Keywords

Summary



Keywords

1. Actions for annulment – Interest in bringing proceedings – Action brought against a notice of the initiation of a review of anti-dumping or countervailing measures where no action has been brought against the regulation imposing definitive measures following the review – Whether an interest in bringing proceedings is maintained

(Art. 230, fourth para., EC; Council Regulations No 384/96, Art. 11(2), and No 2026/97, Art. 18(1) and (2))

2. Actions for annulment – Natural or legal persons – Measures of direct and individual concern to them – Notice of the initiation of a review of anti-dumping or countervailing measures

(Art. 230, fourth para., EC; Council Regulations No 384/96, Art. 11(2), and No 2026/97, Art. 18(1) and (2))

3. Actions for annulment – Action brought against the Council and the Commission seeking annulment of a notice of the initiation of a review of anti-dumping or countervailing measures – Action directed against the Council – Inadmissible

(Art. 230 EC; Council Regulations No 384/96, Art. 11(6), and No 2026/97, Art. 22(2))

4. Common commercial policy – Protection against dumping or subsidising by non-member countries – Review procedure – Rules contained in the anti-dumping and anti-subsidy agreements annexed to the 1994 WTO Agreement

(Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade, ‘1994 Anti-dumping Code’, Article 11.3; Agreement on Subsidies and Countervailing Measures of 1994, Art. 21.3; Council Regulations No 384/96, recital 5 and Art. 11(2), and No 2026/97, recitals 6 and 7 and Art. 18(1))

5. Common commercial policy – Protection against dumping or subsidising by non-member countries – Review procedure – Final deadline for initiating a review

(Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade, ‘1994 Anti-dumping Code’, Article 11.3; Agreement on Subsidies and Countervailing Measures of 1994, Art. 21.3; Council Regulations No 384/96, Art. 11(2), and No 2026/97, Art. 18(1))

Summary

1. An undertaking which produces and exports goods covered by a notice of the initiation of a review of anti-dumping measures or countervailing measures due to expire retains an interest in seeking the annulment of that notice even where the regulation imposing the definitive anti-dumping duties or countervailing duties following the review was not challenged by that undertaking within the time‑limits laid down in the fifth paragraph of Article 230 EC.

The autonomous legal effects produced by the review notice, that is to say, the maintenance of the anti-dumping or countervailing measures due to expire, are not affected by the new measures imposed by the regulation adopted following the review. Accordingly, the annulment of the review notice may have legal consequences to the advantage of such an undertaking, because any illegality found by the Community judicature could provide the basis for an action for damages. The undertaking also retains an interest in seeking annulment of the contested review notice in order to prevent the alleged unlawfulness of that measure from recurring in the future.

(see paras 37, 39, 41-43)

2. An undertaking which is identified in regulations imposing anti-dumping or countervailing measures as a producer and exporter whose undertakings have been accepted during the administrative proceeding is individually concerned, for the purposes of the fourth paragraph of Article 230 EC, by notices of the initiation of a review of those measures, since such notices directly affect its legal situation and leave no discretion to the national authorities entrusted with the task of implementing them. The undertaking is therefore entitled to seek the annulment of such review notices even if it is not the addressee.

(see paras 45-47, 49)

3. An action brought against the Council and the Commission and seeking the annulment of a notice of the initiation of a review of a Council regulation imposing definitive anti-dumping duties or countervailing duties which are due to expire must be declared inadmissible in so far as it is directed against the Council. Since, pursuant to Article 11(6) of the Basic Anti‑Dumping Regulation (No 384/96) and Article 22(2) of Regulation No 2026/97 on protection against subsidised imports from countries not members of the European Community, such notices are to be adopted by the Commission, an action seeking the annulment of such a notice is admissible only in so far as it is directed against that institution.

(see paras 50-51)

4. It is clear from recital 5 in the preamble to the Basic Anti‑Dumping Regulation (No 384/96) and from recitals 6 and 7 in the preamble to Regulation No 2026/97 on protection against subsidised imports from countries not members of the European Community that the purpose of those regulations is, inter alia, to transpose into Community law as far as possible the new and detailed rules contained in the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade (‘1994 Anti-dumping Code’) and in the Agreement on Subsidies and Countervailing Measures of 1994, annexed to the Agreement establishing the World Trade Organisation (WTO), which include, in particular, those relating to the duration and review of anti-dumping and countervailing measures, with a view to ensuring a proper and transparent application of those rules. The Community therefore adopted those regulations in order to satisfy its international obligations under the above agreements. Thus, by Article 11(2) of the Basic Anti‑Dumping Regulation, it intended to implement the specific obligations laid down in Article 11.3 of the Anti-Dumping Agreement, and by Article 18(1) of the Basic Anti‑Subsidy Regulation, it intended to implement the particular obligations laid down in Article 21.3 of the Anti-Subsidy Agreement.

It follows that the above provisions of the Basic Anti‑Dumping and Anti‑Subsidy Regulations must be interpreted, in so far as is possible, in the light of the corresponding provisions of the Anti‑Dumping and Anti‑Subsidy Agreements.

(see paras 88-91)

5. Neither the Basic Anti‑Dumping Regulation (No 384/96) nor Regulation No 2026/97 on protection against subsidised imports from countries not members of the European Community contains any provision which states explicitly the latest point in time at which an expiry review of anti‑dumping or countervailing measures must be initiated. However, it is quite clear from the broad logic of the first subparagraph of Article 11(2) of Regulation No 384/96 and Article 18(1) of Regulation No 2026/97 that such a review must be initiated, at the latest, before the measure to which it relates expires.

Article 11.3 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade (‘1994 Anti-dumping Code’) and Article 21.3 of the Agreement on Subsidies and Countervailing Measures of 1994, annexed to the Agreement establishing the World Trade Organisation (WTO), in the light of which the provisions of Regulations Nos 384/96 and 2026/97 must, so far as is possible, be interpreted, specify only the time-limits within which the review must be ‘initiated’ and cannot be interpreted as imposing an obligation on the contracting parties to undertake a review of the anti-dumping or countervailing measures concerned at the latest the day before the day on which those measures expire. On the contrary, legislation of a contracting party which permits a review to be initiated right up until the last minute of the period of validity of the measures to which it relates must be regarded as being in conformity with Article 11.3 of the Anti-Dumping Agreement and Article 21.3 of the Anti-Subsidy Agreement. In view of the aim of those provisions, it is necessary for the review to be initiated, at the latest, before the automatic expiry of those measures. In so far as those provisions lay down an absolute deadline for the initiation of a review, they refer to the time at which the duties concerned – which must still be in force at the time the review is initiated – expire. It follows that an expiry review of anti-dumping or countervailing measures which is initiated before midnight on the last day of the normal period for their application must be regarded as being in conformity with Article 11.3 of the Anti-Dumping Agreement and Article 21.3 of the Anti-Subsidy Agreement.

That conclusion cannot be called into question by the alleged breach of the principle of legal certainty, because the first subparagraph of Article 11(2) of Regulation No 384/96 and Article 18(1) of Regulation No 2026/97 – even if those provisions are interpreted in the light, respectively, of Article 11.3 of the Anti-Dumping Agreement and Article 21.3 of the Anti-Subsidy Agreement – state clearly and precisely that a review of anti-dumping and countervailing duties must be undertaken before the expiry of those duties; nor can it be called into question by the alleged breach of the principle of sound administration because, where a Community institution is allowed a set length of time in which to take certain action, it does not infringe the principle of sound administration if it does not act until the last day of the period of time allowed.

(see paras 93, 105-106, 110, 114, 117)