Judgment of the Court (Third Chamber) of 15 November 2012 – Zhejiang Aokang Shoes v Council

(Case C‑247/10 P)

‛Appeal — Dumping — Regulation (EC) No 1472/2006 — Imports of certain footwear with uppers of leather originating in China and Vietnam — Regulation (EC) No 384/96 — Article 2(7)(b) — Market economy treatment — Article 9(6) — Individual treatment — Article 17(3) — Sampling — Article 20(5) — Rights of the defence’

1. Common commercial policy — Protection against dumping — Dumping margin — Determination of the normal value — Grant of market economy treatment — Conditions — Burden of proof on producers — Assessment of the evidence incumbent on the institutions — Judicial review — Limits (Council Regulation 384/96, as amended by Regulation No 2117/2005, Art. 2(1) to (7)) (see paras 22-24)

2. Common commercial policy — Protection against dumping — Dumping margin — Determination of the normal value — Grant of market economy treatment — Determination by sampling of the traders which may be granted market economy treatment — Obligation on the Commission to examine applications from traders not included in the sample (Council Regulation No 384/96, as amended by Regulation No 2117/2005, Art. 2(7)(b) and (c), first para., and 17, and No 1472/2006) (see paras 28-34, 36)

3. Appeals — Appeal founded — Judgment to be given on the substance by the appeal court — Condition — Whether the state of the proceedings permits final judgment to be given (Statute of the Court of Justice, Art. 61) (see para. 35)

4. Actions for annulment — Judgment annulling a measure — Effects — Limitation by the Court — Judgment annulling a regulation imposing definitive anti‑dumping duties — Financial implications for the European Union’s budget resulting, in reality, from the retroactive interpretation of the basic regulation in an earlier judgment — No limitation of the effects in time of the annulment decision (Art. 264, second para, TFEU) (see paras 38-40)

Re:

Appeal lodged against the judgment of the General Court (Eighth Chamber) of 4 March 2010 in Joined Cases T‑407/06 and T‑408/06 Zhejiang Aokang Shoes and Wenzhou Taima Shoes v Council, by which the General Court dismissed an action for the annulment in part of Council Regulation (EC) No 1472/2006 of 5 October 2006 imposing a definitive anti-dumping duty and collecting definitely the provisional duty imposed on imports of certain footwear with uppers of leather originating in the People’s Republic of China and Vietnam (OJ 2006 L 275, p. 1).

Operative part

The Court:

1. Sets aside the judgment of the General Court of the European Union of 4 March 2010 in Joined Cases T‑407/06 and T‑408/06 Zhejiang Aokang Shoes and Wenzhou Taima Shoes v Council;

2. Annuls Council Regulation (EC) No 1472/2006 of 5 October 2006 imposing a definitive anti-dumping duty and collecting definitely the provisional duty imposed on imports of certain footwear with uppers of leather originating in the People’s Republic of China and Vietnam in so far as it concerns Zhejiang Aokang Shoes Co. Ltd;

3. Orders the Council of the European Union to pay the costs incurred by Zhejiang Aokang Shoes Co. Ltd both at first instance and in connection with the present proceedings;

4. Orders the European Commission to bear its own costs, both at first instance and in connection with the present proceedings.

Judgment of the Court (Third Chamber) of 15 November 2012 – Zhejiang Aokang Shoes v Council

(Case C‑247/10 P)

‛Appeal — Dumping — Regulation (EC) No 1472/2006 — Imports of certain footwear with uppers of leather originating in China and Vietnam — Regulation (EC) No 384/96 — Article 2(7)(b) — Market economy treatment — Article 9(6) — Individual treatment — Article 17(3) — Sampling — Article 20(5) — Rights of the defence’

1. Common commercial policy — Protection against dumping — Dumping margin — Determination of the normal value — Grant of market economy treatment — Conditions — Burden of proof on producers — Assessment of the evidence incumbent on the institutions — Judicial review — Limits (Council Regulation 384/96, as amended by Regulation No 2117/2005, Art. 2(1) to (7)) (see paras 22-24)

2. Common commercial policy — Protection against dumping — Dumping margin — Determination of the normal value — Grant of market economy treatment — Determination by sampling of the traders which may be granted market economy treatment — Obligation on the Commission to examine applications from traders not included in the sample (Council Regulation No 384/96, as amended by Regulation No 2117/2005, Art. 2(7)(b) and (c), first para., and 17, and No 1472/2006) (see paras 28-34, 36)

3. Appeals — Appeal founded — Judgment to be given on the substance by the appeal court — Condition — Whether the state of the proceedings permits final judgment to be given (Statute of the Court of Justice, Art. 61) (see para. 35)

4. Actions for annulment — Judgment annulling a measure — Effects — Limitation by the Court — Judgment annulling a regulation imposing definitive anti‑dumping duties — Financial implications for the European Union’s budget resulting, in reality, from the retroactive interpretation of the basic regulation in an earlier judgment — No limitation of the effects in time of the annulment decision (Art. 264, second para, TFEU) (see paras 38-40)

Re:

Appeal lodged against the judgment of the General Court (Eighth Chamber) of 4 March 2010 in Joined Cases T‑407/06 and T‑408/06 Zhejiang Aokang Shoes and Wenzhou Taima Shoes v Council, by which the General Court dismissed an action for the annulment in part of Council Regulation (EC) No 1472/2006 of 5 October 2006 imposing a definitive anti-dumping duty and collecting definitely the provisional duty imposed on imports of certain footwear with uppers of leather originating in the People’s Republic of China and Vietnam (OJ 2006 L 275, p. 1).

Operative part

The Court:

1. Sets aside the judgment of the General Court of the European Union of 4 March 2010 in Joined Cases T‑407/06 and T‑408/06 Zhejiang Aokang Shoes and Wenzhou Taima Shoes v Council;

2. Annuls Council Regulation (EC) No 1472/2006 of 5 October 2006 imposing a definitive anti-dumping duty and collecting definitely the provisional duty imposed on imports of certain footwear with uppers of leather originating in the People’s Republic of China and Vietnam in so far as it concerns Zhejiang Aokang Shoes Co. Ltd;

3. Orders the Council of the European Union to pay the costs incurred by Zhejiang Aokang Shoes Co. Ltd both at first instance and in connection with the present proceedings;