Case T-340/99

Arne Mathisen AS

v

Council of the European Union

‛Definitive antidumping and countervailing duties — Farmed Atlantic salmon — Action for annulment — Undertaking — Circumvention — Obligation to cooperate — Breach — Principle of proportionality — Claim for compensation’

Judgment of the Court of First Instance (Fourth Chamber, Extended Composition) , 4 July 2002 II-2909

Summary of the Judgment

In the sphere of measures to protect trade the Community institutions enjoy a wide discretion by reason of the complexity of the economic, political and legal situations which they have to examine. It follows that review of assessments of the institutions by the Community judicature must be limited to verifying whether the relevant procedural rules have been complied with, whether the facts on which the contested choice is based have been accurately stated and whether there has been a manifest error of assessment of the facts or a misuse of power. (see paras 53-54)

In matters involving protection against dumping, the Commission has a discretion whether to accept or refuse a price undertaking and may, in particular, refuse a price undertaking if it considers that it will be difficult to monitor its application. A fortiori, a finding that such a breach has actually been committed is sufficient to allow the Commission to withdraw acceptance of the undertaking and to replace it with an antidumping duty and it is not necessary to prove once more the dumping and injury already determined in the course of the investigation which culminated in the undertaking. The position is the same where an exporter whose price undertaking has been accepted does not directly breach the provisions of the undertaking but circumvents them by implementing a business practice which makes it difficult, if not impossible, for him to control the actual price of his exports and therefore, effective compliance by him with the undertaking not to export below the minimum price which he had agreed to observe. That is the case in particular where the implementation of such a practice involves the participation of other traders over whom the exporter involved has no control and who, not being bound by a parallel undertaking, are not subject to monitoring by the Commission either. (see paras 57, 68, 86)

None of the provisions of the basic antidumping and anti-subsidy regulations contain a direct or indirect requirement that the information on which the Commission or the Council bases its assessment of whether an economic operator has committed a breach of his price undertaking must relate to a minimum percentage of his sales. On the contrary, any breach of an undertaking suffices to allow the Commission to withdraw its acceptance of the undertaking and replace it with an antidumping duty. (see para. 80)

By virtue of the principle of proportionality, as expressed in the third paragraph of Article 5 EC, the legality of Community rules is subject to the condition that the means employed must be appropriate to attainment of the legitimate objective pursued and must not go further than is necessary to attain it, and, where there is a choice of appropriate measures, it is necessary, in principle, to choose the least onerous. However, in an area such as the common commercial policy in which the Community legislature has a broad discretion which accords with the political responsibilities given to it by the Treaty, only if a measure is ‘manifestly inappropriate’ having regard to the objective which the competent institution is required to pursue, can its lawfulness be affected. The broad discretion enjoyed by the Community legislature in this area corresponds to the discretion which the Community institutions have when adopting specific antidumping measures pursuant to the basic regulations. Moreover, the principle of proportionality applies to the question whether the amount of antidumping and countervailing duties imposed is appropriate in the light of the injury suffered by the Community industry; it does not, however, apply to the question of the imposition per se of those duties. It follows that review by the Community judicature must be limited, in the sphere of antidumping action, to determining whether the measures adopted by the Community legislature are manifestly inappropriate having regard to the objective pursued. (see paras 112-115, 121)