Keywords

Summary



Keywords

1. Common commercial policy — Protection against dumping — Request for reimbursement of anti-dumping duties based on Article 11(8) of Regulation No 1225/2009 — Time-limit

(Council Regulation No 1225/2009, Art. 11(8), second para.; Commission Notice 2002/C 127/06)

2. Common commercial policy — Protection against dumping — Reimbursement of anti-dumping duties — Discretion of the Commission — Effect of guidelines adopted by the Commission

(Council Regulation No 1225/2009, Art. 11(8); Commission Notice 2002/C 127/06)

3. EU law — Principles — Legal certainty — EU legislation — Requirements of clarity and precision — Effect of guidelines adopted by the Commission

(Council Regulation No 1225/2009, Art. 11(8), second para; Commission Notice 2002/C 127/06)

Summary

1. As regards the procedure to be followed in order to obtain refund of an anti-dumping duty where it is shown that the dumping margin, on the basis of which that duty was paid, has been eliminated or reduced to a level lower than that of the duty in force, the second subparagraph of Article 11(8) of basic anti-dumping Regulation No 1225/2009 is the relevant provision. The wording of that provision refers to the anti-dumping duties ‘to be levied’. It does not therefore contain a condition linked to the payment of those duties for an application for a refund to be admissible.

Accordingly, the starting point for the six-month time-limit laid down in the second subparagraph of Article 11(8) of the basic regulation is not subject to any condition relating to the prior payment of the anti-dumping duties.

There is nothing in the wording of the second subparagraph of Article 11(8) of the basic regulation to suggest that applications for refunds must be duly supported within the meaning of the third subparagraph of that paragraph from the time they are submitted. They may be supplemented in the course of the procedure.

Whilst it is true that the Commission’s notice concerning the refunding of anti-dumping duties provides that the Commission shall notify the person concerned of the information to be submitted, specifying a reasonable period of time within which the requested evidence must be sent, is not obliged to examine of its own motion and by way of guesswork what matters might have been brought before it. That provision cannot be understood as requiring the Commission to communicate to the person concerned the types or categories of information or documents to be provided to it in order to be able to examine an application for a refund.

(see paras 34, 35, 40, 46)

2. An interpretative note, such as the Commission’s notice concerning the refunding of anti-dumping duties, which, according to its preamble, sets out the guidelines regarding the application of Article 11(8) of basic anti-dumping Regulation No 1225/209, cannot have the effect of modifying the mandatory rules contained in a regulation. Thus, in the event of any overlap and incompatibility with such a rule, the interpretative note must yield.

(see paras 50, 52)

3. The principle of legal certainty is a fundamental principle of Union law which requires, in particular, that rules should be clear and precise, so that individuals may be able to ascertain unequivocally what their rights and obligations are and may take steps accordingly. However, where a degree of uncertainty regarding the meaning and scope of a rule of law is inherent in the rule, it is necessary to examine whether the rule of law at issue displays such ambiguity as to prevent individuals from resolving with sufficient certainty any doubts as to the scope or meaning of that rule.

Guidelines contained in the communications or in the interpretative notices of the Commission are adopted with a view to ensuring that the action brought by the Commission is transparent, foreseeable and consistent with legal certainty.

According to the preamble to the Commission notice concerning the refunding of anti-dumping duties, the purpose of that notice is to set out the guidelines regarding the application of Article 11(8) of the basic regulation and thus to clarify for the different parties involved in a refund procedure inter alia the conditions to be fulfilled by an application. Consequently, it was adopted in order to increase the legal certainty of Article 11(8) of the basic regulation, which contains a certain amount of uncertainty as to the meaning and scope of the rule of law in question, for the benefit of those parties.

In so far as that Commission notice is intended for economic operators who are not required to have systematic recourse to legal assistance for their day-to-day operations, it is crucial that its interpretation of Article 11(8) of the basic regulation is as clear and unambiguous as possible. According to the objective and nature of that notice, reading its provisions must allow a well-informed and diligent economic operator to ascertain unequivocally what his rights and obligations are or even to resolve any doubts as to the scope or meaning of those rules.

Those conditions are not satisfied by the said Commission notice, which sends out contradictory signals regarding the requirements for submitting an application for a refund of anti-dumping duties, and, more particularly, regarding the time-limits for bringing applications under Article 11(8) of basic anti-dumping Regulation No 1225/2009. In that regard, point 2.6(a) of that notice provides essentially that applications under Article 11(8) of that regulation must be brought within six months from the date on which the amount of the anti-dumping duties was duly determined. However, a combined reading of points 2.1(b) and 2.2(a), the footnote on page 6, and the third subparagraph of point 3.1.3(a) of that notice implies that the time for bringing such an application does not start to run for as long as those duties have not been paid, and thus runs counter to point 2.6(a) of that notice. Thus, economic operators who refer to the interpretative notice in performing their day-to-day operations may, on reading it, have legitimate doubts as to the correct interpretation to be given to Article 11(8) of basic anti-dumping Regulation No 1225/2009.

(see paras 68, 70-75, 77, 81-83)