Judgment of the General Court (Third Chamber) of 9 June 2021 –

Puma and Others v Commission

(Case T‑781/16)

(Dumping – Imports of footwear with uppers of leather originating in China and Vietnam – Implementation of the judgment of the Court of Justice in Joined Cases C‑659/13 and C‑34/14 – Reinstitution of a definitive anti-dumping duty and definitive collection of the provisional duty – Resumption of the proceeding which preceded the regulations declared invalid – Market economy treatment (MET) – Individual treatment (IT) – Desk analysis – Absence of a verification visit or a request for additional information – Non-reimbursement of anti-dumping duties – Legal basis – Legal certainty – Legitimate expectations – Non-retroactivity – Proportionality – Misuse of powers – Non-discrimination – Previous decision-making practice)

1. Action for annulment – Natural or legal persons – Measures of direct and individual concern to them – Whether directly concerned – Criteria – Regulation imposing anti-dumping duties – Whether an importer of the product concerned directly affected (Art. 263, fourth para., TFEU; Commission Regulations 2016/1395, 2016/1647 and 2016/1731) (see paras 46, 47)

2. Action for annulment – Natural or legal persons – Measures of direct and individual concern to them – Individual concern – Criteria – Regulation imposing anti-dumping duties – Action brought by an undertaking identifiable at the time the regulation adopted and forming part of a restricted circle of economic operators – Admissibility (Art. 263, fourth para., TFEU; Commission Regulations 2016/1395, 2016/1647 and 2016/1731) (see paras 48-51, 57-59)

3. Action for annulment – Natural or legal persons – Measures of direct and individual concern to them – Regulation imposing anti-dumping duties – Admissibility of the action of one of the applicants – No requirement to examine the admissibility of the action in respect of the other applicants belonging to the same group of companies (Art. 263, fourth para., TFEU; Commission Regulations 2016/1395, 2016/1647 and 2016/1731) (see para. 61)

4. Common commercial policy – Protection against dumping – Anti-dumping proceeding – Judgment declaring regulations imposing anti-dumping duties invalid – Adoption of a regulation seeking to implement the declaration of invalidity – Adoption of that regulation on the basis of the Basic Anti-dumping Regulation 2016/1036 – Whether permissible (Art. 266 TFEU; European Parliament and Council Regulation 2016/1036, Arts 9 and 14) (see paras 66-71, 76)

5. Acts of the institutions – Statement of reasons – Obligation – Scope – Reference to the legal basis of a measure (Art. 296, second para., TFEU) (see paras 77, 78)

6. Common commercial policy – Protection against dumping – Anti-dumping proceeding – Judgment declaring regulations imposing anti-dumping duties invalid – Adoption of a regulation seeking to implement the declaration of invalidity – Reinstitution of the anti-dumping duties on importations made during the application period of the invalidated regulations – No breach of the principles of legal certainty and non-retroactivity (European Parliament and Council Regulation 2016/1036, Art. 10(1); Council Regulation No 384/96, Art. 10(1)) (see paras 87-99)

7. Common commercial policy – Protection against dumping – Discretion of the institutions – Change of approach as regards certain importers becoming subject to reinstituted anti-dumping duties – Whether permissible – Not possible for traders to invoke the principle of the protection of legitimate expectations (see paras 102-105, 143, 160)

8. Common commercial policy – Protection against dumping – Anti-dumping proceeding – Judgment declaring regulations imposing anti-dumping duties invalid – Adoption of a regulation seeking to implement the declaration of invalidity – Discretion of the institutions – Scope – Judicial review – Limits (Art. 266 TFEU; Commission Regulations 2016/1395, 2016/1647 and 2016/1731) (see paras 116, 117)

9. Common commercial policy – Protection against dumping – Scope of the obligation on the Commission to examine for accuracy the information supplied by the interested parties – Information supplied in the context of the grant of market economy treatment – Included – No obligation to carry out a visit at the premises of the undertaking concerned (Council Regulation No 384/96, Arts 2(7)(b), 6(8), 9(5) and 16(1)) (see paras 152-154)

10. Common commercial policy – Protection against dumping – Anti-dumping proceeding – Rights of the defence – Obligation of the institutions to provide information – Application to a company which did not participate in the investigation procedure and is not related to any exporting producer in the country under investigation – Not included (Council Regulation No 384/96, Art. 2(10)) (see para. 162)

Re:

Action under Article 263 TFEU for the annulment of (i) 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); (ii) 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); and (iii) 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).

Operative part

The Court:

1. Dismisses the action;