Judgment of the General Court (Seventh Chamber) of 10 October 2012 — Ningbo Yonghong Fasteners v Council

(Case T-150/09)

Dumping — Imports of certain iron or steel fasteners originating in China — Market economy treatment — Time-limit for adopting the decision on that treatment — Manifest error of assessment — Burden of proof — Adjustment to costs — Article 2(5) and (7)(b) and (c) of Regulation (EC) No 384/96 (now Article 2(5) and (7)(b) and (c) of Regulation (EC) No 1225/2009)

1. Actions for annulment — Natural or legal persons — Measures of direct and individual concern to them — Regulation imposing anti-dumping duties — Varying duties imposed on a series of undertakings — Admissibility limited, for each undertaking, to the provisions of the regulation concerning it (Art. 230, fourth para., EC) (see paras 47, 48)

2. Common commercial policy — Protection against dumping — Dumping margin — Determination of the normal value — Imports from countries not having a market economy as referred to in Article 2(7)(b) of Regulation No 384/96 — Procedure for assessing the conditions allowing a producer to benefit from market economy treatment — Commission exceeding the three-month time-limit laid down by Article 2(7)(c), second paragraph, of that regulation — Consequences (Council Regulation No 384/96, as amended by Regulation No 1225/2009, Art. 2(7)(c)) (see paras 50, 53-55, 57, 59, 64, 65, 68)

3. Common commercial policy — Protection against dumping — Dumping margin — Determination of the normal value — Granting of market economy operator status — Conditions — Burden of proof on producers — Assessment of evidence a matter for the institutions — Judicial review — Limits (Council Regulation No 384/96, as amended by Regulation No 1225/2009, Art. 2(7)(b) and (c)) (see paras 75-77, 99, 100)

4. European Union law — Interpretation — Methods — Literal, systematic, historic and teleological interpretation — Account to be taken of the reasoning for the measure in question (see paras 114, 131-137)

5. Common commercial policy — Protection against dumping — Dumping margin — Determination of the normal value — Granting of market economy operator status — Conditions — Discretion of the institutions — Account to be taken of macroeconomic considerations — Limits — Previous practice of the institutions — Irrelevant — Assessment of the conditions for obtaining that status on a case-by-case basis (Council Regulation No 384/96, as amended by Regulation No 1225/2009, Art. 2(7)(b) and (c)) (see paras 116-120)

6. Common commercial policy — Protection against dumping — Dumping margin — Determination of the normal value — Granting of market economy operator status — Conditions — Burden of proof on producers — Not unreasonable (Council Regulation No 384/96, as amended by Regulation No 1225/2009, Art. 2(7)(b) and (c)) (see paras 124-126)

7. Common commercial policy — Protection against dumping — Dumping margin — Determination of the normal value — Article 2(5) of Regulation No 384/96 — Provision providing for a distinct phase of the said determination in relation to that referred to in paragraph 7(c) of the same article — Provision not allowing a condition for obtaining market economy operator status to be overlooked (Council Regulation No 384/96, as amended by Regulation No 1225/2009, Art. 2(5) and (7)(c)) (see paras 138, 139)

Re:

APPLICATION for annulment of Council Regulation (EC) No 91/2009 of 26 January 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).

Operative part

The Court:

1. Dismisses the action;

2. Orders Ningbo Yonghong Fasteners Co. Ltd to bear its own costs and to pay those of the Council of the European Union and of the European Industrial Fasteners Institute AISBL;