Case T‑276/13

Growth Energy

and

Renewable Fuels Association

v

Council of the European Union

‛Dumping — Imports of bioethanol originating in the United States — Definitive anti-dumping duty — Action for annulment — Association — Members not directly concerned — Inadmissibility — Countrywide anti-dumping duty — Individual treatment — Sampling — Rights of the defence — Non-discrimination — Duty of diligence’

Summary — Judgment of the General Court (Fifth Chamber), 9 June 2016

Common commercial policy — Protection against dumping — Anti-dumping proceeding — Right of access to non-confidential documents relating to the proceedings — Infringement —Annulment of the contested anti-dumping regulation — Condition — Possibility of the undertaking concerned securing a different result to the administrative procedure in the absence of the said infringement

Acts of the institutions — Statement of reasons — Obligation — Scope — Regulation imposing anti-dumping duties — No obligation on the institution to explain the reasons for the evolution of its position during the administrative procedure

EU law — Principles — Rights of defence — Observance thereof in the context of administrative proceedings — Anti-dumping — Infringement — Conditions — Undertaking concerned better able to ensure its defence in the absence of procedural irregularity

Common commercial policy — Protection against dumping — Fixing of anti-dumping duties — Obligation to impose individual duties on each supplier — Exceptions — Interpretation in the light of the 1994 GATT Anti-Dumping Agreement — Difficulties in establishing an individual export price for a sampled producer which cooperated in the investigation — Exclusion

(Agreement on the implementation of Article VI of the General Agreement on Tariffs and Trade, ‘1994 Anti-dumping Agreement’, Arts 6.10 and 9.2; Council Regulation No 1225/2009, Arts 9(5), and 17(1) and (3))

Common commercial policy — Protection against dumping — Fixing of anti-dumping duties — Obligation to impose individual duties on each supplier — Scope — Interpretation in the light of the 1994 GATT Anti-Dumping Agreement — Imposition of individual duties on sampled exporters or producers who cooperated in the investigation

International agreements — Agreement establishing the World Trade Organization — GATT 1994 — Not possible to invoke WTO agreements to challenge the legality of an EU measure — Exceptions — EU measure intended to ensure its implementation or referring thereto expressly and precisely

Actions for annulment — Natural or legal persons — Interest in bringing proceedings — Need for an actual and current interest — Regulation imposing anti-dumping duties — Interest in bringing an action of a trade association set up to protect and represent its members

Judicial proceedings — Intervention — Objection of inadmissibility not raised by the defendant — Inadmissibility — Absolute bar to proceeding — To be considered of the Court’s own motion

Actions for annulment — Natural or legal persons — Measures of direct and individual concern to them — Individual concern — Criteria — Regulation imposing anti-dumping duties — Whether producers which did not export the product subject to an anti-dumping duty individually affected

Actions for annulment — Natural or legal persons — Measures of direct and individual concern to them — Whether directly concerned — Criteria — Regulation imposing anti-dumping duties — Direct concern of producers which did not export the product subject to an anti-dumping duty

Actions for annulment — Natural or legal persons — Measures of direct and individual concern to them — Action brought by a trade association set up to protect and represent its members — Action brought on an individual basis — Action seeking to safeguard the procedural rights of the association — Admissibility

Actions for annulment — Natural or legal persons — Measures of direct and individual concern to them — Regulation imposing anti-dumping duties — Different duties imposed on different undertakings — Admissibility limited for each undertaking to the provisions concerning it in particular

Actions for annulment — Natural or legal persons — Measures of direct and individual concern to them — Action brought by a trade association set up to protect and represent its members — Action brought as representative of members without the right to vote — Inadmissibility

Actions for annulment — Natural or legal persons — Measures of direct and individual concern to them — Action brought by a trade association set up to protect and represent its members — Admissibility — Conditions — Action brought in parallel by a member — Inadmissibility of the association’s action

See the text of the decision. (see paras 45, 49-51)

See the text of the decision. (see paras 52-55)

See the text of the decision. (see paras 58, 59)

An annulment of a regulation may produce effects vis-à-vis all the members of a professional defence and representation association which has brought an annulment action only in so far as actions by those members would have been admissible. If it were otherwise, a professional association could rely on the standing to bring proceedings of some of its members in order to obtain the annulment of a regulation for the benefit of all its members, including those who do not themselves satisfy the conditions set out in the fourth paragraph of Article 263 TFEU. That would effectively circumvent the rules on the conditions for admissibility of annulment actions. (see paras 60, 61)

Since basic anti-dumping Regulation No 1225/2009 grants procedural guarantees to persons who have been involved in the procedure leading to the adoption of a regulation imposing anti-dumping duties, associations representing the interests of the industry concerned by such a regulation and which have participated in the anti-dumping procedure must be recognised, as interested parties in the procedure, as having standing to bring proceedings for annulment of the said regulation on the ground that they are directly and individually concerned, in so far as their actions for annulment seek to safeguard their procedural rights. The fact that a person is involved in some way or other in the procedure leading to the adoption of an EU measure is capable of distinguishing that person individually in relation to the measure in question only if the applicable EU legislation grants him certain procedural guarantees. (see paras 81, 82, 87)

Producers of a product affected by an anti-dumping duty who are not involved in the exportation of the latter to the EU are directly concerned, within the meaning of the fourth paragraph of Article 263 TFEU, by the regulation establishing the anti-dumping duty where it is established that a significant volume of the product originating from the said producers had been exported on a regular basis to the EU during the investigation period. The admissibility of an action against a regulation imposing anti-dumping duties does not depend on an applicant’s status as a producer or exporter. Since anti-dumping duties are linked to exported products, a producer, even if it is not the exporter of those products, may find itself substantially affected by the imposition of such anti-dumping duties on imports of the product concerned into the EU. Even supposing that exporters bear the anti-dumping duty and it were proven that the marketing chain of the product concerned was interrupted so that they were not able to pass on the anti-dumping duty to the producers, the imposition of an anti-dumping duty changes the legal conditions under which the said product will be marketed on the EU market. Therefore, the legal position of the producers in question on the EU market will, in any event, be directly and substantially affected. In that context, the structure of the contractual arrangements between economic operators in the marketing chain of the product concerned has no bearing on whether a producer of that product is directly concerned by the regulation establishing anti-dumping duties. Moreover, the fact that a producer knows exactly which goods manufactured by it are exported to the EU has no bearing on whether it is directly affected by the regulation establishing anti-dumping duties. (see paras 97, 104, 108, 110, 114, 116, 117)

Producers of a product subject to an anti-dumping duty who are not involved in the export of that product to the EU are individually concerned, within the meaning of the fourth paragraph of Article 263 TFEU, by a regulation establishing an anti-dumping duty where, first, those producers are able to establish that they were identified in the measures adopted by the Commission or the Council or were concerned by the preliminary investigations and, second, their market position is substantially affected by the anti-dumping duty to which the said regulation relates. In that regard, the question of exactly who implemented the dumping practices in question is irrelevant for the purpose of determining whether the producers are individually concerned by a regulation establishing a countrywide anti-dumping duty on the import of the product concerned into the EU. The producers in question suffer from the fact that there is a dumping practices charge even if they themselves have not been charged with such practices. Moreover, it is not a necessary condition that an undertaking — the standing to bring proceedings of which is being examined — be charged with dumping practices in order to conclude that that undertaking is individually concerned. Charging a producer or an exporter with dumping is a factor that may distinguish that producer or exporter individually, but it is not a prerequisite for those economic operators. Furthermore, the fact that the institutions have decided not to use the data provided by the producers concerned in order to calculate an individual dumping margin for them cannot preclude the admissibility of an action brought by those producers. (see paras 122, 134, 135, 139)

As regards the admissibility of an annulment action under Article 263 TFEU, the question whether the applicant has other legal remedies in order to assert his rights has no bearing on the examination of direct and individual concern in relation to the contested measure. (see para. 147)

See the text of the decision. (see para. 157)

See the text of the decision. (see paras 158-160)

Given their nature and purpose, the agreements of the World Trade Organisation (WTO), of which the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (‘the WTO Anti-Dumping Agreement’) forms part, are not in principle among the rules in the light of which the courts of the European Union are to review the legality of measures adopted by the institutions of the European Union. It is only where the EU has intended to implement a particular obligation assumed under the WTO or where the EU measure refers expressly to specific provisions of the WTO agreements that the EU judicature must review the legality of the EU measure in question in the light of the WTO rules. As regards the transposition of the WTO Anti-Dumping Agreement into EU law, it follows from the very adoption of Regulation No 765/2012 amending the basic anti-dumping regulation that the EU legislature considered that, by Article 9(5) of basic anti-dumping Regulation No 1225/2009, the European Union had intended to implement a particular obligation assumed in the context of the WTO contained, in this instance, in Articles 6.10 and 9.2 of the WTO Anti-Dumping Agreement. Given, moreover, that the EU legislature, in adopting Regulation No 765/2012 in order to implement the recommendations and rulings of the WTO disputes settlement body, did not consider it necessary to amend the term ‘imports of a product from all sources found to be dumped and causing injury’ or the terms ‘supplier’ and ‘impracticable’ appearing in Article 9(5) of the basic anti-dumping regulation, it must be concluded that the said terms must be interpreted in a manner that is consistent with Articles 6.10 and 9.2 of the WTO Anti-Dumping Agreement. (see paras 175, 177, 178, 180, 183, 184)

Article 9(5) of basic anti-dumping Regulation No 1225/2009 and Article 9.2 of the WTO Anti-Dumping Agreement lay down that, in principle, an anti-dumping duty is to be imposed individually on each supplier on imports of a product from all sources found to be dumped and causing injury. It is clear from the wording of those provisions that an operator that is not considered to have the status of ‘supplier’ has no right to the imposition of an individual anti-dumping duty. Under WTO law, any exporter or producer included in the sample and who then cooperated with the investigating authority throughout the investigation satisfies the conditions for being considered to be a ‘supplier’ within the meaning of Article 9.2 of the WTO Anti-Dumping Agreement. As regards the provisions of the basic anti-dumping regulation, Article 9(5) of that regulation must be interpreted in a manner that is consistent with the provisions of the WTO Anti-Dumping Agreement. Furthermore, it is also apparent from Article 17(1) and (3) of the basic anti-dumping regulation, interpreted in accordance with WTO law, that, even if producers that were not included in the original sample are entitled to an individual margin calculation, a fortiori, producers that were included in the original sample are so entitled as well. In this connection, the last sentence of Article 9(6) of the basic anti-dumping regulation states that individual duties are to be applied to imports from any exporter or producer which is granted individual treatment, as provided for in Article 17 of that regulation. It follows that, in accordance with the provisions of the basic anti-dumping regulation, any exporter or producer included in the sample of suppliers of the dumped product and who then cooperated with the institutions throughout the investigation satisfies the conditions for being considered to be a ‘supplier’ within the meaning of Article 9(5) of that regulation. (see paras 187, 192-194)

Where, in the context of a dumping investigation, the Commission decides to use sampling, the objective of selecting a sample of exporting producers is to establish as precisely as possible, in a limited investigation, the pressure on prices to which the EU industry is subjected. Therefore, the Commission has the power to alter, at any time, the composition of a sample according to the needs of the investigation. Indeed, no provision in the WTO Anti-Dumping Agreement or in the basic regulation requires the institutions to retain the producers initially sampled in the sample of suppliers of the dumped product if the institutions consider that those producers do not have the status of suppliers or that they do not constitute sources of the imports of the dumped product causing injury. As regards whether an operator ought to be retained in a sample, it must be noted that the Commission enjoys a broad discretion by reason of the complexity of the economic, political and legal situations which it has to examine. (see para. 195)

The term ‘impracticable’ used in Article 9(5) of the basic regulation must be interpreted in a manner that is consistent with the analogous term used in Articles 6.10 and 9.2 of the WTO Anti-Dumping Agreement. Consequently, where the authority uses sampling, the term ‘impracticable’ used in Article 9(5) of the basic regulation allows, in principle, for two exceptions to the determination of individual dumping margins and the imposition of individual anti-dumping duties for operators which have cooperated in the investigation, namely, first, in the case of producers or exporters not included in the sample, apart from those in respect of whom Article 17(3) of the basic regulation provides for an individual margin of dumping, and, second, in the case of operators constituting a single entity. In other words, where the institutions use sampling, in principle, an exception to the determination of individual dumping margins and the imposition of individual anti-dumping duties is possible only in respect of undertakings which do not form part of a sample and which do not otherwise have a right to have their own individual anti-dumping duty. In particular, Article 9(5) of the basic regulation does not allow for any exception to the obligation to impose an individual anti-dumping duty on a sampled producer which cooperated in the investigation where the institutions consider that they are not in a position to establish an individual export price for that producer. Therefore, it follows from Article 9(5) of the basic regulation that, where producers and/or exporters form part of a sample, the institutions are required to specify the anti-dumping duties payable by each supplier. (see paras 232, 233)

See the text of the decision. (see paras 250-252, 269, 278, 296, 307, 338)

Where a regulation imposing definitive anti-dumping duties falls within the general scheme of a series of measures, it cannot be required that its statement of reasons specify the often very numerous and complex matters of fact and law dealt with in the regulation or that the institutions adopt a position on all the arguments relied on by the parties concerned. On the contrary, it is sufficient for the institution that adopted the measure to set out the facts and the legal considerations having decisive importance in the scheme of the contested regulation. Moreover, the obligation to state reasons for anti-dumping measures does not require the institutions to explain why a position which they envisaged at a certain stage of the anti-dumping proceeding turned out to be unfounded. (see paras 253, 289)

See the text of the decision. (see paras 254, 265, 266, 281, 335)