Judgment of the General Court (Fifth Chamber) of 26 September 2012 — LIS v Commission

(Case T-269/10)

‛Competition — Agreements, decisions and concerted practices — Netherlands market in road pavement bitumen — Decision finding an infringement of Article 81 EC — Imputability of the unlawful conduct — Fines — Gravity and duration of the infringement’

1. Common commercial policy — Protection against dumping — Request for reimbursement of anti-dumping duties based on Article 11(8) of Regulation No 384/96 — Subject matter — Challenge to validity of the regulation establishing the definitive duties or request for re-examination of the general data found during previous investigations — Inadmissibility (Regulations No 384/96, Art. 11(8) and No 1225/2009, Art. 11(8)) (see para. 32)

2. Common commercial policy — Protection against dumping — Dumping margin — Determination of the normal value — Imports from non-market economy countries — Grant of the status of undertaking operating in a market economy — Conditions — Cumulative nature — Burden of proof on producers — Assessment of the evidence by the institutions — Judicial review — Limits (Council Regulations No 384/96, Art. 2(7)(a)(b) and (c), and No 1225/2009, Art. 2(7)(a)(b) and (c)) (see paras 37-40)

3. Common commercial policy — Protection against dumping — Individual treatment of exporting undertakings from a non-market economy country — Conditions — Cumulative nature — Burden of proof on the undertaking requesting that treatment (Council Regulations No 384/96, Art. 9(5), second para., and No 1225/2009, Art. 9(5), second para.) (see paras 41-44)

4. Common commercial policy — Protection against dumping — Reimbursement of anti-dumping duties to undertakings importing from a non-market economy country — Burden of proof on the importer — Need to provide the same evidence, concerning normal value and export prices, as that required of an exporter in order to obtain the status of undertaking operating in a market economy or individual treatment (Council Regulations No 384/96, Art. 11(8) and No 1225/2009, Art. 11(8)) (see paras 45, 47, 49-50, 56-58)

5. Common commercial policy — Protection against dumping — Dumping margin — Determination of the normal value — Factor to which regard must primarily be had — Price charged in the ordinary course of trade — Production costs not in themselves decisive for calculating the normal value (Council Regulations No 384/96, Art. 2(1) and No 1225/2009, Art. 2(1)) (see para. 54)

Re:

APPLICATION, principally, for annulment of Commission Decision C(2006) 4090 final of 13 September 2006 relating to a proceeding under Article 81 [EC] (Case COMP/F/38.456 — Bitumen (Netherlands)), and, in the alternative, for reduction of the fine imposed on the applicant by that decision.

Operative part

The Court:

1. Dismisses the action;

2. Orders Total SA to pay the costs.

Judgment of the General Court (Fifth Chamber) of 26 September 2012 — LIS v Commission

(Case T-269/10)

‛Competition — Agreements, decisions and concerted practices — Netherlands market in road pavement bitumen — Decision finding an infringement of Article 81 EC — Imputability of the unlawful conduct — Fines — Gravity and duration of the infringement’

1. Common commercial policy — Protection against dumping — Request for reimbursement of anti-dumping duties based on Article 11(8) of Regulation No 384/96 — Subject matter — Challenge to validity of the regulation establishing the definitive duties or request for re-examination of the general data found during previous investigations — Inadmissibility (Regulations No 384/96, Art. 11(8) and No 1225/2009, Art. 11(8)) (see para. 32)

2. Common commercial policy — Protection against dumping — Dumping margin — Determination of the normal value — Imports from non-market economy countries — Grant of the status of undertaking operating in a market economy — Conditions — Cumulative nature — Burden of proof on producers — Assessment of the evidence by the institutions — Judicial review — Limits (Council Regulations No 384/96, Art. 2(7)(a)(b) and (c), and No 1225/2009, Art. 2(7)(a)(b) and (c)) (see paras 37-40)

3. Common commercial policy — Protection against dumping — Individual treatment of exporting undertakings from a non-market economy country — Conditions — Cumulative nature — Burden of proof on the undertaking requesting that treatment (Council Regulations No 384/96, Art. 9(5), second para., and No 1225/2009, Art. 9(5), second para.) (see paras 41-44)

4. Common commercial policy — Protection against dumping — Reimbursement of anti-dumping duties to undertakings importing from a non-market economy country — Burden of proof on the importer — Need to provide the same evidence, concerning normal value and export prices, as that required of an exporter in order to obtain the status of undertaking operating in a market economy or individual treatment (Council Regulations No 384/96, Art. 11(8) and No 1225/2009, Art. 11(8)) (see paras 45, 47, 49-50, 56-58)

5. Common commercial policy — Protection against dumping — Dumping margin — Determination of the normal value — Factor to which regard must primarily be had — Price charged in the ordinary course of trade — Production costs not in themselves decisive for calculating the normal value (Council Regulations No 384/96, Art. 2(1) and No 1225/2009, Art. 2(1)) (see para. 54)

Re:

APPLICATION, principally, for annulment of Commission Decision C(2006) 4090 final of 13 September 2006 relating to a proceeding under Article 81 [EC] (Case COMP/F/38.456 — Bitumen (Netherlands)), and, in the alternative, for reduction of the fine imposed on the applicant by that decision.

Operative part

The Court:

1. Dismisses the action;