Judgment of the General Court (First Chamber) of 18 November 2015 —

Nu Air Polska v Commission

(Case T‑75/12)

‛Dumping — Imports of certain compressors originating in China — Partial refusal to refund the anti-dumping duties paid — Determination of the export price — Deduction of anti-dumping duties — Adjustment of the temporal effects of an annulment’

1. Judicial proceedings — Production of evidence — Time-limit — Evidence lodged out of time — Conditions (Rules of Procedure of the General Court (1991), Arts 46(1) and 48(1)) (see paras 28-30)

2. Common commercial policy — Protection against dumping — Reimbursement of anti-dumping duties — Calculation of the actual dumping margin — Determination of the export price — Recourse to a constructed export price — Adjustments — Non-deduction of the amount of anti-dumping duties paid — Condition — Anti-dumping duties passed on to the resale prices to the first independent buyer in the Union — Choice of the method of analysis — Discretion of the institutions — Judicial review — Limits (Council Regulation No 384/96, Arts 2 and 11(10), as amended by Regulation No 1225/2009) (see paras 53, 63-67)

3. Common commercial policy — Protection against dumping — Dumping margin — Determination of the export price — Recourse to a constructed export price — Conditions — Adjustments — Automatic application (Council Regulation No 384/96, Art. 2(9), as amended by Regulation No 1225/2009) (see paras 55-57)

4. Common commercial policy — Protection against dumping — Reimbursement of anti-dumping duties — Calculation of the actual dumping margin — Determination of the export price — Recourse to a constructed export price — Adjustments — Non-deduction of the amount of anti-dumping duties paid — Condition — Anti-dumping duties passed on to the resale prices to the first independent buyer in the Union — Analysis product control number by product control number (Council Regulation No 384/96, recital 20 and Art. 11(10), as amended by Regulation No 1225/2009) (see paras 72-74, 76, 96, 114)

5. Common commercial policy — Protection against dumping — Reimbursement of anti-dumping duties — Calculation of the actual dumping margin — Determination of the export price — Recourse to a constructed export price — Adjustments — Interpretation in the light of the 1994 GATT Anti-Dumping Agreement — Non-deduction of the amount of anti-dumping duties paid — Exception — Restrictive interpretation (Agreement on the implementation of Article VI of the General Agreement on Tariffs and Trade ‘1994 Anti-dumping Agreement’, Arts 2.4 and 9.3.3; Council Regulation No 384/96, Arts 2(9), second para., and 11(10), as amended by Regulation No 1225/2009) (see paras 81, 82, 86-88, 94, 95)

6. Common commercial policy — Protection against dumping — Reimbursement of anti-dumping duties — Calculation of the actual dumping margin — Determination of the export price — Recourse to a constructed export price — Adjustments — Non-deduction of the amount of anti-dumping duties paid — Condition — Assessment on a case-by-case basis — Previous or subsequent practice of the institutions — No effect (Council Regulation No 384/96, Art. 11(10), as amended by Regulation No 1225/2009) (see paras 121-123)

7. Common commercial policy — Protection against dumping — Reimbursement of anti-dumping duties — Calculation of the actual dumping margin — Determination of the export price — Recourse to a constructed export price — Adjustments — Non-deduction of the amount of anti-dumping duties paid — Choice of the method of analysis — Obligation to use a method consistent with that adopted for the purposes of determining the constructed export price and the actual dumping margin (Council Regulation No 384/96, Arts 2(9) and (11), and 11(10), as amended by Regulation No 1225/2009) (see paras 137-140, 142-144, 147)

8. Common commercial policy — Protection against dumping — Reimbursement of anti-dumping duties — Calculation of the actual dumping margin — Determination of the export price — Recourse to a constructed export price — Adjustments — Non-deduction of the amount of anti-dumping duties paid — Proof that the said amount passed on at the importer’s expense (Council Regulation No 384/96, Art. 11(10), as amended by Regulation No 1225/2009) (see paras 151, 152)

9. Actions for annulment — Judgment annulling a measure — Effects — Limitation by the Court — Partial annulment of a decision partially refusing repayment of anti-dumping duties unduly paid — No need provisionally to maintain the effects of the decision to avoid the obligation to pay back all the sums repaid (Art. 264 TFEU) (see paras 162-164)

Re:

ACTION for the partial annulment of Commission Decisions C(2011) 8826 final, C(2011) 8803 final and C(2011) 8801 final of 6 December 2011 concerning applications for a refund of anti-dumping duties paid on imports of certain compressors originating in the People’s Republic of China, and, in the event that the General Court should annul those decisions, for the maintenance in force of the effects of those decisions until the Commission has adopted the measures necessary to comply with the judgment of the General Court in this case.

Operative part

The Court:

1. Annuls Article 1 of Commission Decisions C(2011) 8826 final, C(2011) 8803 final and C(2011) 8801 final of 6 December 2011 concerning applications for a refund of anti-dumping duties paid on imports of certain compressors originating in the People’s Republic of China in so far as that article does not grant Nu Air Polska sp. z o.o. a refund of the anti-dumping duties unduly paid beyond the amounts referred to therein;

2. Dismisses the action as to the remainder;