Case T‑431/12

Distillerie Bonollo SpA and Others

v

Council of the European Union

(Dumping — Imports of tartaric acid originating in China — Modification of the definitive anti-dumping duty — Partial interim review — Action for annulment — Direct and individual concern — Admissibility — Determination of the normal value — Constructed normal value — Change in methodology — Individual treatment — Article 2(7)(a) and Article 11(9) of Regulation (EC) No 1225/2009 (now Article 2(7)(a) and Article 11(9) of Regulation (EU) 2016/1036) — Temporal adjustment of effects of annulment)

Summary — Judgment of the General Court (Eighth Chamber, Extended Composition), 3 May 2018

Common commercial policy — Protection against dumping — Dumping margin — Determination of the normal value — Imports from non-market economy countries — Recourse to the constructed value — Obligation to apply, in the context of a review, the method used in the initial investigation

Action for annulment — Natural or legal persons — Measures of direct and individual concern to them — Whether directly concerned — Criteria — Anti-dumping regulation adopted following a request for a partial interim review submitted by competing EU producers — Whether those competing producers are directly concerned

In order to ascertain whether an applicant is directly concerned by a European Union measure, that condition requires that that measure must directly affect the legal situation of the applicant on the one hand, and there must be no discretion left to the addressees of that measure who are responsible for its implementation, on the other, that implementation being purely automatic and resulting from EU rules alone without the application of other intermediate rules. In the case-law, actions for annulment brought by individuals against European Union acts have repeatedly been admitted when the effects of those acts on the respective applicants are not legal, but primarily factual, in particular because the applicants are directly affected in their capacity as market participants in competition with other market participants. In so far as the applicants triggered the partial interim review procedure, and as the measures adopted at the end of that procedure were intended to offset the dumping that caused the injury they have suffered as competing producers operating on the same market as the exporting producers in question, they are directly concerned by the regulation terminating the partial interim review procedure. (see paras 49, 52, 59)

In order to ascertain whether an applicant is individually concerned, persons other than those to whom a measure is addressed may claim to be concerned within the meaning of the fourth paragraph of Article 263 TFEU only if that measure affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of these factors distinguishes them individually just as in the case of the person addressed. Regarding, more specifically, the sphere of anti-dumping, while it is true that, in the light of the criteria laid down in the fourth paragraph of Article 263 TFEU, regulations imposing anti-dumping duties are legislative in their nature and scope, inasmuch as they are of general application for the traders concerned, it is nonetheless not inconceivable that some of the provisions of those regulations may be of individual concern to certain traders. In order to assess whether an applicant’s market position has been affected, the EU judicature relies on a series of factors such as whether the structure of the market is concentrated or fragmented, the market position of the applicant and the competitor in question in absolute and relative terms, and the extent of the contested measure’s impact on the applicant’s activities. It may be deduced from the EU judicature’s assessment of this range of factors that the closer the competitive relationship between the applicant and the competitor in question, either because there is a reduced number of active operators on the market, or because the undertaking in question is the applicant’s main competitor, and the more significant the negative consequences are for the applicant, the more appropriate it is to conclude that it is individually concerned by the contested measure. EU producers who are competitors of producers in a third country and who have actively participated in the administrative procedure and contributed significantly to the conduct and, accordingly, to the outcome thereof, are individually concerned by a regulation terminating a partial interim review procedure initiated at their request, especially where their market position has been substantially affected. (see paras 74, 75, 80, 81, 84, 88, 91)

An action for annulment brought by a natural or legal person is inadmissible unless the applicant has an interest in seeing the contested measure annulled. Where the aim of an action is not to annul the effects of the contested measure but to replace them by a more stringent measure imposing a higher anti-dumping duty, the EU judicature may exercise the power conferred on it by the second paragraph of Article 264 TFEU in order to maintain the anti-dumping duty imposed by the regulation that is being contested until the competent institutions have adopted the measures needed to comply with the judgment. In those circumstances, competing EU producers have an interest in seeking annulment of a regulation very slightly increasing anti-dumping duties and adopted following a request for a partial interim review submitted by those competing producers, which is capable of procuring them an advantage. The applicants may also retain an interest in seeking the annulment of an act of an EU institution in order to prevent its unlawfulness from recurring in the future. (see paras 101, 103, 104, 108)

The rules for calculating normal value are set out in Article 2(1) to (7) of Regulation No 1225/2009 on protection against dumped imports from countries not members of the European Community (now Article 2(1) to (7) of Regulation 2016/1036). For imports from a non-market economy country which is a member of the World Trade Organisation (WTO) at the date of the initiation of the investigation, normal value is to be determined, in principle, using the specific method laid down in Article 2(7)(a) of Regulation No 1225/2009. According to that method, normal value is to be determined, inter alia, on the basis of the price or constructed value in a market economy third country — the analogue country. By way of exception, under Article 2(7)(b) of Regulation No 1225/2009, as regards imports from non-market economy countries, normal value is to be determined in accordance with Article 2(1) to (6) of that regulation where it is shown that market economy conditions prevail for the producer or producers concerned. It should be borne in mind that Article 2(1) to (6) of Regulation No 1225/2009 contains the rules to be applied when determining normal value for imports from market economy countries. Furthermore, it is apparent from Article 11(9) of Regulation No 1225/2009 that, as a general rule, in the context of a review, the EU institutions are required to apply the same method, including when comparing the export price and the normal value, as the method used in the initial investigation which led to the duty being imposed. That provision provides for an exception allowing the institutions to apply a different method from that used in the initial investigation insofar as circumstances have changed. It follows from that same provision that the method applied must be consistent with Article 2 of Regulation No 1225/2009. In addition, it is not sufficient that a new method be more appropriate than the former method, where that former method is consistent with Article 2 of Regulation No 1225/2009. (see paras 124, 125, 127, 138)

It is logical that, where several exporting producers are granted market economy treatment (MET), the normal value will be different for each, given that it is calculated on the basis of their respective data. By contrast, there is no reason for the normal value to differ in the case of several exporting producers that are denied MET, given that, in that situation, the calculations of the normal value are carried out on the basis of data from an analogue country and thus irrespective of their respective data. In that second situation, an exporting producer may always apply for individual treatment, which means that an individual dumping margin will be calculated by comparing the normal value, which is the same for all, with its own export prices, instead of comparing the normal value with the industry’s export prices. (see para. 141)