JUDGMENT OF THE COURT (Tenth Chamber)

8 September 2022 ( )

(Appeal – Dumping – Imports of certain footwear with uppers of leather originating in the People’s Republic of China and Vietnam – Implementation of the judgment of the Court of Justice in Joined Cases C‑659/13 and C‑34/14 – Reimposition of a definitive anti-dumping duty – Competence ratione temporis – Principle of non-discrimination)

In Case C‑507/21 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 18 August 2021,

Puma SE, established in Herzogenaurach (Germany),

Puma United Kingdom Ltd, established in London (United Kingdom),

Puma Nordic AB, established in Helsingborg (Sweden),

Austria Puma Dassler GmbH, established in Salzburg (Austria),

Puma Italia Srl, established in Milan (Italy),

Puma France SAS, established in Strasbourg (France),

Puma Denmark A/S, established in Skanderborg (Denmark),

Puma Iberia SL, established in Madrid (Spain),

Puma Retail AG, established in Oensingen (Switzerland),

represented by J. Cornelis and E. Vermulst, advocaten,

appellants,

the other party to the proceedings being:

European Commission, represented by L. Armati, G. Luengo and T. Maxian Rusche, acting as Agents,

defendant at first instance,

THE COURT (Tenth Chamber),

composed of I. Jarukaitis, President of the Chamber, D. Gratsias (Rapporteur) and Z. Csehi, Judges,

Advocate General: M. Campos Sánchez-Bordona,

Registrar: A. Calot Escobar,

having regard to the written procedure,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 By their appeal, Puma SE, Puma United Kingdom Ltd, Puma Nordic AB, Austria Puma Dassler GmbH, Puma Italia Srl, Puma France SAS, Puma Denmark A/S, Puma Iberia SL and Puma Retail AG seek to have set aside the judgment of the General Court of the European Union of 9 June 2021, Puma and Others v Commission (T‑781/16, not published, EU:T:2021:328; ‘the judgment under appeal’), by which the General Court dismissed their action based on Article 263 TFEU and seeking annulment of:

– first, Commission Implementing Regulation (EU) 2016/1395 of 18 August 2016 reimposing a definitive anti-dumping duty and collecting definitely the provisional duty imposed on imports of certain footwear with uppers of leather originating in the People’s Republic of China and produced by Buckinghan Shoe Mfg Co. Ltd, Buildyet Shoes Mfg., DongGuan Elegant Top Shoes Co. Ltd, Dongguan Stella Footwear Co. Ltd, Dongguan Taiway Sports Goods Limited, Foshan City Nanhai Qun Rui Footwear Co., Jianle Footwear Industrial, Sihui Kingo Rubber Shoes Factory, Synfort Shoes Co. Ltd, Taicang Kotoni Shoes Co. Ltd, Wei Hao Shoe Co. Ltd, Wei Hua Shoe Co. Ltd, Win Profile Industries Ltd, and implementing the judgment of the Court of Justice in Joined Cases C‑659/13 and C‑34/14 (OJ 2016 L 225, p. 52);

– second, Commission Implementing Regulation (EU) 2016/1647 of 13 September 2016 re-imposing a definitive anti-dumping duty and collecting definitely the provisional duty imposed on imports of certain footwear with uppers of leather originating in Vietnam and produced by Best Royal Co. Ltd, Lac Cuong Footwear Co. Ltd, Lac Ty Co. Ltd, Saoviet Joint Stock Company (Megastar Joint Stock Company), VMC Royal Co. Ltd, Freetrend Industrial Ltd and its related company Freetrend Industrial A (Vietnam) Co. Ltd, Fulgent Sun Footwear Co. Ltd, General Shoes Ltd, Golden Star Co. Ltd, Golden Top Company Co. Ltd, Kingmaker Footwear Co. Ltd, Tripos Enterprise Inc., Vietnam Shoe Majesty Co. Ltd, and implementing the judgment of the Court of Justice in Joined Cases C‑659/13 and C‑34/14 (OJ 2016 L 245, p. 16);

– third, Commission Implementing Regulation (EU) 2016/1731 of 28 September 2016 reimposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain footwear with uppers of leather originating in the People’s Republic of China and Vietnam and produced by General Footwear Ltd (China), Diamond Vietnam Co. Ltd and Ty Hung Footgearmex/Footwear Co. Ltd and implementing the judgment of the Court of Justice in Joined Cases C‑659/13 and C‑34/14 (OJ 2016 L 262, p. 4) (hereinafter collectively referred to as ‘the contested implementing regulations’).

Legal context

2 The facts giving rise to the dispute and the contested implementing regulations occurred between March 2006 and September 2016. During that period, the adoption of anti-dumping measures within the European Union was successively governed, first of all, by 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, and corrigenda, OJ 1999 L 94, p. 27, and OJ 2000 L 263, p. 34), as amended by Council Regulation (EC) No 461/2004 of 8 March 2004 (OJ 2004 L 77, p. 12) (‘Regulation No 384/96’), subsequently, 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, and corrigenda, OJ 2010 L 7, p. 22, and OJ 2016 L 44, p. 20), and, finally, 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).

3 Article 9(4) of Regulation No 384/96 provided:

‘Where the facts as finally established show that there is dumping and injury caused thereby, and the [European] Community interest calls for intervention in accordance with Article 21, a definitive anti-dumping duty shall be imposed by the Council [of the European Union], acting on a proposal submitted by the [European] Commission after consultation of the Advisory Committee. The proposal shall be adopted by the Council unless it decides by a simple majority to reject the proposal, within a period of one month after its submission by the Commission. …’

4 The original version of Article 9(4) of Regulation No 1225/2009 was worded in identical terms.

5 Under paragraph 22(5) of the Annex to Regulation (EU) No 37/2014 of the European Parliament and of the Council of 15 January 2014 amending certain regulations relating to the common commercial policy as regards the procedures for the adoption of certain measures (OJ 2014 L 18, p. 1), the wording of Article 9(4) of Regulation No 1225/2009 was replaced by the following wording:

‘Where the facts as finally established show that there is dumping and injury caused thereby, and the Union interest calls for intervention in accordance with Article 21, a definitive anti-dumping duty shall be imposed by the Commission acting in accordance with the examination procedure referred to in Article 15(3). …’

6 Under Article 3 of Regulation No 37/2014:

‘This Regulation shall not affect procedures initiated for the adoption of measures provided for in the Regulations listed in the Annex to this Regulation where, on or before the entry into force of this Regulation:

(a) the Commission has adopted an act;

(b) consultation is required under one of the Regulations listed in the Annex and such consultation has been initiated; or

(c) a proposal is required under one of the Regulations listed in the Annex and the Commission has adopted such a proposal.’

7 Regulation No 1225/2009 was repealed pursuant to Article 24 of Regulation 2016/1036. That regulation entered into force, under Article 25 thereof, on the twentieth day following its publication in the Official Journal of the European Union, that is to say, on 20 July 2016.

8 Article 9(4) of Regulation 2016/1036 provides:

‘Where the facts as finally established show that there is dumping and injury caused thereby, and the Union interest calls for intervention in accordance with Article 21, a definitive anti-dumping duty shall be imposed by the Commission acting in accordance with the examination procedure referred to in Article 15(3). …’

9 Article 14(1) of Regulation 2016/1036 provides, inter alia, that provisional or definitive anti-dumping duties are to be imposed by regulation, and collected by Member States in the form, at the rate specified and according to the other criteria laid down in the regulation imposing such duties.

10 In addition, the first subparagraph of Article 217(1) 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 (EC) No 2700/2000 of the European Parliament and of the Council of 16 November 2000 (OJ 2000 L 311, p. 17) (‘the Customs Code’), provided:

‘Each and every amount of import duty or export duty resulting from a customs debt … shall be calculated by the customs authorities as soon as they have the necessary particulars, and entered by those authorities in the accounting records or on any other equivalent medium (entry in the accounts).’

11 Under Article 221 of the Customs Code:

‘1. As soon as it has been entered in the accounts, the amount of duty shall be communicated to the debtor in accordance with appropriate procedures.

…

3. Communication to the debtor shall not take place after the expiry of a period of three years from the date on which the customs debt was incurred. This period shall be suspended from the time an appeal within the meaning of Article 243 is lodged, for the duration of the appeal proceedings.

…’

12 According to Article 236 of the Customs Code:

‘1. Import duties or export duties shall be repaid in so far as it is established that when they were paid the amount of such duties was not legally owed or that the amount has been entered in the accounts contrary to Article 220(2).

…

2. Import duties or export duties shall be repaid or remitted upon submission of an application to the appropriate customs office within a period of three years from the date on which the amount of those duties was communicated to the debtor.

…’

Background to the dispute

13 The background to the dispute is set out in paragraphs 2 to 27 of the judgment under appeal. For the purposes of these proceedings, that background may be summarised as follows.

14 On 23 March 2006, the Commission adopted Regulation (EC) No 553/2006 imposing a provisional anti-dumping duty on imports of certain footwear with uppers of leather originating in the People’s Republic of China and Vietnam (OJ 2006 L 98, p. 3).

15 On 5 October 2006, the Council adopted Regulation (EC) No 1472/2006 imposing a definitive anti-dumping duty and collecting definitely the provisional duty imposed on imports of certain footwear with uppers of leather originating in the People’s Republic of China and Vietnam (OJ 2006 L 275, p. 1).

16 Article 1(3) of Regulation No 1472/2006 fixed the rate of that duty at 16.5% for footwear with uppers of leather (‘the products at issue’) manufactured by all companies established in China, with the exception of those manufactured by Foshan City Nanhai Golden Step Industrial Co. Ltd, for which the rate was 9.7%, and at 10% for those manufactured by all companies established in Vietnam. Article 3 of that regulation provided that the regulation would enter into force on the day following that of its publication in the Official Journal of the European Union, which took place on 6 October 2006, and that it would remain in force for a period of two years, that is to say from 7 October 2006 until 6 October 2008.

17 On 29 April 2008, the Council extended the application of that anti-dumping duty to imports consigned from the Macao Special Administrative Region (SAR), by adopting Regulation (EC) No 388/2008 extending the definitive anti-dumping measures imposed by Regulation No 1472/2006 on imports of certain footwear with uppers of leather originating in the People’s Republic of China to imports of the same product consigned from the Macao SAR, whether declared as originating in the Macao SAR or not (OJ 2008 L 117, p. 1).

18 On 22 December 2009, a prolonging regulation was adopted, namely Council Implementing Regulation (EU) No 1294/2009 imposing a definitive anti-dumping duty on imports of certain footwear with uppers of leather originating in Vietnam and originating in the People’s Republic of China, as extended to imports of certain footwear with uppers of leather consigned from the Macao SAR, whether declared as originating in the Macao SAR or not, following an expiry review pursuant to Article 11(2) of Regulation No 384/96 (OJ 2009 L 352, p. 1).

19 Article 1(3) and (4) of Implementing Regulation No 1294/2009 fixed the rate of that duty:

– at 16.5% for the products at issue manufactured by all companies established in China, with the exception of Foshan City Nanhai Golden Step Industrial Co. Ltd, and for those consigned from the Macao SAR;

– at 9.7% for the products at issue manufactured by Foshan City Nanhai Golden Step Industrial Co. Ltd, and

– at 10% for those manufactured by all companies established in Vietnam.

20 Article 2 of that implementing regulation provided that the regulation would enter into force on the day following that of its publication in the Official Journal of the European Union, which took place on 30 December 2009, and that it would remain in force for a period of 15 months.

21 The anti-dumping duty expired on 31 March 2011, as indicated in the Commission Notice published in the Official Journal of the European Union on 16 March 2011 (OJ 2011 C 82, p. 4).

22 Regulation No 1472/2006 was the subject of proceedings before the General Court in the cases which gave rise to the judgments of 4 March 2010, Brosmann Footwear (HK) and Others v Council (T‑401/06, EU:T:2010:67), and of 4 March 2010, Zhejiang Aokang Shoes and Wenzhou Taima Shoes v Council (T‑407/06 and T‑408/06, EU:T:2010:68), in which the General Court dismissed the actions brought by certain companies established in China which produce and export the products at issue.

23 On two appeals brought by five producing and exporting companies, the Court of Justice, by judgments of 2 February 2012, Brosmann Footwear (HK) and Others v Council (C‑249/10 P, EU:C:2012:53), and of 15 November 2012, Zhejiang Aokang Shoes v Council (C‑247/10 P, not published, EU:C:2012:710), first, set aside the judgments of 4 March 2010, Brosmann Footwear (HK) and Others v Council (T‑401/06, EU:T:2010:67), and of 4 March 2010, Zhejiang Aokang Shoes and Wenzhou Taima Shoes v Council (T‑407/06 and T‑408/06, EU:T:2010:68), and, second, annulled Regulation No 1472/2006 in so far as it concerned those five companies.

24 In particular, the Court of Justice held that Regulation No 1472/2006 was vitiated by an infringement of the obligation imposed on the Commission to examine the claims of exporting producers for market economy treatment (‘MET’) and to adjudicate upon each of those claims within a period of three months from the initiation of its investigation, in accordance with Regulation No 384/96.

25 Therefore, on 19 February 2014, the Commission adopted a proposal for a Council Implementing Regulation reimposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain footwear with uppers of leather originating in the People’s Republic of China and produced by Brosmann Footwear (HK) Ltd, Seasonable Footwear (Zhongshan) Ltd, Lung Pao Footwear (Guangzhou) Ltd, Risen Footwear (HK) Co. Ltd and Zhejiang Aokang Shoes Co. Ltd (COM/2014/087 final), those companies having brought the appeals referred to in paragraph 23 above. However, by Implementing Decision 2014/149/EU of 18 March 2014 rejecting the proposal for an Implementing Regulation reimposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain footwear with uppers of leather originating in the People’s Republic of China and produced by Brosmann Footwear (HK) Ltd, Seasonable Footwear (Zhongshan) Ltd, Lung Pao Footwear (Guangzhou) Ltd, Risen Footwear (HK) Co. Ltd and Zhejiang Aokang Shoes Co. Ltd (OJ 2014 L 82, p. 27), the Council decided to reject the Commission’s proposal on the ground that the operators concerned had acquired a legitimate expectation that their debt was time-barred and, consequently, ‘extinguished’.

26 The judgments of 2 February 2012, Brosmann Footwear (HK) and Others v Council (C‑249/10 P, EU:C:2012:53), and of 15 November 2012, Zhejiang Aokang Shoes v Council (C‑247/10 P, not published, EU:C:2012:710), were relied on by a number of importers of the products at issue, including Puma, in order to challenge the relevant anti-dumping measures before the competent national courts, which subsequently referred questions to the Court of Justice for a preliminary ruling on interpretation and assessment of validity, in accordance with Article 267 TFEU. Those cases originated in claims for reimbursement of the anti-dumping duties paid, submitted pursuant to Article 236 of the Customs Code.

27 Thus, on 13 December 2013 and 24 January 2014, the First-tier Tribunal (Tax Chamber) (United Kingdom) and the Finanzgericht München (Finance Court, Munich, Germany), respectively, submitted requests for a preliminary ruling to the Court of Justice under Article 267 TFEU concerning the validity and the interpretation of Regulation No 1472/2006 and Implementing Regulation No 1294/2009, and concerning the interpretation of Article 236 of the Customs Code.

28 Those requests for a preliminary ruling gave rise to the judgment of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74), by which the Court of Justice declared Regulation No 1472/2006 and Implementing Regulation No 1294/2009 invalid, in so far as that regulation and that implementing regulation infringed Article 2(7)(b) and Article 9(5) of Regulation No 384/96.

29 More specifically, the Court of Justice held, in that judgment, that that regulation and that implementing regulation had been adopted without the Council and the Commission having first examined the MET claims and the individual treatment (‘IT’) claims submitted to them by the Chinese and Vietnamese exporting producers not sampled in the context of the investigation which had led to the adoption of those regulations.

30 Following delivery of the judgment of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74), the Commission adopted Implementing Regulation (EU) 2016/223 of 17 February 2016 establishing a procedure for assessing certain market economy treatment and individual treatment claims made by exporting producers from China and Vietnam, and implementing the judgment of the Court of Justice in Joined Cases C‑659/13 and C‑34/14 (OJ 2016 L 41, p. 3).

31 It is apparent from recital 16 of Implementing Regulation 2016/223 that the Commission decided to resume the anti-dumping proceeding at the point at which the illegality identified in the judgment of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74), had occurred and to examine whether market economy conditions prevailed for the exporting producers for the period from 1 April 2004 to 31 March 2005. According to recital 17 of that implementing regulation, the Commission intended to assess, for imports of Clark and of Puma, all MET and IT claims submitted. In that context, the Commission decided, as stated in recital 18 of that implementing regulation, to order the national customs authorities provisionally not to reimburse the anti-dumping duties collected. The Commission also undertook to follow the same procedure in relation to any MET or IT claim submitted by a Chinese or Vietnamese exporting producer whose products would be affected by a reimbursement claim submitted by an importer within the three-year period laid down for that purpose in Article 236 of the Customs Code.

32 Accordingly, Article 1 of Implementing Regulation 2016/223 provides as follows:

‘1. National customs authorities, which have received a request for re-imbursement, based on Article 236 of the … Customs Code, of anti-dumping duties imposed by Regulation … No 1472/2006 or [Implementing] Regulation … No 1294/2009 and collected by national customs authorities, which is based on the fact that a non-sampled exporting producer had requested MET or IT, shall forward that request and any supporting documents to the Commission.

2. Within eight months of the receipt of the request and any supporting documents, the Commission shall verify whether the exporting producer had indeed lodged an MET and IT claim. If so, the Commission shall assess that claim and re-impose the appropriate duty by means of a Commission Implementing Regulation, after disclosure …

3. The national customs authorities shall await the publication of the relevant Commission Implementing Regulation re-imposing the duties before deciding on the claim for repayment and remission of anti-dumping duties.’

33 In proceedings relating to a claim for repayment of anti-dumping duties paid, brought before the Finanzgericht Düsseldorf (Finance Court, Düsseldorf, Germany), that court, by decision of 20 April 2016, referred a question to the Court of Justice for a preliminary ruling under point (b) of the first paragraph of Article 267 TFEU, calling into question the validity of Implementing Regulation 2016/223. In the judgment of 15 March 2018, Deichmann (C‑256/16, EU:C:2018:187), the Court of Justice reached the conclusion that consideration of that question had not revealed any factor capable of affecting the validity of that implementing regulation.

34 On 18 August 2016, the Commission adopted Implementing Regulation 2016/1395. Under Article 1(1) and (3) of that implementing regulation, the Commission reimposed a definitive anti-dumping duty at a rate of 16.5% for imports of the products at issue manufactured by 13 Chinese exporting producers during the period of application of Regulation No 1472/2006 and Implementing Regulation No 1294/2009.

35 On 13 September 2016, the Commission adopted Implementing Regulation 2016/1647. Under Article 1(1) and (3) of that implementing regulation, the Commission reimposed a definitive anti-dumping duty at a rate of 10% for imports of the products at issue manufactured by 14 Vietnamese exporting producers during the period of application of Regulation No 1472/2006 and Implementing Regulation No 1294/2009.

36 On 28 September 2016, the Commission adopted Implementing Regulation 2016/1731. Under Article 1(1) and (3) of that implementing regulation, the Commission reimposed a definitive anti-dumping duty at a rate of 16.5% for imports of the products at issue manufactured by one Chinese exporting producer and at a rate of 10% for those of two Vietnamese exporting producers, during the period of application of Regulation No 1472/2006 and Implementing Regulation No 1294/2009.

The procedure before the General Court and the judgment under appeal

37 By application lodged at the Registry of the General Court on 9 November 2016, the appellants brought the action referred to in paragraph 1 above.

38 By decision of the President of the Third Chamber of the General Court of 14 March 2017, the proceedings were stayed pending the decisions of the Court of Justice closing the proceedings in Cases C‑256/16, Deichmann, C‑612/16, C & J Clark International, and C‑631/16, X.

39 Following delivery of the judgment of 15 March 2018, Deichmann (C‑256/16, EU:C:2018:187), and that of the judgment of 19 June 2019, C & J Clark International (C‑612/16, not published, EU:C:2019:508), the proceedings before the General Court were resumed on 19 June 2019.

40 In support of their action, the appellants put forward five pleas in law, three of which are relevant to the present appeal proceedings. These are the first plea, alleging that the Commission lacked competence to adopt the contested implementing regulations, the third plea, in which a complaint alleging infringement of the principle of proportionality was raised, and the fourth plea, alleging infringement of the principle of non-discrimination.

41 As regards the first plea in law, the General Court held that the Commission was competent to adopt, in August and September 2016, the contested implementing regulations on the basis of Articles 9 and 14 of Regulation 2016/1036, that regulation having taken effect on 20 July 2016.

42 In respect of the complaint alleging infringement of the principle of proportionality, raised in the third plea, the General Court held that the appellants had not specified the reasons why they took the view that the contested implementing regulations had to be classified as manifestly inappropriate in relation to the objective pursued.

43 As regards the plea alleging infringement of the principle of non-discrimination, the General Court examined whether the appellants’ situation was comparable to that of the EU importers which had purchased the products at issue from the five exporting producers concerned by Implementing Decision 2014/149, pursuant to which the Council decided to reject the Commission’s proposal seeking, inter alia, the reimposition of a definitive anti-dumping duty on imports from those five exporting producers.

44 In that regard, the General Court examined the subject matter of the contested implementing regulations, taking into account, inter alia, the judgments of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74), and of 15 March 2018, Deichmann (C‑256/16, EU:C:2018:187), and Implementing Regulation 2016/223, and concluded that the appellants were in different legal and factual situations from those of the EU importers which had purchased the products at issue from the five exporting producers concerned by Implementing Decision 2014/149.

The forms of order sought

45 The appellants claim that the Court should:

– set aside the judgment under appeal;

– annul the contested implementing regulations;

– order the Commission to pay the costs or, in the alternative,

– refer the case back to the General Court and, in that case, reserve the costs.

46 The Commission contends that the Court should:

– dismiss the appeal, and

– order the appellants to pay the costs.

The appeal

47 In support of the appeal, the appellants raise three grounds of appeal. The first ground alleges a failure to examine the essence of the first plea in law, which constitutes a failure to state reasons. The second ground alleges infringement of the principle of proportionality, and the third ground alleges infringement of Implementing Regulation 2016/223 and of the principle that no benefit may be derived from one’s own misconduct.

The first ground of appeal, alleging failure to state reasons

Arguments of the parties

48 In support of the first ground of appeal, the appellants state that Article 3 of Regulation No 37/2014 is as much relevant as Article 9(4) and Article 14(1) of Regulation 2016/1036 in order to determine which institution was competent to adopt the contested implementing regulations. However, according to the appellants, in paragraphs 66 to 71 of the judgment under appeal, the General Court based its assessment in that regard solely on the latter two provisions. Since no ground, even implicit, can be inferred from the judgment under appeal as regards the argument by which the appellants relied before the General Court on an infringement of Article 3 of Regulation No 37/2014, that judgment is, they submit, vitiated by a failure to state reasons.

49 The Commission disputes the merits of the first ground of appeal.

Findings of the Court

50 It has consistently been held that the statement of the reasons on which a judgment of the General Court is based must clearly and unequivocally disclose that court’s reasoning in such a way as to enable the persons concerned to ascertain the reasons for the decision taken and the Court of Justice to exercise its power of review (judgment of 10 April 2014, Areva and Others v Commission, C‑247/11 P and C‑253/11 P, EU:C:2014:257, paragraph 54 and the case-law cited).

51 In the present case, it is apparent from paragraphs 66 to 70 of the judgment under appeal that the General Court rejected the first plea in law, alleging that the Commission lacked competence to adopt the contested implementing regulations, by referring to the principle that European Union acts must be adopted in accordance with the procedural rules in force at the time of their adoption, even in a procedure that was initiated before that date, but is still pending after that date. Thus, the General Court held that proceedings initiated on the basis of Regulation No 384/96 could, as from its repeal by Regulation No 1225/2009, itself repealed by Regulation 2016/1036, no longer be pursued on that basis. The contested implementing regulations could therefore have been legitimately adopted by the Commission in view of the fact that they had been adopted after the entry into force of Regulation 2016/1036 and that Article 9(4) and Article 14(1) of that regulation empower the Commission to impose and to reimpose definitive anti-dumping duties by means of a regulation.

52 Thus, the General Court completed its analysis by observing, in paragraph 71 of the judgment under appeal, that the appellants’ argument that the Commission lacked competence to adopt the contested implementing regulations, pursuant to the transitional rules laid down in Article 3 of Regulation No 37/2014, was irrelevant.

53 It appears that, by rejecting, in paragraph 72 of the judgment under appeal, the first plea in law on the basis of the grounds summarised in paragraph 51 above, the General Court set out clearly and unequivocally the reasons why it found that the Commission was competent to adopt the contested implementing regulations on the basis of Article 9(4) and Article 14(1) of Regulation 2016/1036.

54 Those reasons constitute an explicit reply to the argument that the body competent to adopt the contested implementing regulations was the Council and not the Commission. The General Court thus set out clearly and unequivocally the reasons why it had found that the transitional provisions laid down in Article 3 of Regulation No 37/2014 were not applicable in the present case and that, consequently, the argument which the appellants had derived from those provisions in support of the first plea in law was irrelevant.

55 The appellants are therefore not justified in maintaining that the judgment under appeal is vitiated by a failure to state reasons.

56 Moreover, in so far as the first ground of appeal could be understood as alleging that the findings of the General Court summarised in paragraphs 51 and 52 above constitute an infringement of Article 3 of Regulation No 37/2014, it must be held that it is equally unfounded.

57 As the Commission contends, Article 3 of Regulation No 37/2014 was applicable for as long as the imposition of anti-dumping duties was governed by Regulation No 1225/2009, which Regulation No 37/2014 had amended. However, as from 20 July 2016, the date on which Regulation No 1225/2009 was repealed and Regulation 2016/1036 entered into force, the power to impose such duties has been determined pursuant to the provisions of the latter regulation.

58 In that regard, in accordance with Article 25 of Regulation 2016/1036, that regulation entered into force on 20 July 2016, with the result that it was in force on the respective dates of adoption of the contested implementing regulations, namely 18 August and 13 and 28 September 2016. In addition, Article 9(4) of Regulation 2016/1036 states that, where the facts as finally established show that there is dumping and injury caused thereby, and the European Union interest calls for intervention, a definitive anti-dumping duty is to be imposed by the Commission. Article 14(1) of Regulation 2016/1036 sets out that anti-dumping duties are to be imposed by regulation. Those two provisions, read together, therefore empower the Commission both to ‘impose’ and to ‘reimpose’, after annulment or declaration of invalidity on grounds which may be remedied, anti-dumping duties by adopting a new regulation.

59 It follows that, to the extent that they refer to Article 9 and Article 14 of Regulation 2016/1036, the contested implementing regulations have a legal basis that empowers the Commission to reimpose the anti-dumping duties imposed by Regulation No 1472/2006 and Implementing Regulation No 1249/2009 declared to be invalid (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).

60 By rejecting the first plea on the basis of the same considerations, the General Court did not therefore err in law.

61 Consequently, the first ground of appeal must be rejected.

The second ground of appeal, alleging infringement of the principle of proportionality

Arguments of the parties

62 By the second ground of appeal, the appellants dispute the merits of the General Court’s assessment, in paragraphs 116 to 119 of the judgment under appeal, that, in the light of 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), which confirmed the lawfulness of the Commission’s approach of reimposing the anti-dumping duties imposed by Regulation No 1472/2006 and Implementing Regulation No 1294/2009, the appellants had not specified the reasons why they took the view that the contested implementing regulations should be classified as manifestly inappropriate.

63 In particular, according to the appellants, by taking the view that, in order for them to be regarded as being contrary to the principle of proportionality, the contested implementing regulations would have to lay down measures which are manifestly inappropriate in relation to the objective pursued, the General Court erred in law. In the appellants’ view, the objective pursued by any anti-dumping measure is to protect the EU industry from imports of dumped products where their release for free circulation in the European Union causes injury. In view of the fact that the EU industry was sufficiently protected until 31 March 2011, the date on which the anti-dumping duties imposed in the present case expired without being renewed, reimposition of those duties would not offer any additional protection with regard to future imports into the European Union. By contrast, that reimposition would deprive the importers concerned of all legal protection against any errors of fact and of law made by the Commission after such a long period of judicial and administrative proceedings.

64 The Commission disputes the merits of the second ground of appeal.

Findings of the Court

65 As has been stated in paragraphs 31, 32 and 34 to 36 above, the contested implementing regulations merely reimposed anti-dumping duties at the appropriate rate after having remedied, in accordance with Article 266 TFEU, the illegalities identified in the judgment of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74). That reimposition affects exclusively imports carried out during the period of application of Regulation No 1472/2006 and Implementing Regulation No 1294/2009, namely the period from 7 October 2006 to 31 March 2011 (see, to that effect, judgment of 19 June 2019, C & J Clark International, C‑612/16, not published, EU:C:2019:508, paragraph 66).

66 In particular, first, in order to comply with the obligation to implement the judgment of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74), the Commission was entitled to take the view that the onus was on it to carry out an assessment of the MET or IT claims submitted by the exporting producers concerned with a view to determining whether the anti-dumping duties that applied to them under Regulation No 1472/2006 and Implementing Regulation No 1294/2009 should have been set at rates below those laid down by those regulations. Consequently, the full and immediate repayment of the relevant anti-dumping duties was not necessary (judgments of 15 March 2018, Deichmann, C‑256/16, EU:C:2018:187, paragraphs 68 and 70, and of 19 June 2019, C & J Clark International, C‑612/16, not published, EU:C:2019:508, paragraph 49).

67 Second, the resumption of the administrative proceedings following delivery of the judgment of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74), could legitimately lead to the reimposition of anti-dumping duties with regard to goods released for free circulation during the period from 7 October 2006 to 31 March 2011, which was the period of application of Regulation No 1472/2006 and Implementing Regulation No 1294/2009 (see, to that effect, judgment of 15 March 2018, Deichmann, C‑256/16, EU:C:2018:187, paragraph 78).

68 It follows that that reimposition merely creates an obstacle to the reimbursement of the anti-dumping duties paid by the appellants in respect of the imports carried out between 7 October 2006 and 31 March 2011, so as to specifically maintain, in so far as the substantive examination of the MET or IT claims submitted by the exporting producers concerned justified it, the protection of the EU industry during the period concerned. In doing so, the Commission did not impose on importers any obligation that went beyond the obligations resulting from Regulation No 1472/2006 and Implementing Regulation No 1294/2009, without the illegalities identified in the judgment of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74).

69 The General Court did not therefore err in law in rejecting, in paragraph 119 of the judgment under appeal, the appellants’ complaint alleging infringement of the principle of proportionality. Consequently, the second ground of appeal must be rejected.

The third ground of appeal, alleging infringement of Implementing Regulation 2016/223 and of the principle that no person may derive benefit from his or her own misconduct

Arguments of the parties

70 By the third ground of appeal, the appellants state that, since they were excluded from reimbursement of the duties which they had paid pursuant to Regulation No 1472/2006 and Implementing Regulation No 1294/2009, they were treated less favourably than the other importers in the European Union which had purchased the products at issue from the five exporting producers concerned by Implementing Decision 2014/149, since those importers were able to receive such reimbursement. According to the appellants, by holding that the absence of reimbursement of the duties paid by them pursuant to Regulation No 1472/2006 and Implementing Regulation No 1294/2009 is a consequence of Implementing Regulation 2016/223, the General Court, in paragraphs 127 to 141 of the judgment under appeal, misinterpreted that regulation. It was in fact the contested implementing regulations which, by reimposing the anti-dumping duties subject to the illegalities identified by the Court of Justice, definitively excluded the appellants from receiving reimbursement of the duties previously paid, since Implementing Regulation 2016/223 imposed that consequence only on a provisional basis. However, by ruling that the adoption of Implementing Regulation 2016/233 empowered the Commission to exclude the appellants from reimbursement of the duties granted to other importers which were in a similar situation, the General Court in fact enabled the Commission to derive benefit from its own wrongful conduct.

Findings of the Court

71 Since the appellants claimed, by the fourth plea in law, that they had been subjected to unjustified discriminatory treatment in comparison with that of other importers in a situation similar to theirs, the General Court, in paragraphs 132 to 136 of the judgment under appeal, considered, in essence, that the adoption of Implementing Decision 2014/149, pursuant to which the Council rejected the proposal for an implementing regulation reimposing a definitive anti-dumping duty on imports of certain footwear with uppers of leather originating in the People’s Republic of China and produced by five Chinese exporting producers, constitutes a factor which distinguishes the appellants’ factual and legal situation from that of the importers of footwear originating from those five exporting producers.

72 Furthermore, in paragraphs 137 to 140 of the judgment under appeal, the General Court held that the absence of reimbursement of the anti-dumping duties paid by the appellants in respect of imports during the period from 7 October 2006 to 31 March 2011 was attributable to Implementing Regulation 2016/223, which did not form part of the subject matter of the dispute before it and which would constitute a relevant factor of factual and legal differentiation between the appellants and the other importers on whose treatment the appellants relied.

73 In that regard, it should be noted that the other importers concerned relied on the annulment, by the Court of Justice, of Regulation No 1472/2006 in so far as it concerned five exporting producers, namely Brosmann Footwear (HK), Seasonable Footwear (Zhongshan), Lung Pao Footwear (Guangzhou), Risen Footwear (HK) Co. and Zhejiang Aokang Shoes Co., in order to claim reimbursement of the anti-dumping duties which they had paid in respect of imports of footwear originating from the abovementioned exporting producers during the period from 7 October 2006 to 31 March 2011. That reimbursement was definitively made, since the Council rejected, when it was still competent to do so, the Commission’s proposal for the adoption of an implementing regulation reimposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain footwear with uppers of leather originating from those exporting producers.

74 The appellants relied on the declaration by the Court of Justice that Regulation No 1472/2006 and Implementing Regulation No 1294/2009 were invalid in order to claim reimbursement of the anti-dumping duties which they had paid in respect of imports of footwear produced by other exporting producers during the period from 7 October 2006 to 31 March 2011. However, the appellants were unable to obtain that reimbursement on account, first, of the adoption of Implementing Regulation 2016/223, which provisionally prohibited the customs authorities from making reimbursements on the basis of the judgment of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74), and, second, of the reimposition, under the contested implementing regulations, of anti-dumping duties at the same rates as those provided for in Regulation No 1472/2006 and Implementing Regulation No 1294/2009.

75 The difference in treatment invoked by the appellants is therefore the result of the difference in approach between that of the Council, on the one hand, and that of the Commission, on the other, in the steps to be taken in response to the virtually identical assessments on the basis of which the Court of Justice had annulled Regulation No 1472/2006 and declared invalid that regulation and Implementing Regulation No 1294/2009.

76 Those approaches were set out in Implementing Decision 2014/149, on the one hand, and in Implementing Regulation 2016/223 and in the contested implementing regulations, on the other. It followed from the allocation of the power to impose definitive anti-dumping duties to the Commission as from 20 July 2016 that certain importers were able to benefit from the Council’s approach, whereas others had to bear the consequences of the Commission’s approach.

77 In those circumstances, by employing circular and, therefore, unsuitable reasoning for rejecting in law the plea raised before it, the General Court considered that the legal instruments giving rise to the discriminatory treatment alleged by the appellants constituted factors giving rise to factual and legal differences justifying that treatment.

78 In particular, it is apparent from Article 1 of Implementing Regulation 2016/223 that that implementing regulation merely provisionally prevented the national customs authorities from reimbursing duties paid in accordance with Regulation No 1472/2006 and Implementing Regulation No 1294/2009, which were declared invalid by the Court of Justice in the judgment of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74). By contrast, it was the contested implementing regulations that, by reimposing the duties imposed under Regulation No 1472/2006 and Implementing Regulation No 1294/2009, definitively excluded any reimbursement in favour of the appellants.

79 In other words, even if Implementing Regulation 2016/223 had not been adopted, the appellants would have been in a situation virtually identical to that in which they find themselves today. In that case, the appellants would probably have received reimbursement of the duties paid under Regulation No 1472/2006 and Implementing Regulation No 1294/2009, but would have been called upon once again to pay the same amounts under the contested implementing regulations.

80 Consequently, contrary to what the General Court held, the adoption of Implementing Regulation 2016/223 was irrelevant for the purpose of examining the plea in law alleging infringement of the principle of non-discrimination.

81 It must nonetheless be recalled that, if the grounds of a decision of the General Court reveal an infringement of EU law but the operative part of the judgment can be seen to be well founded on other legal grounds, that infringement is not capable of leading to the annulment of that decision and a substitution of grounds must be made (judgment of 6 November 2018, Scuola Elementare Maria Montessori v Commission, Commission v Scuola Elementare Maria Montessori and Commission v Ferracci, C‑622/16 P to C‑624/16 P, EU:C:2018:873, paragraph 48).

82 That is the position in the present case.

83 First, it is apparent from Article 217(1) of the Customs Code, read in conjunction with Article 221(1) thereof, that the limitation rule laid down in Article 221(3) of that code is not capable of preventing the adoption by the Commission of a regulation imposing or reimposing anti-dumping duties or, a fortiori, the proceeding prior to such adoption being carried out by the Commission, with each of those operations necessarily having to occur before those by which the national competent authorities calculate the amount of duty to be levied pursuant to the regulation concerned and communicate such amount to the debtor (see, to that effect, judgment of 15 March 2018, Deichmann, C‑256/16, EU:C:2018:187, paragraph 83).

84 Thus, in the present case, it is only once the Commission has reimposed, at the appropriate rates, the anti-dumping duties initially imposed by Regulation No 1472/2006 and Implementing Regulation No 1294/2009, which, in the meantime, had been declared invalid by the Court of Justice, that the national customs authorities could determine the corresponding duties and communicate them to debtors (see, to that effect, judgment of 15 March 2018, Deichmann, C‑256/16, EU:C:2018:187, paragraph 84).

85 Subsequently, neither the resumption of the administrative procedure aimed at the potential reimposition of the anti-dumping duties concerned nor, consequently, the actual reimposition of those duties is, as such, contrary to the limitation rule laid down in Article 221(3) of the Customs Code or to an alleged expectation which the operators concerned might have had that no anti-dumping duty would be reimposed.

86 Second, under Article 9(4) of Regulation No 384/96, the substantive provision applicable at the time of the adoption of Regulation No 1472/2006 and Implementing Regulation No 1294/2009, where the facts as finally established show that there is dumping and resultant injury, and the Community interest calls for intervention in accordance with Article 21, a definitive anti-dumping duty ‘shall be imposed’.

87 Consequently, the procedure described in Article 1(2) of Implementing Regulation 2016/223 could lead to the anti-dumping duties not being reimposed only if the Commission found that there was no dumping, resultant injury or EU interest (see, to that effect, judgment of 30 September 2003, Eurocoton and Others v Council, C‑76/01 P, EU:C:2003:511, paragraph 91).

88 In those circumstances, the fact that the Council applied Article 221(3) of the Customs Code in a manner derogating from that set out in paragraphs 83 to 85 above was not such as to require the Commission, on the basis of the principle of equal treatment, to apply that provision in the same way and, in doing so, also to infringe, for the reasons set out in paragraphs 86 and 87 above, Article 9(4) of Regulation No 384/96.

89 In conclusion, although it is apparent from the analysis carried out in paragraphs 71 to 77 above that the grounds on the basis of which the General Court rejected the fourth plea in law are vitiated by an error of law, the fact none the less remains that that fourth plea should in any event have been rejected by the General Court for the reasons set out in paragraphs 83 to 87 above.

90 The third ground of appeal must therefore also be rejected and, consequently, the appeal must be dismissed in its entirety.

Costs

91 In accordance with Article 184(2) of its Rules of Procedure, where the appeal is unfounded, the Court is to make a decision as to costs.

92 Under Article 138(1) of those Rules of Procedure, which applies to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

93 Since the appellants have been unsuccessful and the Commission has applied for costs, the appellants must be ordered to bear their own costs and to pay those incurred by the Commission.

On those grounds, the Court (Tenth Chamber) hereby:

1. Dismisses the appeal;

2. Orders Puma SE, Puma United Kingdom Ltd, Puma Nordic AB, Austria Puma Dassler GmbH, Puma Italia Srl, Puma France SAS, Puma Denmark A/S, Puma Iberia SL and Puma Retail AG to bear their own costs and to pay those incurred by the European Commission.

Jarukaitis Gratsias Csehi

Delivered in open court in Luxembourg on 8 September 2022.





A. Calot Escobar I. Jarukaitis