COMMISSION STAFF WORKING DOCUMENT Compliance with the judgments of the Court of Justice of 2 February 2012 in Case C-249/10 P Brosmann and of 15 November 2012 in Case C-247/10P Zhejiang Aokang Accompanying the document Proposal for a COUNCIL IMPLEMENTING REGULATION Re-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 produced by Brosmann Footwear (HK) Ltd, Seasonable Footwear (Zhongshan) Ltd, Lung Pao Footwear (Guangzhou) Ltd, Risen Footwear (HK) Co Ltd and Zhejiang Aokang Shoes Co. Ltd
Date: 2014-02-19
Institutions: European Commission
Subjects: China, anti-dumping duty, footwear industry, import (EU), judgment of the Court (EU), leather, originating product













EUR-Lex - 52014SC0046 - EN











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52014SC0046

COMMISSION STAFF WORKING DOCUMENT Compliance with the judgments of the Court of Justice of 2 February 2012 in Case C-249/10 P Brosmann and of 15 November 2012 in Case C-247/10P Zhejiang Aokang Accompanying the document Proposal for a COUNCIL IMPLEMENTING REGULATION Re-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 produced by Brosmann Footwear (HK) Ltd, Seasonable Footwear (Zhongshan) Ltd, Lung Pao Footwear (Guangzhou) Ltd, Risen Footwear (HK) Co Ltd and Zhejiang Aokang Shoes Co. Ltd /* SWD/2014/046 final */









COMMISSION STAFF WORKING DOCUMENT
Compliance with the judgments of the Court
of Justice of 2 February 2012 in Case C-249/10 P Brosmann and of 15 November
2012 in Case C-247/10P Zhejiang Aokang
Accompanying the document
Proposal for a COUNCIL IMPLEMENTING
REGULATION
Re-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 produced by Brosmann Footwear (HK) Ltd, Seasonable
Footwear (Zhongshan) Ltd, Lung Pao Footwear (Guangzhou) Ltd, Risen Footwear
(HK) Co Ltd and Zhejiang Aokang Shoes Co. Ltd
(1)                   
In its judgments of 2 February 2012 in Case
C-249/12 P Brosmann[1]
and of 15 November 2012 in Case C-247/10 P Zhejiang Aokang[2] (hereinafter: the
judgments), the Court has annulled Council Regulation (EC) No 1472/2006 imposing
a definitive anti-dumping duty and collecting definitely the provisional duty
imposed on imports of certain footwear with upper leather originating in the People's
Republic of China and Vietnam[3]
in so far as it relates to the appellants in those cases.
(2)                   
In the part of the judgment where it ruled on
the substance of the action at first instance, the Court held: “[…] the
Commission ought to have examined the substantiated claims submitted to it by
the appellants pursuant to Article 2(7)(b) and (c) of the basic regulation for
the purpose of claiming MET in the context of the anti-dumping proceeding
[which is] the subject of the contested regulation. It must next be found that
it cannot be ruled out that such an examination would have led to a definitive
anti-dumping duty being imposed on the appellants other than the 16.5% duty
applicable to them pursuant to Article 1(3) of the contested regulation. It is
apparent from that provision that a definitive anti-dumping duty of 9.7% was
imposed on the only Chinese trader in the sample which obtained MET. […H]ad the
Commission found that the market economy conditions prevailed also for the
appellants, they ought, when the calculation of an individual dumping margin
was not possible, also to have benefited from the same rate”.[4]
(3)                   
Article 266 of the Treaty on the Functioning of
the European Union (hereinafter: TFEU) provides that the institution whose act
has been declared void shall be required to take the necessary measures to
comply with the Court's judgments. That provision reflects the fact that under
Union law, the Court can normally[5]
not substitute itself to the investigating authority, but only has the power to
remand a case to that authority so that it can adopt a new act conform to the
Court's judgment. That also explains why the judgements do not contain an
explicit remand of the Regulation to the institutions, as that mechanism is
provided for in a general way in Article 266 itself.
(4)                   
In the present case, the Court held that the
Commission ought to have examined the substantiated claims for MET[6] submitted by the
appellants pursuant to Article 2(7)(b) and (c) of the basic Regulation[7]. It also held that the
Council ought to have, if the appellants' MET claims were justified and if the
institutions did not have time to investigate fully whether and by how much the
appellants were dumping, imposed a definitive anti-dumping duty of 9.7% (the
duty applicable to the only Chinese trader in the sample with obtained MET),
instead of a duty of 16.5% (the weighted average duty of those in the sample).
(5)                   
In order to comply with the judgments, the
Commission has therefore examined the substantiated claims for MET. For the
reasons set out in section B.1 of the Proposal for a Council Implementing
Regulation Re-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 produced by Brosmann
Footwear (HK) Ltd, Seasonable Footwear (Zhongshan) Ltd, Lung Pao Footwear
(Guangzhou) Ltd, Risen Footwear (HK) Co Ltd and Zhejiang Aokang Shoes Co. Ltd
(hereinafter: the Commission proposal), the Commission services have concluded
that none of the appellants had demonstrated that market economy conditions
prevailed for them. Therefore, the Commission services have consulted the
Anti-Dumping and Anti-Subsidy Committee on a draft proposal for a Council
Regulation re-imposing a definitive anti-dumping duty of 16.5% on the
appellants.
(6)                   
None of the appellants has, in their submissions
following disclosure and during the hearing with the hearing officer, contested
the analysis of the Commission services as to the merit of their claims for
MET.
(7)                   
The appellants have, however, contested that the
Council has the possibility of re-imposing a definitive anti-dumping duty. They
have advanced a number of arguments, which are presented and rebutted in
sections B.2 to B.5 of the Commission proposal.
(8)                   
In the meeting of the Anti-Dumping and
Anti-Subsidy Committee on 16 January 2014, several delegations have asked the
Commission services to provide a more detailed legal analysis with regards to
the precise content of the duties that Article 266 TFEU imposes on the
Commission and the Council in the present case. The present Commission staff
working document aims to provide the requested analysis. It has been prepared
jointly by all Commission services in charge of anti-dumping and customs procedures.
In order to facilitate the reading of the document, the questions raised by
delegations have been summarized and re-ordered. The Commission services have
tried to cover all points raised by delegations, but are at the disposal of
delegations in case of need for further clarifications.

1.                      
Are the institutions under an obligation to
adopt an act closing the anti-dumping procedure with regards to the appellants?

(9)                   
Delegations have asked whether the institutions
are under an obligation to adopt any act at all in the present situation, or
whether they could simply do nothing and inform national customs authorities
accordingly.
(10)               
First, it is important to stress that the
judgments remove only Council Regulation (EC) No 1472/2006, in so far is it
concerns the appellants, from the legal order of the Union. All preparatory
acts, i.e. the notice of initiation[8]
and Commission Regulation (EC) No 553/2006 imposing provisional anti-dumping
measures on imports of certain footwear with uppers of leather originating in
the People's Republic of China and Vietnam[9],
remain valid also in so far as they concern the appellants.[10] In other words, the
legal effect of the judgments is that the anti-dumping procedure remains to
this day open in so far as the appellants are concerned.
(11)               
Second, it is a general principle of the Union’s administrative law that the institutions are under a duty to close investigations
that have been triggered by a complaint. The complainant is entitled to a final
decision of the competent institution closing the investigation in accordance
with the applicable procedural rules.[11]
(12)               
Therefore, the Commission services take the view
that the institutions are under an obligation vis-à-vis the complainants (that
is the Union producers that had requested the Commission to initiate the
present anti-dumping investigation) to adopt an act closing the anti-dumping
procedure with regard to the appellants. It is for that reason that the
Commission services have examined the substantiated claims for MET, in order to
enable the Commission to make a proposal to the Council for closing the
anti-dumping procedure with regard to the appellants. As the institutions are
obliged to adopt an act closing the anti-dumping procedure, the adoption of
such an act cannot constitute, as has been claimed by one delegation, a détournement
de pouvoir. Rather, the institutions meet their obligations by doing so.

2.                      
Does the Council enjoy discretion with regards
to the content of the act closing the anti-dumping procedure with regards to
the appellants?

(13)               
According to the case-law, the institutions
enjoy, in the field of trade defence, a very wide discretion to decide, in
terms of the interests of the Community, any measures needed to deal with the
situation which they have established.[12]
(14)               
They need to provide, however, a statement of
reasons pursuant to Article 296 TFEU for their choice.[13] That statement of
reasons is subject to judicial review by the Court, which is limited to verifying
whether relevant procedural rules have been complied with, whether the facts on
which the contested choice is based have been accurately stated, and whether
there has been a manifest error in the appraisal of those facts or a misuse of
powers.[14]
(15)               
In the present case, the Council has established
in Council Regulation (EC) No 1472/2006 dumping, injury and Union interest in
the imposition of measures. The General Court[15]
as well as the WTO Dispute Settlement Body[16]
upheld the reasoning of the Council in that regard. As will be explained below
in section 5, contrary to the view taken by interested parties, the Court has
not put into question the rulings of the General Court and the decision of the
WTO Dispute Settlement Body, in particular not with regards to (lack of) legal
consequences of the violation of the three month deadline for deciding requests
for MET.
(16)               
The Commission services see no reason to depart
from the findings and the reasoning set out in Council Regulation (EC) No
1472/2006 with regards to dumping, injury and Union interest. The Commission
also notes that neither the General Court, nor the Court of Justice, nor the
WTO Dispute Settlement Body have put into doubt the validity of the reasoning
of the institutions in that regard. Therefore, the Commission proposal confirms
Council Regulation (EC) No 1472/2006 in that regard. 
(17)               
If the Council wanted to refrain from
re-imposing definitive duties with regards to the appellants, it would have to
explain why it was necessary to reverse the finding of dumping, injury and
Union interest in Council Regulation (EC) No 1472/2006. The Commission services
have not carried out any additional investigation in that regard, for the
reasons set out in recitals 10, 11 and 15 to 18 of the Commission proposal and
in the notice published in the Official Journal[17]. Their new work has
been limited to the assessment of the MET claim. The Council would therefore
have to come today to a different assessment of the same facts that it had
before it when it adopted Council Regulation (EC) No 1472/2006. In the
alternative, it would have to provide reasons as to why a general principle of
Union law would stand in the way of such re-imposition of duties, despite the
finding of dumping, injury and Union interest in Council Regulation (EC) No
1472/2006. The Commission services will address the general principle of Union
law that has been evoked (protection of legitimate expectations in case of
retroactive application) below in section 4.
(18)               
At this stage, it is appropriate to point out
that two general principles of Union law militate in favour of re-imposing
duties. First, the general principle of Union law of equal treatment seems to
require that all exporting producers which are subject to an anti-dumping
investigation are treated in the same manner, except where particular
circumstances – such as a successful MET claim – justify a differentiated
treatment. The fact that the appellants have launched successful Court action
does not appear sufficient to warrant a different treatment than for the other
exporting producers. Secondly, refraining from re-imposing the definitive
anti-dumping duty appears to create unjust enrichment, which would run counter
a general principle of Union law. Had the institutions immediately assessed the
MET claims of the appellants, they would have imposed the weighted average duty
of those producers that were not granted MET in the sample, i.e. 16.5%. The
mere fact of a successful Court challenge would not seem to provide
justification for unjust enrichment.

3.                      
Is the draft proposal of the Commission services
in line with the decisional practice of the Council? 

(19)               
Delegations have queried whether the action
proposed by the Commission services is in line with the decisional practice of
the Council.
(20)               
Past annulments have concerned the finding of
dumping, injury and Union interest (either with regard to the establishment of
facts, with regard to the assessment of the facts, or with regard to rights of
defence). 
(21)               
Those annulments have either been partial or
complete.
(22)               
The Union Courts use the technique of partial
annulment where they can conclude themselves on the basis of the facts in the
file that the institutions ought to have granted a certain adjustment or should
have used a different method for a certain calculation, which would have
resulted in the imposition of a lower duty (but did not put into question the
findings of dumping, injury and Union interest). The (lower) duty remains in
force both for the time prior to annulment and for the time after annulment.[18] In order to comply
with the judgment, the institutions re-calculate the duty and amend the Regulation
imposing the duty accordingly for the past and for the future. They also
instruct national customs authorities to reimburse the difference, where such
claims had been made in due time.[19]
(23)               
The Union Courts proceed to complete annulment
where they cannot establish themselves on the basis of the facts in the file
whether or not the institutions were right in assuming that there was dumping,
injury and Union interest, because the institutions had to re-do part of their
investigation. As the Union Courts are not competent for carrying out the
investigation at the place of the Commission and the Council, they annulled the
regulations imposing definitive duties completely. As a consequence, the
institutions validly established the presence of the three conditions necessary
for the imposition of measures only after the judgment annulling the duties.
For imports that took place prior to the valid establishment of dumping, injury
and Union interest, the imposition of definitive duties is prohibited both by
the basic Regulation and by the Anti-dumping Agreement. Therefore, the acts
adopted by the institutions to close those investigations imposed definitive
duties only for the future.[20]

(24)               
The present case is different from past (partial
or complete) annulments in so far, as it does not concern the very presence of
dumping, injury and Union interest, but merely the choice of the appropriate
duty rate (that is the choice between the duty rate applicable to the only
company in the sample having received MET and the residual duty rate). What is
at dispute is therefore not the very principle of imposing a duty, but only the
precise amount (in other words: a modality) of the duty. And the adjustment, if
any, can only be downwards.
(25)               
Contrary to the cases of partial annulment in
the past discussed above in paragraph 22, the Court has not been able to decide
as to whether a new (reduced) duty rate had to be granted, because that
decision requires first an assessment of the MET claim. That task of assessing
the MET claim falls within the prerogatives of the Commission. Hence, the Court
cannot carry out this part of the investigation at the place of the Commission
without overstepping its competences. 
(26)               
Contrary to cases of complete annulment in the
past, the findings on dumping, injury, causality and Union interest have not
been annulled. Therefore, dumping, injury, causality and Union interest have
been validly established at the time of adoption of Council Regulation (EC) No
1472/2006. Therefore, there is no reason to limit the re-imposition of
definitive anti-dumping duties to the future.
(27)               
The draft proposal of the Commission services
does therefore not depart from the decisional practice of the Council.

4.                      
Does the draft proposal by the Commission
services lead to a retroactive imposition of anti-dumping duties? 

(28)               
Delegations have voiced the concern that the
draft proposal by the Commission services may constitute a retroactive
imposition of anti-dumping duties, which is prohibited by Article 10 (1) of the
basic Regulation and Article 10.1 of the Anti-dumping Agreement.
(29)               
In that regard, it is, first, important to
recall that Union law differentiates between the immediate application of the
new rule to future of effects of an on-going situation[21] and the retroactive
application of the new rule to a situation that had become definitive prior to
its entry into force (also referred to as an existing situation).[22]
(30)               
Second, in the present case, the situation of
the imports of the products produced by the appellants that occurred during the
period of application of Council Regulation (EC) No 1472/2006 has not yet
become definitive, for the following reason: When those imports took place, the
institutions had established dumping, injury and Union interest. However, as a
result of the (successful) Court challenge with regards to the lack of analysis
of the MET claim, the precise anti-dumping duty applicable to them has not yet
been definitively established.
(31)               
In that context, it is worth recalling that traders
were warned that such a duty may be imposed by the publication of the notice of
initiation, Commission Regulation (EC) No 553/2006 and the (not successfully
contested) findings on dumping, injury and Union interest in Council Regulation
(EC) No 1472/2006. At the request of the Commission, national customs
authorities, when provisionally reimbursing duties following the judgments, did
so with a clear caveat that duties may be re-imposed. 
(32)               
Third, even if the proposed re-imposition of
definitive anti-dumping duties was retroactive, quod non, the substantive
rules of Union law may apply to the situations existing before their entry into
force in so far as it clearly follows from their terms, objectives or general
scheme that such effect must be given to the them.[23] In case of such
retroactive application, the legitimate expectations of those concerned have to
be duly respected.[24]
(33)               
For the reasons set out in paragraph 31, traders
could not harbour any legitimate expectations. In addition, it is standing
case-law of the Union Courts that operators cannot acquire legitimate
expectations until the institutions have adopted an act closing the
administrative procedure, which has become definitive.[25] 
(34)               
Therefore, if even the re-imposition of
definitive anti-dumping duties in the present case was retroactive, it would not
violate the general principle of Union law of protection of legitimate
expectations and therefore not be illegal.
(35)               
The Commission observes, for the sake of
completeness, that in certain national legal orders, the immediate application
of the new rule to future effects of an on-going situation is qualified as
false or artificial retroactive effect. In those legal orders, only the
application of the new rule to new situations (which arise after the entry into
force of the new rule) is considered to be free of any (even false or
artificial) retroactive effect (and therefore possible without any particular
restrictions). 
(36)               
That idea of protecting traders in that manner
against future changes of the law (which may impact on on-going situations) is
foreign to Union law.[26]
(37)               
In any event, those legal orders that have a
category of false or artificial retroactive effect do not prohibit, in an
absolute manner, that a rule may have such false or artificial effect. They
require for that a proportionality analysis, which takes into account the
interest of those that have relied on the continued application of the old rule
to the on-going situation. For the reasons set out above in paragraph 33,
traders could not harbour any legitimate expectations in the present case. Therefore,
even if Union law was to recognize false or artificial retroactive effect, that
would not affect the legality of the proposed re-imposition of duties.

5.                      
What is the legal consequence of the violation
of the three-month deadline for deciding on requests for MET?

(38)               
One delegation has expressed the view that the
violation of the obligation of the Commission to decide on the request for MET
within a period of three months cannot be “healed” by a decision of the
institutions on that point at a later date. The delegation has not expressed
any view as to what the precise legal consequence of the violation of the three
month deadline would be. Interested parties have put forward two theories:
Either the institutions could no longer impose any duties at all on that company,
or they would have to treat that company as if it had been granted MET. 
(39)               
If that legal view was correct, it would entail
two consequences: First, dumping is no longer established, as the Commission
has not determined MET for the companies within the sample within three months.
Second, the institutions would be barred from carrying out the assessment of
the MET claims of the appellants now. They either would have to refrain from
imposing definitive anti-dumping duties, or they would have to impose the duty
rate which has been granted to the company in the sample that had obtained MET.
(40)               
However, the Court has in neither of the
judgments overturned the earlier case-law of the Union Courts, pursuant to
which the violation of the three month deadline does not entail any legal
consequences.[27]
The reference to the three month period in the judgments merely has the
function of showing that the basic Regulation grants exporting producers which
have made a request for MET an individual right to an MET determination, even
if they are not part of the sample.
(41)               
That analysis is also confirmed by the following
consideration: If the absence of an MET determination within three months was
to entail the legal consequence that MET has to be granted, irrespective of the
merits of the claim, the Court would have annulled Council Regulation (EC) No
1472/2006 only partially in so far as the appellants are concerned. In that
case, it could have set itself the applicable duty rate, which would have been
the duty rate which has been granted to the company in the sample that had
obtained MET.
(42)               
The Court has not done so. The plausible
explanation for the decision of the Court to completely annul Council
Regulation (EC) No 1472/2006 in so far as the appellants are concerned is that
in the view of the Court, it was still up to the Commission and the Council to
assess the MET claims. The Court could not do so at their place.

6.                      
May the Council set aside Article 221 of the
Community Custom Code?

(43)               
Delegations have questioned whether the Council
may set aside Article 221 of the Community Custom Code.
(44)               
In that regard, it is first of all necessary to
explain the relationship between the Community Customs Code and anti-dumping
rules in general. The basic Regulation does not contain any provision that
would make the Community Customs Code applicable to the perception of
anti-dumping duties. The only place where the basic Regulation deals with the
question of the perception of duties is in Article 14 of the basic Regulation.
Article 14(1) stipulates: “Provisional or definitive anti-dumping duties
shall be imposed by Regulation, and collected by Member States in the form, at
the rate specified and according to the other criteria laid down in the
Regulation imposing such duties. Such duties shall also be collected
independently of the customs duties, taxes and other charges normally imposed
on imports.”
(45)               
The basic Regulation therefore only decides that
the perception of duties is carried out by Member States. It does not, however,
render applicable the rules of the Community Custom Code to the perception of
those duties. Rather on the contrary: Form, rate and other criteria of the
perception shall be laid down in the Regulation imposing anti-dumping duties.
(46)               
Therefore, all Regulations imposing anti-dumping
duties contain an article that renders applicable the rules set out in the
Community Customs Code. That article typically reads: “Unless otherwise
specified, the provisions in force concerning customs duties shall apply.”[28] 
(47)               
The Community Customs Code therefore is not
automatically applicable to the perception of anti-dumping duties, as neither
the Community Customs Code itself nor the basic Regulation contains a provision
that would foresee such an automatic applicability.
(48)               
The Community Customs Code is only applicable to
the extent that the Regulation imposing anti-dumping duties renders the
Community Customs Code applicable. In the present case, the Council would not
decide to set aside Article 221 Community Customs Code. It would decide not
render Article 221 Community Customs Code applicable in the first place. That
decision is motivated by the fact that rendering Article 221 Community Customs
Code applicable would make the re-imposition of the anti-dumping duty in most
situations impossible, and therefore hinder compliance with the judgments.
(49)               
In any event, even if the Community Customs Code
was automatically applicable, and the provision in the Regulations imposing
anti-dumping duties merely declaratory and not constitutive of its application,
Article 14(3) of the basic Regulation would still provide a legal basis for
setting aside Article 221 of the Community Customs Code.
[1]               Case C-249/12 P Brosmann
a.o. v Council [2012] ECR I-0000.
[2]               Case C-247/10 P Zhejiang
Aokang v Council [2012] ECR I-0000.
[3]               OJ L 275, 6.10.2006, p. 1
[4]               Paragraph 42 of the judgement in Case C-249/10 P and
paragraph 36 of the judgement in Case C-247/10 P
[5]               This is different in certain
sectors, such as Union competition law, where – using Article 261 TFEU – the Union
legislator have given the court what is known as “full” or “unlimited”
jurisdiction so that, for instance, the Court can in its judgment itself set
the fine as what it considers the appropriate level. However, the basic
anti-dumping Regulation, referred to in footnote 7 below, does not provide such
a power to the Court, since an anti-dumping duty is not a sanction (Article 261
TFEU relates to Union Regulations imposing sanctions).
[6]               The abbreviation “MET” stands for “market economy
treatment”.
[7]               Council Regulation (EC) No 384/96
of 22 December 1995 on protection against dumped imports from countries not
members of the European Community (OJ 1996 L 56, p. 1), as amended.
[8]               OJ C 166, 7.7.2005, p. 14.
[9]               OJ L 98, 6.4.2006, p. 3.
[10]             Case C-415/96 Spain v Commission [1998]
ECR I-6993, paragraph 31; Case C-458/98 P Industrie des Poudres Sphériques
v Council [2000] I-8147, paragraphs 80 to 85.
[11]             See for anti-dumping and
anti-subsidy procedures Case 191/82 Fediol v Commission [1983]
ECR 2914, paragraphs 15 to 26; Case C-76/01 P Eurocoton v Council
[2003] ECR I-10091, paragraphs 54 to 74. It should be noted that the latter
judgment finds that acts adopted by the Council to conclude an anti-dumping or
anti-subsidy investigation are legislative acts, which, however, have to be
assimilated to administrative acts. Following the entry into force of the
Treaty of Lisbon, regulations adopted by the Council to conclude anti-dumping
and anti-subsidy procedures are no longer legislative acts, but implementing
acts (and therefore administrative acts). The case-law on administrative acts
is therefore directly applicable. See for other fields for example for State
aid Case C-521/06 P Athinaiki Techniki v Commission [2008] ECR
I-5829, paragraph 40, for competition Case 282/95 P Guérin automobiles v
Commission [1997] ECR I-1503, paragraph 36.
[12]             Case 191/82 Fediol v Commission
[1983] ECR 2914, paragraph 26.
[13]             Case C-76/01 P Eurocoton
v Council [2003] ECR I-10091, paragraphs 87 to 95.
[14]             Case 240/84 NTN Toyo Bearing
v Council [1987] ECR 1809, paragraph 19; Case C-156/87 Gestetner
Holdings v Council and Commission [1990] ECR I-781, paragraph 63;
and Case C-150/94 United Kingdom v Council [1998] ECR I-7235,
paragraph 54.
[15]             Case T-401/06 Brosmann v
Council [2010] ECR II-671; Case T-407/06 Aokang v Council [2010]
ECR II-747.
[16]             WT/DS405/R. The violations
which were found by the Dispute Settlement Body related to individual treatment
and the treatment of confidential information; those points were not subject to
the Court proceedings before the Union Courts and would in any event not
necessarily have triggered the annulment of findings related to dumping, injury
and Union interest in Council Regulation (EC) No
1472/2006. 
[17]             OJ C 295, 11.10.2013, p.6
[18]             See for example Case T-221/05 Huvis
v Council [2008] ECR II-124 and Case T-249/06 Interpipe
Nikopolsky v Council [2009] ECR II-303.
[19]             See for example Council Regulation  (EC) No 412/2009 of
18 May 2009 amending Regulation (EC) No 428/2005 imposing a definitive
anti-dumping duty on imports of polyester staple fibres originating in the
People’s Republic of China and Saudi Arabia, amending Regulation (EC) No
2852/2000 imposing a definitive anti-dumping duty on imports of polyester
staple fibres originating in the Republic of Korea and terminating the
anti-dumping proceeding in respect of such imports originating in Taiwan, OJ L
125, 25.1.2009, p. 1 (compliance with Huvis); Council Implementing
Regulation (EU) No 540/2012 of 21 June 2012 amending Regulation (EC) No
954/2006 imposing a definitive anti-dumping duty on imports of certain seamless
pipes and tubes, of iron or steel originating in Croatia, Romania, Russia and
Ukraine, OJ L 165, 26. 6.2012, p. 1 (compliance with Interpipe Nikopolsky).
[20]             See for example Case C-338/10 Gruenwald
Logistik Services [2012] ECR I-0000 and the re-imposition of duties by
Council Implementing Regulation (EU) Nr. 158/2013 reimposing a definitive
anti-dumping duty on imports of certain prepared or preserved citrus fruits
(namely mandarins, etc.) originating in the People’s Republic of China (OJ L
49, 22.2.2013, p. 29).
[21]             C-334/07 Ρ Commission v Freistaat
Sachsen [2008] ECR 1-9465, paragraph 53; Case T-176/01 Ferrière Nord
ν Commission [2004] ECR 11-3931, paragraph 139.
[22]             Case 68/69 Bundesknappschaft v Brock
[1970] ECR 171, paragraph 6; Case 1/73 Westzucker GmbH v Einfuhr- und
Vorratsstelle für Zucker [1973] 723, paragraph 5; Case 143/73 SOPAD
v FORMA a.o. [1973] ECR 1433, paragraph 8; Case 96/77 Bauche
[1978] ECR 383, paragraph 48; Case 125/77 KoninklijkeScholten-Honig NV e.a.
v Floofdproduktschaap voor Akkerbouwprodukten [1978] ECR 1991, paragraph
37; Case 40/79 Ρ v Commission [1981] ECR 361, paragraph 12;
Case 270/84 Licata v ESC [1986] ECR 2305, paragraph 31; Case
C-60/98 Butterfly Music v CEDEM [1999] ECR 1-3939, paragraph 24;
C-334/07 Ρ Commission v Freistaat Sachsen [2008] ECR 1-9465,
paragraph 53; Case T-404/05 Greece v Commission [2008] ECR
11-272, paragraph 77.
[23]             Joined cases 212 to 217/80 Meridionale Industria Salumi
a.o. [1981] ECR 2735, paragraph 9 and 10; Case 21/81 Bout [1982] ECR
381, paragraph 13; Case C-34/92 GruSa Fleisch v Hauptzollamt
Hamburg-Jonas [1993] ECR I-4147, paragraph 22; Case T-42/96 Eyckeler
& Malt v Commission [1998] ECR II-401, paragraphs 53 and 55 to
56.
[24]             Case C-337/88 Società agricola fattoria alimentare
(SAFA) [1990] ECR I-1, paragraph 13; Case T-180/01 Euroagri v Commission
[2004] ECR II-369, paragraphs 36 to 37;
[25]             Case C-169/95 Spain v Commission [1997] ECR
I-135, paragraph 51 to 54; Joined Cases T-116/01 and T-118/01, P&O
European Ferries (Vizcaya) SA v Commission [2003] ECR II-2957,
paragraph 205.
[26]             Case 245/81 Edeka v Germany [1982] ECR 2746, paragraph 27.
[27]             Case C-141/08 P Foshan
Shunde Yongjian Housewares & Hardware Co. Ltd v. Council [2009]
ECR I-9147, paragraph 94 and following; Case T-299/05 Shanghai Exceli
M&E Enterprise and Shanghai Adeptech Precision v Council [2009]
ECR II-565, paragraph 116 to 146.
[28]             Constant Council decision
practice since Article 1(1) of Council Regulation (EEC) No 1778/77 of 26 July
1977 concerning the application of the anti-dumping duty on ball bearings and
tapered roller bearings, originating in Japan, OJ L 196, 3.8.1977, p. 1; see
for example also Article 1(4) of Council Regulation (EC) Nr. 1472/2006.