limb of the sentence in the fourth paragraph of Article 263 TFEU, arguing that the contested regulation is not of individual concern to the applicants.
28      By contrast, the Commission maintains that the action is admissible regarding Fabory Nederland, ASF Fischer and Stafa Groups on the basis of the third limb of the sentence in the fourth paragraph of Article 263 TFEU, since an implementing measure is not required in relation to them.
29      Nonetheless, the Commission contends that the action is inadmissible on the basis of the third limb of the sentence in the fourth paragraph of Article 263 TFEU in relation to Eurobolt, because the implementation of the contested regulation in its regard requires implementing measures in the form of a new notification of the customs debt, following the annulment of the notifications of the customs debt issued to Eurobolt by the Hoge Raad der Nederlanden (Supreme Court of the Netherlands).
30      It must be borne in mind that the EU Courts are entitled to assess, according to the circumstances of each case, whether the proper administration of justice warrants the dismissal of the action on the merits without first ruling on its admissibility (see, to that effect, judgment of 26 February 2002, Council v Boehringer, C‑23/00 P, EU:C:2002:118, paragraphs 51 and 52).
31      In the circumstances of the present case, the Court considers that, in the interests of procedural economy, it is necessary to examine at the outset the applicants’ pleas without first ruling on the admissibility of the present action for annulment, since the action is, in any event and for the reasons set out below, unfounded.
32      In support of their action, the applicants raise three pleas in law. The first plea alleges that, by retroactively remedying an infringement of an essential procedural requirement, the contested regulation infringes Articles 266 and 264 TFEU and is in breach of the principle of effective judicial protection. The second plea in law alleges that, since it has no valid legal basis, the contested regulation is contrary to Article 13(1) of the basic regulation, Article 5(1) and (2) TEU and the principle of good administration. The third plea of law alleges that, by prohibiting repayment and ordering collection of the repaid anti-dumping duties, the contested regulation infringes Article 5(1) and (2) TEU.
The first plea in law, alleging infringement of Articles 266 and 264 TFEU and breach of the principle of effective judicial protection
33      By their first plea in law, the applicants claim that, by retroactively remedying the infringement of an essential procedural requirement, the contested regulation infringes Articles 266 and 264 TFEU and is in breach of the principle of effective judicial protection.
34      The first plea in law is divided into five parts. The first part alleges infringement of the obligation to repay anti-dumping duties that are not lawfully owed and breach of the principle of non-retroactivity. The second part alleges infringement of the obligation not to remedy retroactively infringements of essential procedural requirements in anti-dumping cases. The third part alleges infringement of the obligation not to remedy retroactively the infringement of the essential procedural requirement at issue. The fourth part alleges infringement of Article 264 TFEU. The fifth part alleges breach of the principle of effective judicial protection.
The first part, alleging infringement of the obligation to repay anti-dumping duties that are not lawfully owed and breach of the principle of non-retroactivity
35      By the first part of the first plea in law, the applicants argue that, in accordance with settled case-law, when the Court of Justice declares that a regulation imposing anti-dumping duties is invalid, the duties paid were never legally owed and must be repaid. They claim that, in accordance with Article 266 TFEU, the Commission must thus ensure that the anti-dumping duties at issue are repaid, and may not take any actions that render such repayment impossible or unduly difficult. The contested regulation deprives that principle of all meaning.
36      The applicants submit that, according to case-law, anti-dumping measures are protective and preventive measures that are imposed as a means of forestalling future injury. They are not a penalty for earlier conduct intended to make good the injury suffered by the EU industry. Retroactive measures can no longer protect from or prevent injury; the invalid measures have already served that purpose during the six years that they were in force, regardless of their validity. Thus, the applicants state that, as compared with its longstanding policy of repayment, the Commission’s new policy of retroactive imposition of anti-dumping duties merely punishes EU importers for successfully challenging the Commission’s findings.
37      The applicants add that 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 substantiate the Commission’s new policy adopted in the contested regulation, since neither of those two judgments address the compatibility with Article 266 TFEU of a regulation which, like the contested regulation, definitively prohibits repayment of anti-dumping duties paid on the basis of an invalid regulation and retroactively imposes new anti-dumping measures.
38      The applicants submit that their disagreement does not concern whether the Commission could, in principle, reopen the anti-dumping investigation and impose new anti-dumping measures, but whether retroactively imposing new anti-dumping measures in the contested regulation is indeed consistent with Article 266 TFEU.
39      The Commission disputes the applicants’ arguments.
40      As a preliminary point, it should be borne in mind that, under Article 266 TFEU, the EU institution, body, office or entity whose act has been declared void by the Court of Justice or the General Court is required to take the necessary measures to comply with the judgment of that court.
41      That obligation to act applies, by analogy, in a situation where a judgment of the Court of Justice has declared an EU act to be invalid, since the legal effect of that judgment is to require the competent institution, body, office or entity to take the necessary measures to remedy the illegality identified by the Court of Justice (see judgment of 19 June 2019, C & J Clark International, C‑612/16, not published, EU:C:2019:508, paragraph 38 and the case-law cited).
42      Admittedly, as maintained by the applicants, when the Court declares invalid a regulation imposing anti-dumping duties, such duties are to be considered as never having been lawfully owed within the meaning of Article 236 of Regulation No 2913/92 and, in principle, are required to be repaid by the national customs authorities under the conditions set out to that effect (see judgment of 15 March 2018, Deichmann, C‑256/16, EU:C:2018:187, paragraph 62 and the case-law cited).
43      However, the exact scope of a declaration of invalidity by the Court in a judgment and, consequently, of the obligations that flow from it must be determined in each specific case by taking into account not only the operative part of that judgment, but also the grounds that constitute its essential basis (see judgment of 15 March 2018, Deichmann, C‑256/16, EU:C:2018:187, paragraph 63 and the case-law cited).
44      In those circumstances, it is necessary to determine, in the present case, the exact scope of the declaration of invalidity contained in the operative part of the judgment of 3 July 2019, Eurobolt (C‑644/17, EU:C:2019:555), in the light of the grounds of that judgment that constitute its essential basis.
45      It is apparent from paragraph 51 of the judgment of 3 July 2019, Eurobolt (C‑644/17, EU:C:2019:555), that the invalidity of Implementing Regulation No 723/2011 was the consequence of an infringement of a procedural requirement. More specifically, the Court of Justice held that requirement to provide the Advisory Committee with all relevant information no later than 10 working days before the meeting of that committee, as laid down in Article 15(2) of Regulation No 1225/2009, constitutes an essential procedural requirement governing the proper conduct of proceedings, infringement of which renders Implementing Regulation No 723/2011 void.
46      Thus, the illegality established concerned only compliance with the procedural requirements stemming from the Advisory Committee procedure laid down in Article 15(2) of Regulation No 1225/2009. By contrast, the judgment of 3 July 2019, Eurobolt (C‑644/17, EU:C:2019:555), does not affect the measures adopted before that procedure, in particular Regulation No 966/2010 initiating the anti-circumvention investigation and ordering the registration of imports consigned from Malaysia.
47      It is clear from recital 18 of the contested regulation that an infringement of Article 15(2) of Regulation No 1225/2009 does not vitiate the entire proceeding, as the illegality identified by the Court did not concern the substantive findings on the existence of circumvention. The infringement can therefore be remedied by reopening the anti-circumvention investigation at the point at which the illegality occurred.
48      Therefore, the Commission could implement validly the judgment of 3 July 2019, Eurobolt (C‑644/17, EU:C:2019:555), first, by reopening the anti-dumping proceeding in order to correct the illegality, second, by complying with the detailed rules and procedural time limits of the Advisory Committee procedure laid down in Article 5 of Regulation No 182/2011, now applicable subsequent to the repeal of the Advisory Committee procedure laid down in Article 15(2) of Regulation No 1225/2009 (see paragraph 19 above) and, third, by concluding, after taking account of the comments made by the interested parties, that the original measures had to be re-imposed on imports of the product concerned consigned from Malaysia, whether declared as originating in Malaysia or not.
49      Thus, by correcting a procedural irregularity and confirming the findings of the investigation that were not disputed by the judgment of 3 July 2019, Eurobolt (C‑644/17, EU:C:2019:555), the Commission fulfilled its obligation to take the measures necessary to comply with that judgment pursuant to Article 266 TFEU.
50      As regards the principle of non-retroactivity, it must be observed that that principle was enshrined, in the area of anti-dumping measures, in the rule initially laid down in Article 10(1) of Regulation No 384/96 and subsequently reproduced, in the same terms, in Article 10(1) of Regulation No 1225/2009, then in Article 10(1) of the basic regulation (see, to that effect, judgment of 9 June 2021, Roland v Commission, T‑132/18, not published, EU:T:2021:329, paragraph 94 and the case-law cited).
51      It should also be specified that in the judgments of 15 March 2018, Deichmann (C‑256/16, EU:C:2018:187, paragraphs 73, 74 and 76), and of 19 June 2019, C & J Clark International (C‑612/16, not published, EU:C:2019:508, paragraphs 54 and 55), the Court of Justice approved the resumption of the proceeding leading to the adoption of a regulation imposing an anti-dumping duty which had been declared invalid, with a view to re-imposing anti-dumping duties that had expired, on the condition that the substantive rules in force at the time of the facts referred to in that regulation were applied (see judgment of 9 June 2021, Roland v Commission, T‑132/18, not published, EU:T:2021:329, paragraph 95 and the case-law cited).
52      In the present case, the alleged infringement of the principle of non-retroactivity by the contested regulation must – in view of the case-law of the Court of Justice relating to the period covered by the facts referred to in the regulation declared invalid – be assessed in the light of Article 10(1) of Regulation No 1225/2009 (see, to that effect, judgment of 9 June 2021, Roland v Commission, T‑132/18, not published, EU:T:2021:329, paragraph 96 and the case-law cited).
53      According to case-law, Article 10(1) of Regulation No 1225/2009 precludes the application of anti-dumping duties to products released for free circulation prior to the date on which the regulations declared invalid entered into force (see, to that effect, judgment of 15 March 2018, Deichmann, C‑256/16, EU:C:2018:187, paragraph 77).
54      By contrast, Article 10(1) of Regulation No 1225/2009 does not preclude such a resumption of the proceeding in a case in which the anti-dumping duties concerned have expired, provided that such duties are re-imposed in respect of their initial application period (see, to that effect, judgment of 15 March 2018, Deichmann, C‑256/16, EU:C:2018:187, paragraph 78).
55      Therefore, contrary to what is claimed by the applicants, the principle of non-retroactivity, as enshrined in Article 10(1) of Regulation No 1225/2009, does not preclude an act such as the contested regulation from re-imposing anti-dumping duties on imports that were made during the period of application of the regulation declared invalid (see, to that effect, judgment of 9 June 2021, Roland v Commission, T‑132/18, not published, EU:T:2021:329, paragraph 99 and the case-law cited).
56      More specifically, retroactivity means that a subsequent rule applies to a legal position that has previously been consolidated. This is not the case here, since the applicable rules are precisely those that were in force when the relevant events occurred (see, to that effect, judgment of 9 June 2021, Roland v Commission, T‑132/18, not published, EU:T:2021:329, paragraph 100).
57      Thus, the resumption of the administrative procedure and the re-imposition of anti-dumping duties on imports that occurred during the period of application of the regulation declared invalid cannot be regarded as contrary to the rule of non-retroactivity (see, to that effect, judgment of 15 March 2018, Deichmann, C‑256/16, EU:C:2018:187, paragraph 79).
58      Since the contested regulation does not apply retroactively to a situation which has become definitive before its entry into force, the principle of legal certainty cannot be infringed either (see judgment of 9 June 2021, Roland v Commission, T‑132/18, not published, EU:T:2021:329, paragraph 101 and the case-law cited).
59      Accordingly, the Commission was, following the judgment of 3 July 2019, Eurobolt (C‑644/17, EU:C:2019:555), fully entitled, as set out in recitals 21 and 29 of the contested decision, to correct the procedural irregularity and re-impose anti-circumvention duties in respect of their initial application period, that is, between 27 July 2011 and 27 February 2016, on the basis of the undisputed findings of the anti-circumvention investigation.
60      In addition, having regard to the fact that the illegality identified by the Court of Justice in the judgment of 3 July 2019, Eurobolt (C‑644/17, EU:C:2019:555), concerned only compliance with the procedural requirements stemming from the Advisory Committee procedure laid down in Article 15(2) of Regulation No 1225/2009, that judgment does not affect earlier measures adopted during the anti-dumping proceeding (see paragraph 46 above).
61      Accordingly, and by analogy with the ruling of the Court in the judgment of 9 June 2021, Roland v Commission (T‑132/18, not published, EU:T:2021:329, paragraph 104), the principle of non-retroactivity, as enshrined in Article 10(1) of Regulation No 1225/2009, did not preclude the resumption of the anti-dumping proceeding concerning the products at issue and the adoption of the contested regulation.
62      Accordingly, the first part of the first plea must be rejected.
The second part, alleging infringement of the obligation not to remedy retroactively infringements of essential procedural requirements in anti-dumping cases
63      By the second part of the first plea in law, the applicants argue that the infringement of an essential procedural requirement in an anti-dumping case vitiates the entire proceeding, because essential procedural requirements are of particular importance in anti-dumping cases. Therefore, according to the applicants, it is not possible to remedy retroactively infringements of essential procedural requirements in anti-dumping cases and, as a result, the contested regulation is contrary to Article 266 TFEU.
64      The applicants stress that any infringement of an essential procedural requirement is so serious that it justifies the annulment or invalidation of the regulation so vitiated, regardless of the potential outcome for the procedure concerned. Observance of essential procedural requirements is thus, even more than respect for the rights of the defence, inherently crucial in anti-dumping investigations and of systemic importance to the rule of law and the balance of powers.
65      They add that the Court of Justice has never recognised that the Commission could remedy retroactively an infringement of an essential procedural requirement in an anti-dumping investigation.
66      The Commission disputes the applicants’ arguments.
67      It should be borne in mind that, pursuant to Article 266 TFEU, the institution which adopted the annulled act is required to take the necessary measures to comply with the judgment annulling that act.
68      In order to comply with a judgment annulling an act and to implement it fully, the institutions are 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 institutions concerned must take into account when replacing the annulled act (see judgment of 12 November 1998, Spain v Commission, C‑415/96, EU:C:1998:533, paragraph 31 and the case-law cited).
69      The procedure for replacing such a measure may thus be resumed at the very point at which the illegality occurred (see judgment of 3 October 2000,
Industrie des poudres sphériques v Council, C‑458/98 P, EU:C:2000:531, paragraph 82 and the case-law cited).
70      It is settled case-law that annulment of an EU act does not necessary affect the preparatory acts. The annulment of an act concluding an administrative procedure which comprises several stages does not necessarily entail the annulment of the entire procedure prior to the adoption of the contested act, regardless of the grounds, procedural or substantive, of the judgment pronouncing the annulment of that act (see judgment of 9 July 2008, Alitalia v Commission, T‑301/01, EU:T:2008:262, paragraph 100 and the case-law cited).
71      Moreover, where a judgment of the Court of Justice invalidates an anti-dumping regulation, the institution implementing that judgment has the option of resuming the proceeding at the origin of that regulation. Furthermore, except where the irregularity found has vitiated the entire proceeding, the institution has the option, in order to adopt an act intended to replace the act that has been declared invalid, to resume that proceeding at the stage when the irregularity occurred (judgments of 15 March 2018, Deichmann, C‑256/16, EU:C:2018:187, paragraphs 73 and 74, and of 19 June 2019, C & J Clark International, C‑612/16, not published, EU:C:2019:508, paragraph 43).
72      It must be observed that the case-law cited in paragraphs 68 to 71 above does not render the possibility of resuming the entire proceeding prior to the adoption of an act intended to replace another subject to the condition that the latter has not been annulled on grounds of infringement of essential procedural requirements.
73      In that connection, it must be borne in mind that the concept of essential procedural requirements includes rules intended to ensure that the measures concerned are formulated with all due care and prudence (judgment of 21 March 1955, Netherlands v High Authority, 6/54, EU:C:1955:5, p. 103).
74      Regarding whether the infringement of an essential procedural requirement vitiates the entire proceeding or merely the stage at which the illegality occurred, it must be borne in mind, as maintained by the Commission, that, in its judgment of 13 November 1990, Fedesa and Others (C‑331/88, EU:C:1990:391, paragraphs 33 and 34), the Court of Justice rejected the argument that infringement of an essential procedural requirement renders void all stages of the legislative procedure. Accordingly, it concluded that, where the directive at issue had been annulled on account of a procedural defect that concerned solely the manner in which it was finally adopted by the Council, the annulment did not affect the preparatory acts of the other institutions, including the initial proposal of the Commission and the opinion of the European Parliament.
75      In the present case, it must be stated that, in its judgment of 3 July 2019, Eurobolt (C‑644/17, EU:C:2019:555, paragraph 51), the Court of Justice held that the requirement to provide the Advisory Committee with all relevant information no later than 10 working days before the meeting of that committee, as laid down in Article 15(2) of Regulation No 1225/2009, constitutes an essential procedural requirement governing the proper conduct of proceedings, infringement of which renders Implementing Regulation No 723/2011 void.
76      As a result, as is apparent from paragraph 46 above, the illegality found by the Court concerned only compliance with the procedural requirements stemming from the Advisory Committee procedure laid down in Article 15(2) of Regulation No 1225/2009. By contrast, the judgment of 3 July 2019, Eurobolt (C‑644/17, EU:C:2019:555), does not affect the measures adopted before that procedure, in particular Regulation No 966/2010 initiating the anti-circumvention investigation and ordering the registration of imports consigned from Malaysia.
77      Therefore, as is apparent from paragraphs 48 and 49 above, by reopening the anti-dumping investigation in order to correct the irregularity committed, complying with the detailed rules and time limits of the Advisory Committee procedure and concluding, after having taken account of the comments made by the interested parties, that the original measures had to be re-imposed, the Commission fulfilled its obligation to take the measures required in order to implement the judgment of 3 July 2019, Eurobolt (C‑644/17, EU:C:2019:555), pursuant to Article 266 TFEU.
78      Consequently, the second part of the first plea must be rejected.
The third part, alleging infringement of the obligation not to remedy retroactively the infringement of the essential procedural requirement at issue
79      By the third part of the first plea in law, the applicants point out that, according to case-law, the infringement of an essential procedural requirement can be remedied retroactively only if this is required to achieve an objective in the general interest, in order to avoid a legal vacuum that would lead to an imbalance in the situation of various economic operators.
80      However, in the present case, the applicants submit that the Commission has neither asserted nor established that there is a general interest in re-imposing retroactively the anti-dumping measures invalidated in the judgment of 3 July 2019, Eurobolt (C‑644/17, EU:C:2019:555). They add that, even if there were such a general interest, the Commission did not establish that the contested regulation was necessary to protect that interest, since the anti-dumping duties imposed by the effect of Implementing Regulation No 723/2011 had already exerted their protective effect on the fasteners industry. Furthermore, the applicants argue that the judgment of 3 July 2019, Eurobolt (C‑644/17, EU:C:2019:555), had not created, in any way, a legal vacuum, because the Commission should have allowed the customs authorities to repay the anti-dumping duties unduly paid on the basis of the invalid Implementing Regulation No 723/2011.
81      In their reply, the applicants claim that the temporal relationship between the registration of imports and the imposition of anti-dumping duties is governed by Article 10(4) of the basic regulation, which contains an explicit exception to the rule in Article 10(1) of that regulation. Under the latter provision, which was 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), the Commission must conduct an anti-dumping investigation before it can impose anti-dumping duties. In the applicants’ view, those judgments concern only that very specific aspect of retroactivity.
82      The Commission disputes the applicants’ arguments.
83      As a preliminary point, it should be noted that, by the third part of the first plea, the applicants seek to challenge the retroactive remedy of the infringement of the essential procedural requirement at issue in so far as, according to the applicants, this was not required to achieve any objective in the general interest.
84      In that connection, it is appropriate to refer, first of all, to paragraphs 50 to 61 above containing the finding that, by adopting the contested regulation, the Commission was not in breach of the principle of non-retroactivity.
85      Moreover, it must be observed that, according to settled case-law cited by the parties to the present dispute, an act may exceptionally be recognised as having retroactive effect where the purpose to be achieved so demands and the legitimate expectations of those concerned are duly respected (see, to that effect, judgments of 30 September 1982, Amylum v Council, 108/81, EU:C:1982:322, paragraph 4; of 30 September 1982, Roquette Frères v Council, 110/81, EU:C:1982:323, paragraph 5 and the case-law cited; and of 13 November 1990, Fedesa and Others, C‑331/88, EU:C:1990:391, paragraph 45).
86      As regards the principle of protection of legitimate expectations, it should be noted that, according to settled case-law, the right to rely on that principle presupposes that precise, unconditional and consistent assurances originating from authorised, reliable sources have been given to the person concerned by the EU institutions (see judgment of 9 June 2021, Roland v Commission, T‑132/18, not published, EU:T:2021:329, paragraph 107 and the case-law cited).
87      In the present case, the illegality established in the judgment of 3 July 2019, Eurobolt (C‑644/17, EU:C:2019:555), concerned only compliance with the procedural requirements stemming from the Advisory Committee procedure laid down in Article 15(2) of Regulation No 1225/2009. Accordingly, that illegality cannot give rise to a legitimate expectation that the imports that took place during the application period in respect of which the regulation was declared invalid can no longer be subject to re-imposed anti-dumping duties. On the contrary, that judgment presupposed that the Commission would reopen the anti-dumping investigation in order to correct the irregularity committed, complying with the detailed rules and time limits of the now applicable Examination Committee procedure laid down in Article 5 of Regulation No 182/2011 (see paragraph 19 above) (see, to that effect, judgment of 9 June 2021, Roland v Commission, T‑132/18, not published, EU:T:2021:329, paragraph 108).
88      Furthermore, as regards the applicants’ claim that the Commission’s administrative practice confirms that the annulment of regulations imposing anti-dumping duties entails repayment of those duties, it must be pointed out that the lawfulness of a regulation such as the contested regulation must be assessed in the light of legal rules, in particular the provisions of the basic regulation, not on the basis of alleged previous decision-making practice (see judgment of 9 June 2021, Roland v Commission, T‑132/18, not published, EU:T:2021:329, paragraph 110 and the case-law cited).
89      Lastly, it is settled case-law that, where the institutions enjoy, as they do in the area of anti-dumping measures, a margin of discretion in the choice of the means needed to achieve their policies, economic operators are unable to claim that they have a legitimate expectation that the means initially chosen will continue to be employed, since those means may be altered by the institutions in the exercise of their discretionary power (see judgment of 9 June 2021, Roland v Commission, T‑132/18, not published, EU:T:2021:329, paragraph 111 and the case-law cited).
90      Accordingly, neither the principle of the protection of legitimate expectations nor the Commission’s administrative practice precluded the adoption of the contested regulation.
91      Accordingly, even assuming that the contested regulation applies retroactively, this would, exceptionally, be justified in the light of the case-law cited in paragraph 85 above, in view of the fact that, first, the principle of the protection of legitimate expectations was duly complied with (see paragraphs 86 to 90 above) and, second, the implementation of the judgment of 3 July 2019, Eurobolt (C‑644/17, EU:C:2019:555), required that that regulation be adopted (see paragraphs 45 to 49 above) (see, to that effect, judgment of 9 June 2021, Roland v Commission, T‑132/18, not published, EU:T:2021:329, paragraph 106 and the case-law cited).
92      Consequently, the third part of the first plea must be rejected.
The fourth part, alleging infringement of Article 264 TFEU
93      By the fourth part of the first plea in law, the applicants claim that, in the contested regulation, the Commission illegally usurped the competences conferred on the Court of Justice pursuant to Article 264 TFEU.
94      According to the applicants, by adopting the contested regulation, the Commission limited, in practice, the temporal effect of the judgment of 3 July 2019, Eurobolt (C‑644/17, EU:C:2019:555), and usurped the competence of the Court by retroactively imposing anti-dumping duties. However, such power lies exclusively with the Court under Article 264 TFEU. The Commission should have requested the Court to limit the temporal effect of that judgment.
95      The Commission contests the applicants’ arguments.
96      It is apparent from case-law that while a legal consequence of a finding that an act of the European Union is invalid is that the institution that adopted the act must take the necessary measures to remedy the illegality established – the obligation set out in Article 266 TFEU in the event of annulment being applicable by analogy – that institution does nevertheless have a wide discretion in its choice of measures, it being understood that such measures must be compatible with the operative part of the judgment in question and the grounds that constitute its essential basis (see judgment of 15 March 2018, Deichmann, C‑256/16, EU:C:2018:187, paragraph 87 and the case-law cited).
97      Taking into account that wide discretion, only the manifestly inappropriate nature of those measures, having regard to the objective pursued, may affect their lawfulness (see judgment of 15 March 2018, Deichmann, C‑256/16, EU:C:2018:187, paragraph 88 and the case-law cited).
98      In the present case, it is apparent from paragraphs 45 to 49 and 75 to 77 above that the applicants have not established that the contested regulation adopted by the Commission was incompatible with the operative part and grounds of the judgment of 3 July 2019, Eurobolt (C‑644/17, EU:C:2019:555).
99      In that connection, it is appropriate to point out that, as the Commission contends, the fact that the Court of Justice did not explicitly set any temporal limits, as it is entitled to do pursuant to Article 264 TFEU, does not necessarily mean that the Commission was prevented from re-imposing the proper level of anti-dumping duties legitimately owed during the period of application of the original measures. Article 264 TFEU does not preclude the institution concerned from adopting measures which can have the same effects as those of the decision that the Court of Justice would take if it were to apply that article.
100    Accordingly, the fourth part of the first plea must be rejected.
The fifth part, alleging infringement of the principle of effective judicial protection
101    By the fifth part of the first plea in law, the applicants claim that the contested regulation infringes the principle of effective judicial protection, which requires that judgments of the Court of Justice offer effective redress.
102    In the applicants’ view, the contested regulation deprives of any legal effect the judgment of 3 July 2019, Eurobolt (C‑644/17, EU:C:2019:555), through an illegal construct that permits the Commission to rectify errors retroactively. The applicants submit that the lack of adequate remedy will deter economic operators from bringing legal actions before the courts against the Commission’s acts, especially where those acts are vitiated by the infringement of an essential procedural requirement, since those operators would derive no benefit from any such action and would simply incur additional costs.
103    The applicants submit that the Commission’s new policy renders effective judicial protection illusory because, if the EU courts were to annul the contested regulation, the Commission could correct its errors retroactively once again, as it did after the judgment of 3 July 2019, Eurobolt (C‑644/17, EU:C:2019:555), and that cycle could continue ad infinitum.
104    The Commission disputes the applicants’ arguments.
105    It should be borne in mind that, under the first paragraph of Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’), everyone whose rights and freedoms guaranteed by the law of the European Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in that article.
106    It should be noted that, in so far as the Charter contains rights corresponding to rights guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’), Article 52(3) of the Charter seeks to ensure the necessary consistency between the rights contained in it and the corresponding rights guaranteed by the ECHR, without thereby adversely affecting the autonomy of EU law and that of the Court of Justice of the European Union. According to the explanations on Article 47 of the Charter, the first paragraph of that article is based on Article 13 of the ECHR. The Court must, accordingly, ensure that its interpretation of the first paragraph of Article 47 of the Charter ensures a level of protection which does not disregard that guaranteed by Article 13 of the ECHR, as interpreted by the European Court of Human Rights (judgment of 26 September 2018, Belastingdienst v Toeslagen (Suspensory effect of the appeal), C‑175/17, EU:C:2018:776, paragraph 35).
107    According to the case-law of the European Court of Human Rights, the right to an effective remedy before a court must make it possible for persons concerned to rely on the rights and freedoms enshrined in the ECHR, although that right imposes on States an obligation the scope of which varies depending on the nature of the applicant’s complaint or the nature of the right relied on and the effectiveness of a remedy does not depend on the certainty of a favourable outcome for the applicant (ECtHR, 26 October 2000, Hassan and Tchaouch v. Bulgaria, CE:ECHR:2000:1026JUD003098596, § 98; 14 March 2002, Paul and Audrey Edwards v. United Kingdom, CE:ECHR:2002:0314JUD004647799, § 96, and 6 March 2001, Hilal v. United Kingdom, CE:ECHR:2001:0306JUD004527699, § 78).
108    In addition, it must be stated, similarly to the Commission, that the right to effective judicial protection in the area of trade defence does not automatically mean that, in every case that an applicant brings an action for annulment, the ultimate result must be that the full amount of anti-dumping duties is to be repaid.
109    In the present case, the illegality established in the judgment of 3 July 2019, Eurobolt (C‑644/17, EU:C:2019:555), concerned only compliance with the procedural requirements stemming from the Advisory Committee procedure laid down in Article 15(2) of Regulation No 1225/2009. The applicants complained that the Commission did not send their comments to the competent committee at least 10 days before that committee was due to meet and feared that the members of that committee were not fully in a position to examine their comments. As observed by the Commission, after the procedure was reopened, that error was remedied and the members of the committee deliberated in full knowledge of all of the observations of the interested parties. The applicants were not entitled to expect fully informed deliberations to result necessarily in the repayment of the duties.
110    As is apparent from paragraph 43 above, the scope and grounds of a declaration of invalidity of an act by the Court of Justice in a judgment should be determined in each specific case. They may not require that the relevant duties are repaid in full and immediately (see, to that effect, judgment of 15 March 2018, Deichmann, C‑256/16, EU:C:2018:187, paragraph 70).
111    In the present case, the infringement found by the Court did not vitiate the entire proceeding. The infringement of the obligation to comply with the Advisory Committee procedure provided for in Article 15(2) of Regulation No 1225/2009 could be remedied and the anti-dumping measures could be re-imposed in accordance with the applicable procedural rules.
112    Thus, by remedying that procedural irregularity, ensuring that the committee’s deliberation took place in full compliance with essential procedural requirements and confirming the findings of the investigation which were not disputed by the judgment of 3 July 2019, Eurobolt (C‑644/17, EU:C:2019:555), the Commission fulfilled its obligation under Article 266 TFEU to take the measures to implement that judgment and had regard to the applicants’ right to effective judicial protection.
113    Accordingly, the fifth part of the first plea must be rejected and, consequently, the first plea must be rejected in its entirety.
The second plea in law, alleging lack of valid legal basis and infringement of the principle of good administration
114    By their second plea in law, the applicants claim that, by imposing anti-dumping measures based on the illegal and repealed Regulation No 91/2009, the contested regulation infringes Article 13(1) of Regulation No 1225/2009 and Article 5(1) and (2) TEU and is in breach of the principle of good administration.
115    First of all, the applicants claim that, under Article 13(1) of Regulation No 1225/2009, anti-dumping duties imposed pursuant to that regulation may be extended to imports from third countries where the measures in force are being circumvented. They rely on case-law according to which the sole purpose of a regulation extending an anti-dumping duty is to ensure the effectiveness of that duty, and that a measure extending a definitive anti-dumping duty is therefore merely ancillary to the initial act establishing that duty. Accordingly, the applicants point out that regulations extending anti-dumping measures cannot exist without the regulation that had initially imposed the anti-dumping measures. Thus, in their view, Regulation No 91/2009 constitutes the legal basis for Implementing Regulation No 723/2011.
116    However, the applicants state that Regulation No 91/2009 infringes both WTO law and EU law. They observe that the Commission had to repeal that regulation because the infringements of WTO law that it contained were so serious that they could not be remedied. According to the applicants, most of the infringements of WTO law established by the DSB are also infringements of EU law. They point out that the Court of Justice has also held that that regulation infringed EU law in the judgment of 5 April 2017, Changshu City Standard Parts Factory and Ningbo Jinding Fastener v Council (C‑376/15 P and C‑377/15 P, EU:C:2017:269).
117    The applicants argue that, by adopting the contested regulation as a merely ancillary act to the illegal and repealed Regulation No 91/2009, the Commission infringed Article 13(1) of Regulation No 1225/2009, which renders the adoption of anti-circumvention measures subject to the existence of anti-dumping measures adopted pursuant to Regulation No 1225/2009, as well as Article 5(1) and (2) TEU, which require a valid legal basis for the Commission to act.
118    Last, the applicants claim that the Commission is in breach of the principle of good administration, since it nevertheless relied on the illegal and repealed Regulation No 91/2009 – a merely ancillary act – as the legal basis for adopting the contested regulation, even though it knew that Regulation No 91/2009 was contrary to WTO law and EU law, which is why it repealed it.
119    The applicants explain that they are not arguing that the fact that Regulation No 91/2009 infringes WTO law per se is what vitiates the contested regulation. Their claim is that the Commission cannot legally adopt the contested regulation as a merely ancillary act to Regulation No 91/2009, which is illegal and has been repealed.
120    Finally, the applicants agree with the Commission’s assertion that the repeal of Regulation No 91/2009 concerns the future alone. They therefore point out that, since Regulation No 91/2009 was repealed in 2016, it cannot serve as a valid additional legal basis for adopting the contested regulation in 2020.
121    The Commission disputes the applicants’ arguments.
122    In the context of the second plea, the applicants submit, in essence, that the contested regulation was not adopted on a valid legal basis and that the Commission therefore infringed Article 13(1) of Regulation No 1225/2009 and Article 5(1) and (2) TEU and breached the principle of good administration.
123    In the first place, regarding the applicants’ argument relating to the infringement of Article 13(1) of Regulation No 1225/2009, it must first be recalled that acts of the European Union must, in principle, be adopted in accordance with the procedural rules in force at the time of their adoption (see judgment of 15 March 2018, Deichmann, C‑256/16, EU:C:2018:187, paragraph 52 and the case-law cited).
124    It follows that, precisely due to the repeal of Regulation No 1225/2009 and having regard to the purpose of the basic regulation, proceedings initiated on the basis of Regulation No 1225/2009 could, as from its repeal, be pursued only on the basis of the basic regulation (see, to that effect, judgment of 15 March 2018, Deichmann, C‑256/16, EU:C:2018:187, paragraph 52).
125    Since the basic regulation, in accordance with Article 25 thereof, entered into force on 20 July 2016 and the contested regulation was adopted on 3 April 2020, the latter was therefore rightly based on that basic regulation, in particular on Article 13 and Article 14(1) thereof, as set out in the second citation in the contested regulation (see, to that effect, judgment of 9 June 2021, Roland v Commission, T‑132/18, not published, EU:T:2021:329, paragraph 74).
126    In that connection, it should be noted that, first, under Article 13(1) of the basic regulation, anti-dumping duties imposed pursuant to that regulation may be extended to imports from third countries of the like product, whether slightly modified or not, or to imports of the slightly modified like product from the country subject to measures, or parts thereof, when circumvention of the measures in force is taking place. Second, Article 14(1) of that regulation provides that the anti-dumping duties are to be imposed by regulation. Thus, by analogy with the finding of the Court of Justice in the judgment of 19 June 2019, C & J Clark International (C‑612/16, not published, EU:C:2019:508, paragraph 42), those two provisions, read together, therefore empower the Commission to impose anti-dumping duties by regulation where the measures in force have been circumvented (see, to that effect, judgment of 9 June 2021, Roland v Commission, T‑132/18, not published, EU:T:2021:329, paragraph 75).
127    Article 13 and Article 14(1) of the basic regulation, read together, also empower the Commission to re-impose anti-circumvention duties following the delivery of a judgment annulling an act or declaring it to be invalid, after the Commission has resumed the proceedings that gave rise to the regulation annulled or declared invalid by the EU courts and has thereby, in accordance with the procedural and substantive rules applicable ratione temporis, remedied the illegality identified (see, to that effect, judgment of 9 June 2021, Roland v Commission, T‑132/18, not published, EU:T:2021:329, paragraph 76 and the case-law cited).
128    It follows that, since it refers to Article 13 and Article 14(1) of the basic regulation, the contested regulation has a legal basis that empowers the Commission to re-impose the anti-circumvention duties imposed by the regulation declared invalid (see, to that effect, judgment of 9 June 2021, Roland v Commission, T‑132/18, not published, EU:T:2021:329, paragraph 77 and the case-law cited).
129    As regards the applicants’ argument that Article 13(1) of Regulation No 1225/2009 (now Article 13 of the basic regulation) subjects the adoption of anti-circumvention measures to the existence of anti-dumping measures adopted pursuant to Regulation No 1225/2009, it should be borne in mind that, according to case-law, that provision does not preclude the adoption of a regulation extending anti-dumping measures at a time when those measures are no longer in force, on condition, first, that the extension concerns exclusively the period before those measures expired and, second, that registration of the imports concerned was ordered, in accordance with Articles 13(3) and 14(5) of Regulation No 1225/2009 (now Articles 13(3) and 14(5) of the basic regulation), or, as the case may be, that guarantees were required at the time when the investigation into the circumvention was initiated, in order to allow the retroactive application of the extended measures with effect from the date of that registration (see, to that effect, judgment of 17 December 2015, APEX, C‑371/14, EU:C:2015:828, paragraph 55).
130    In the present case, the anti-dumping measures imposed by Regulation No 91/2009 and the anti-circumvention measures imposed by Implementing Regulation No 723/2011 expired on 27 February 2016 with the repeal of that regulation by Implementing Regulation 2016/278 following the DSB’s decision of 12 February 2016 (see paragraph 12 above).
131    The contested regulation – by which anti-circumvention duties on imports of certain iron or steel fasteners consigned from Malaysia were re-imposed after Implementing Regulation No 723/2011 was declared invalid by the judgment of 3 July 2019, Eurobolt (C‑644/17, EU:C:2019:555) – was adopted on 30 April 2020.
132    Article 1(1) of the contested regulation provides that the duties are re-imposed during the period of application of Implementing Regulation No 723/2011, that is, from 27 July 2011, date on which that implementing regulation entered into force, to 27 February 2016, date on which the anti-dumping measures imposed by Regulation No 91/2009 and the anti-circumvention measures imposed by Implementing Regulation No 723/2011 expired.
133    Further, as is apparent from paragraph 5 above, by the adoption of Regulation No 966/2010 initiating the anti-circumvention investigation, the imports were subject to registration pursuant to Article 14(5) of Regulation No 1225/2009 in order to ensure that, should the investigation result in findings of circumvention, anti-dumping duties of an appropriate amount could be levied retroactively from the date of registration of such imports consigned from Malaysia.
134    Having regard to the foregoing analysis, it must be held that, in adopting the contested regulation when the anti-dumping measures imposed by Regulation No 91/2009 had expired, the Commission did not fail to comply with the requirements laid down in Article 13 of the basic regulation because, first, the reimposition of anti-circumvention measures related exclusively to the period prior to their expiry and, second, at the date on which the investigation into circumvention was initiated, registration of the imports concerned had been ordered, in accordance with Articles 13(3) and 14(5) of the basic regulation, in order to permit the retroactive application of the extended measures (see, to that effect, judgment of 17 December 2015, APEX, C‑371/14, EU:C:2015:828, paragraph 58).
135    In the second place, regarding the applicants’ argument relating to breach of the principle of conferral laid down in Article 5(1) and (2) TEU, it should be borne in mind that, under that provision, the European Union is to act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein, and competences not conferred in the Treaties remain with the Member States.
136    In that connection, it must be observed, as did the Commission, that the competence to adopt anti-circumvention regulations is conferred upon the Commission pursuant to Article 207 TFEU, relating to the common commercial policy, and Article 13(1) of the basic regulation, adopted on that legal basis of primary law, to impose anti-dumping duties in circumvention cases. As a result, it must be found that, by adopting the contested regulation, the Commission did not infringe Article 5(1) and (2) TEU.
137    In the third place, regarding the applicants’ argument relating to breach of the principle of good administration, it must be stated, as is apparent from paragraph 12 above, that the Commission decided to repeal the anti-dumping duties imposed on imports of certain iron or steel fasteners originating in China, as extended to imports of certain iron or steel fasteners consigned from Malaysia, by adopting Implementing Regulation 2016/278 in order to bring those measures in line with the findings of the WTO panels and the Appellate Body. It is clear from Article 2 of Implementing Regulation 2016/278 that the repeal of those anti-dumping duties was to take effect from the date of the entry into force of that regulation and was not to serve as a basis for the reimbursement of the duties collected prior to that date. Accordingly, the repeal of the anti-dumping duties did not have an ex tunc effect.
138    In that regard, it must be stated that the ex nunc repeal of the anti-dumping duties imposed by Regulation No 91/2009 following the DSB’s decision of 12 February 2016 does not affect the validity of Regulation No 91/2009.
139    As is apparent from paragraph 119 above, the applicants acknowledge that the fact that Regulation No 91/2009 infringes WTO law does not in itself vitiate the contested regulation. It must also be pointed out that, at the hearing, in reply to a question put by the General Court, the applicants specified that, by relying on the principle of good administration, they were not asking the Court to examine the lawfulness of the contested regulation in the light of the WTO agreements. They did, however, argue that, four years after the anti-dumping duties imposed by Regulation No 91/2009 were repealed on account of the non-compliance of that regulation with the WTO agreements, the Commission should not have taken Regulation No 91/2009 as a valid legal basis in order to adopt the contested regulation.
140    As regards the WTO agreements, it is clear from settled case-law that, given their nature and structure, WTO agreements are not, in principle, among the rules in the light of which the legality of measures adopted by the EU institutions may be reviewed (judgments of 23 November 1999, Portugal v Council, C‑149/96, EU:C:1999:574, paragraph 47, and of 15 November 2018, Baby Dan, C‑592/17, EU:C:2018:913, paragraph 66).
141    In that regard, the Court has held, in particular, that to accept that the Courts of the European Union have the direct responsibility for ensuring that EU law complies with the WTO rules would deprive the European Union’s legislative or executive bodies of the discretion which the equivalent bodies of the European Union’s commercial partners enjoy. It is not in dispute that some of the contracting parties, which are amongst the most important commercial partners of the European Union, have concluded from the subject matter and purpose of the WTO agreements that they are not among the rules applicable by their courts when reviewing the legality of their rules of domestic law. Such lack of reciprocity, if admitted, would risk introducing an anomaly in the application of the WTO rules (judgment of 1 March 2005, Van Parys, C‑377/02, EU:C:2005:121, paragraph 53).
142    It is only in two exceptional situations, which are the result of the EU legislature’s own intention to limit its discretion in the application of the WTO rules, that the Court of Justice has accepted that it is for the Courts of the European Union, if necessary, to review the legality of an EU measure and of the measures adopted for its application in the light of the WTO agreements or a decision of the DSB establishing non-compliance with those agreements (see judgment of 18 October 2018, Rotho Blaas,
C‑207/17, EU:C:2018:840, paragraph 47 and the case-law cited).
143    The first such situation is where the European Union intended to implement a particular obligation assumed in the context of those WTO agreements and the second is where the EU act at issue refers explicitly to specific provisions of those agreements (see, to that effect, judgments of 22 June 1989, Fediol v Commission, 70/87, EU:C:1989:254, paragraphs 19 to 23, and of 7 May 1991, Nakajima v Council, C‑69/89, EU:C:1991:186, paragraphs 29 to 32).
144    Neither of the two exceptions referred to above is applicable to Regulation No 91/2009. The Court of Justice has previously held that that act does not expressly refer to the specific provisions of Article VI of the GATT 1994, and there is no evidence that, by adopting that regulation, the Council intended to implement a specific obligation assumed under that agreement or, more generally, the WTO agreements. Thus, the Court found that the lawfulness of Regulation No 91/2009 could not be assessed either in the light of Article VI of the GATT 1994 or in the light of the DSB’s decision of 28 July 2011 and that, as a result, there were no factors affecting the validity of Regulation No 91/2009 in that regard (see, to that effect, judgment of 18 October 2018, Rotho Blaas, C‑207/17, EU:C:2018:840, paragraphs 50, 56 and 57).
145    Regarding the applicants’ arguments referred to in paragraphs 91 and 93 of the application, according to which the Court of Justice annulled the ‘original regulation’ (that is to say, Regulation No 91/2009), it must be specified that in the judgment of 5 April 2017, Changshu City Standard Parts Factory and Ningbo Jinding Fastener v Council (C‑376/15 P and C‑377/15 P, EU:C:2017:269), the Court of Justice annulled Implementing Regulation No 924/2012 amending Regulation No 91/2009 in so far as it concerned two companies established in China which produce certain iron or steel fasteners for sale on the national market or for export, in particular, to the European Union.
146    In the judgment of 5 April 2017, Changshu City Standard Parts Factory and Ningbo Jinding Fastener v Council (C‑376/15 P and C‑377/15 P, EU:C:2017:269), the Court of Justice held that, by taking the view, in paragraphs 82, 102 and 109 of the regulation at issue, that the product types exported by the Chinese exporting producers for which no matching type was produced and sold by the Indian producer should be excluded, the Council had infringed Article 2(11) of Regulation No 1225/2009 (see, to that effect, judgment of 5 April 2017, Changshu City Standard Parts Factory and Ningbo Jinding Fastener v Council, C‑376/15 P and C‑377/15 P, EU:C:2017:269, paragraphs 75 and 76).
147    As the Commission asserts, the annulment by the Court of Justice of Implementing Regulation No 924/2012 amending Regulation No 91/2009 does not affect the validity of Regulation No 91/2009 itself, since it does no more than find that there is an error of law in Implementing Regulation No 924/2012.
148    As regards the applicants’ argument that the Commission is also in breach of the principle of good administration, it must be stated that the fact that the Commission repealed Regulation No 91/2009 on account of its non-compliance with the WTO agreements does not vitiate the lawfulness of the contested regulation.
149    In the second place, in accordance with Article 216(2) TFEU, international agreements concluded by the European Union are binding upon the EU institutions and on its Member States. According to the settled case-law of the Court of Justice, those agreements are an integral part of EU law from their entry into force (see judgment of 6 October 2020, Commission v Hungary (Higher education), C‑66/18, EU:C:2020:792, paragraph 69 and the case-law cited). In addition, according to Article 21(2) TEU, the European Union is required to seek to ensure ‘a high degree of cooperation in all fields of international relations’ in order to, inter alia, ‘promote an international system based on stronger multilateral cooperation and good global governance’.
150    In the present case, it must be observed that, first, as is apparent from paragraph 144 above, the Court noted that the lawfulness of Regulation No 91/2009 cannot be assessed either in the light of Article VI of GATT 1994 or in the light of the DSB’s decision of 28 July 2011. Thus, it must be stated, similarly to the Commission, that the non-compliance of Regulation No 91/2009 with the WTO agreements does not affect its validity within the EU legal order.
151    Second, the Commission fulfilled its obligation to bring those measures in line with the findings of the WTO panels and Appellate Body by repealing those duties through Implementing Regulation 2016/278.
152    Third, the contested regulation was adopted pursuant to Article 13 and Article 14(1) of the basic regulation. It re-imposes anti-circumvention duties during the period of application of Implementing Regulation No 723/2011, that is, between 27 July 2011 and 27 February 2016, during which the initial measures imposed by Regulation No 91/2009 had not yet expired (see paragraphs 132 and 134 above).
153    Last, as is apparent from recital 29 of the contested regulation, the Commission had the obligation to take the necessary steps to comply with a judgment of the Court of Justice, that is to say, to correct an illegality identified by that court. As the procedural error could be remedied and the findings of circumvention were confirmed, the Commission was entitled to reimpose the anti-circumvention duties for the period of application of the measures in question, based on the uncontested findings of the anti-circumvention investigation.
154    As a result, it must be found that, by adopting the contested regulation, the Commission was not in breach of the principle of good administration.
155    In the light of the foregoing considerations, the applicants’ second plea in law must be rejected.
The third plea in law, alleging that the Commission does not have competence to prohibit repayment of anti-dumping duties or order collection of the repayments made
156    By their third plea in law, the applicants claim that, by definitively prohibiting the customs authorities from repaying the anti-dumping duties unduly paid on the basis of Implementing Regulation No 723/2011, which was declared invalid by the Court of Justice in its judgment of 3 July 2019, Eurobolt (C‑644/17, EU:C:2019:555), and by ordering them to collect the repayments made following that judgment, the contested regulation infringes Article 5(1) and (2) TEU.
157    In that connection, the applicants are of the view that, in the contested regulation, the Commission usurped the customs authorities’ competence to decide on the repayment of anti-dumping duties unduly paid on the basis of the invalid Implementing Regulation No 723/2011.
158    According to the applicants, it follows from the judgments of 15 March 2018, Deichmann (C‑256/16, EU:C:2018:187, paragraph 84), and of 19 June 2019, C & J Clark International (C‑612/16, not published, EU:C:2019:508, paragraphs 84 and 85), the customs debt based on Implementing Regulation No 723/2011 is legally distinct from the customs debt based on the contested regulation. Repayment of the anti-dumping duties that they unduly paid based on the invalid Implementing Regulation No 723/2011 is thus legally distinct from the potential collection of the customs debt based on the contested regulation. The same is true in respect of the collection of anti-dumping duties that the customs authorities may have repaid pursuant to the judgment of 3 July 2019, Eurobolt (C‑644/17, EU:C:2019:555).
159    Moreover, they observe that, contrary to the claim made in the contested regulation, the Court has never recognised that the Commission could definitively prohibit repayment of unduly paid anti-dumping duties based on an invalid regulation. The customs authorities have exclusive competence to prohibit definitively repayment of anti-dumping duties and, by analogy, to order the collection of duties already repaid. In the judgments of 15 March 2018, Deichmann (C‑256/16, EU:C:2018:187, paragraph 59), and of 19 June 2019, C & J Clark International (C‑612/16, not published, EU:C:2019:508, paragraph 42), the Court merely recognised that the Commission could prohibit repayment temporarily whilst it reopened an anti-dumping investigation pursuant to Article 266 TFEU in order to safeguard the collection of anti-dumping duties.
160    The Commission disputes the applicants’ arguments.
161    Regarding the applicants’ argument that the Commission usurped the competence of the customs authorities to decide on the repayment of anti-dumping duties unduly paid on the basis of Implementing Regulation No 723/2011, which was declared invalid by the Court of Justice, it is sufficient to bear in mind, as is apparent from paragraph 135 above, that the Commission has competence to adopt anti-circumvention regulations under Article 207 TFEU on the common commercial policy and under Article 13(1) of the basic regulation, adopted on the legal basis of primary law, to impose anti-dumping duties in circumvention cases.
162    It is also appropriate to refer to paragraphs 125 and 126 above, which set out that the contested regulation was adopted correctly under Article 13 and Article 14(1) of the basic regulation.
163    Article 2 of the contested regulation provides that the anti-dumping duties paid on the basis of Implementing Regulation No 723/2011 are not to be reimbursed and that any reimbursements that took place following the judgment of 3 July 2019, Eurobolt (C‑644/17, EU:C:2019:555), are to be collected by the authorities which made those reimbursements.
164    That article is nothing more than the logical consequence of the fact that, after the illegality was remedied following the judgment of 3 July 2019, Eurobolt (C‑644/17, EU:C:2019:555), the Commission re-imposed anti-circumvention duties identical to those imposed by Implementing Regulation No 723/2011.
165    Moreover, it must be observed that the Court confirmed, in the judgment of 15 March 2018, Deichmann (C‑256/16, EU:C:2018:187, paragraph 59), that the Commission has powers to provide directions to the national customs authorities, since these directions relate to the collection of the relevant anti-dumping duties by the Member State concerned.
166    Admittedly, as the applicants submit, in the judgment of 15 March 2018, Deichmann (C‑256/16, EU:C:2018:187), the Court of Justice acknowledged that the Commission could prohibit repayment temporarily whilst it reopened an anti-dumping investigation pursuant to Article 266 TFEU in order to safeguard the collection of anti-dumping duties.
167    However, as the Commission observes, the very purpose of the temporary prohibition is to prevent any risk of time bar or insolvency or any other obstacle to the collection of the duties during the time necessary to implement the judgment. The purpose of the temporary prohibition is thus to enable and prepare the permanent prohibition.
168    Accordingly, it must be stated that the Commission did not infringe Article 5(1) and (2) TEU by definitively prohibiting the customs authorities from repaying the anti-dumping duties unduly paid on the basis of Implementing Regulation No 723/2011, which was declared invalid by the Court of Justice in its judgment of 3 July 2019, Eurobolt (C‑644/17, EU:C:2019:555), and by ordering them to collect the repayments made following that judgment.
169    Therefore, it cannot be held that, by adopting the contested regulation, the Commission usurped the competence of the customs authorities to decide on the repayment of anti-dumping duties unduly paid on the basis of Implementing Regulation No 723/2011.
170    In the light of the foregoing considerations, the third plea must be rejected and, therefore, the action as a whole must be dismissed.
Costs
171    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. 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 (Ninth Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Eurobolt BV, Fabory Nederland BV, ASF Fischer BV and Stafa Group BV to pay the costs.
Costeira
Perišin
Zilgalvis
Delivered in open court in Luxembourg on 18 May 2022.
E. Coulon
M. van der Woude
Registrar
President
*      Language of the case: English.