CELEX: 62017CC0100
Language: en
Date: 2018-03-22 00:00:00
Title: Opinion of Advocate General Sharpston delivered on 22 March 2018.

OPINION OF ADVOCATE GENERAL
SHARPSTON
delivered on 22 March 2018(1)

Case C‑100/17 P

Gul Ahmed Textile Mills Ltd

v

Council of the European Union

(Appeal — Dumping — Imports of cotton-type bed linen originating in Pakistan — Continued interest in bringing proceedings — Impact of events intervening during the proceedings — Grounds justifying such interest — Burden of proof)

1.        This case concerns an appeal brought by Gul Ahmed Textile Mills Ltd (‘Gul Ahmed’) in which it asks the Court to set aside in its entirety the judgment of the General Court of 15 December 2016, T‑199/04 RENV, Gul Ahmed Textile Mills v Council. (2) By that judgment, the General Court rejected Gul Ahmed’s action for annulment of Council Regulation (EC) No 397/2004 of 2 March 2004 imposing a definitive anti-dumping duty on imports of cotton-type bed linen originating in Pakistan. (3)

2.        This case raises the important question of what amounts to a continuing interest in bringing proceedings. The Court will have the opportunity to assess whether, having regard to the legal and factual situations that may arise, the annulment sought is capable of procuring this applicant a benefit. More generally, the Court has the opportunity to develop its case-law on certain procedural aspects concerning the assessment of that interest, in particular the burden of proof and the procedural rights of the applicant.
 Factual and legal background

3.        Gul Ahmed is a Pakistani company which manufactures and exports cotton-type bed linen to the European Union.

4.        On 4 November 2002, the European Commission initiated an anti-dumping investigation in respect of imports of such products into the European Union.

5.        On 2 March 2004, based on the results of that investigation, the Council adopted Regulation No 397/2004 imposing anti-dumping duties of 13.1% on imports of cotton-type bed linen originating in Pakistan, classifiable within the Combined Nomenclature codes specified in that regulation.

6.        Following a review investigation carried out pursuant to Article 11(3) of Council Regulation (EC) No 384/96, (4) Regulation No 397/2004 was amended by Council Regulation (EC) No 695/2006. (5) That regulation established the rate of definitive anti-dumping duty applicable to cotton-type bed linen manufactured by Gul Ahmed at 5.6%.

7.        In accordance with Article 11(2) of the Basic Regulation, the definitive anti-dumping duty thus established expired on 4 March 2009, that is to say, five years after it was introduced.

8.        On 28 May 2004, Gul Ahmed brought an action before the General Court seeking the annulment of Regulation No 397/2004 in so far as that regulation concerned it.

9.        In its application, Gul Ahmed raised five pleas in law. In particular, by its second plea, Gul Ahmed alleged that the Council had committed a manifest error of assessment and had infringed Article 2(3) and (5) and Article 18(4) of the Basic Regulation and of the anti-dumping agreement (6) in its calculation of normal value. In addition, by its third plea, it alleged that the drawback adjustment applied when comparing normal value and export price infringed Article 2(10) of the Basic Regulation, the anti-dumping agreement and the obligation to state adequate reasons under Article 296 TFEU.

10.      By its judgment of 27 September 2011, T‑199/04, Gul Ahmed Textile Mills v Council, (7) the General Court upheld the third part of the fifth plea in law (8) and, without examining the other pleas, annulled the regulation at issue in so far as it concerned the applicant.

11.      The Council, supported by the Commission, appealed and asked the Court of Justice to set aside that judgment.

12.      By its judgment of 14 November 2013, C‑638/11 P, Council v Gul Ahmed Textile Mills, (9) this Court set aside the judgment in Case T‑199/04 in its entirety and referred the case back to the General Court, reserving the costs.

13.      On 26 November 2015, the General Court held a hearing in Case T‑199/04 RENV. At that hearing, the Council, supported by the Commission, argued that Gul Ahmed no longer had any interest in bringing proceedings.

14.      In support of that submission the two institutions argued that the anti-dumping duties imposed by the regulation at issue had expired on 2 March 2009, so that exports of the product in question were no longer subject to those duties. They further maintained that, in accordance with Article 46 of the Statute of the Court of Justice, the time limit for bringing any action for damages for harm caused in the application of those duties had expired on 1 May 2014, (10) and that the right to reimbursement of the anti-dumping duties pursuant to the Union Customs Code was also time-barred. (11) They argued that the annulment sought was accordingly no longer capable of procuring any benefit to Gul Ahmed.

15.      The General Court gave Gul Ahmed a period of two weeks from the date of the hearing to submit its observations (together with any documentary proof that could support its continued interest in the case being adjudicated upon) on the plea of inadmissibility thus raised.

16.      By letter of 10 December 2015, Gul Ahmed submitted its observations, claiming that it continued to have an interest in bringing proceedings. It advanced the following five grounds: (i) its interest in recovering the costs of the proceedings from the Council, (ii) the possibility of bringing an action in the future for damages caused by the failure by the EU Courts to adjudicate within a reasonable time, (iii) its chance of obtaining a repayment of the definitive anti-dumping duty paid, (iv) its interest in ensuring that a similar illegality will not recur in the future, and (v) the opportunity of bringing in the future an action for damages caused by the regulation at issue.

17.      By letters of 6 and 20 January 2016, the Commission and the Council submitted their observations. In essence, they asked the General Court to reject the arguments raised by Gul Ahmed and to rule that that company had lost any interest in pursuing the proceedings. There was, accordingly, no need to adjudicate.
 The judgment under appeal and the appeal

18.      By judgment of 15 December 2016, T‑199/04 RENV, Gul Ahmed Textile Mills v Council, the General Court held that (i) an alleged interest in recovering the costs of the proceedings from the Council, (ii) an alleged possibility of bringing an action in the future for damages caused by the failure by the EU Courts to adjudicate within a reasonable time, (iii) an alleged interest in ensuring that a similar illegality would not recur in the future and (iv) an alleged interest in the restoration of Gul Ahmed’s reputation did not justify the latter’s interest in bringing proceedings. It also held that (v) an alleged opportunity to obtain repayment of the definitive anti-dumping duty paid did justify such an interest, albeit with regard to the first, fourth and fifth pleas alone. (12)

19.      Accordingly, the General Court ruled that there was no need to adjudicate on the second and third pleas and examined only the first, fourth and fifth pleas. It concluded that those latter pleas were unfounded and accordingly dismissed the action in its entirety.

20.      By its appeal, Gul Ahmed requests the Court of Justice to set aside the judgment under appeal and rule on the substance of all the pleas in law, alternatively to refer the case back to the General Court for a decision on the substance. It puts forward two grounds of appeal.

21.      First, Gul Ahmed submits that the General Court erred in law by holding that it no longer had an interest in pursuing proceedings with regard to the second and third pleas raised in its application and that that Court failed adequately to state reasons for so holding. Second, Gul Ahmed advances a series of arguments alleging that the General Court committed various errors of law in rejecting the first two parts of the fifth plea.

22.      The Council and the Commission ask the Court to reject the appeal as inadmissible or, alternatively, unfounded.

23.      At the hearing on 25 January 2018, Gul Ahmed, the Council and the Commission made oral submissions.

24.      As requested by the Court, I shall limit myself in this Opinion to examining the first ground of appeal.
 Assessment

 General remarks on the notion of an interest in bringing proceedings

25.      The requirement to have an interest in bringing annulment proceedings, as interpreted by the General Court in the judgment under appeal, imposes a strict test. In order to satisfy it, Gul Ahmed should, if the General Court’s reasoning is to be followed, not only have instituted the annulment proceedings, but should also have introduced an action for damages caused by that regulation and initiated proceedings before the competent national authorities seeking repayment of the anti-dumping duties paid in different periods.

26.      With the passage of time, the regulation that Gul Ahmed sought to have annulled has expired and any claim in respect of damages or repayment of duties has become time-barred. Does Gul Ahmed nevertheless have a continuing interest in maintaining the proceedings for annulment?

27.      In my view, the true position is that an applicant in such a situation is under a duty to be both prudent and alert. It behoves it, in other words, to keep a careful eye open to changes in its legal situation over time and to take such additional steps as may be necessary to preserve its interest in pursuing the proceedings. If it fails to do so, it will run the risk that the defendant may raise a successful challenge to its continuing interest to act.

28.      Seen from that perspective, a successful action for annulment is an essential precursor to undoing harm suffered. But in most cases, it will not, of itself, reverse that harm. That requires an action for damages. That does not mean that the first action (the action for annulment) is dependent on the action for damages. Contrary to what Gul Ahmed suggests, the separate, but nonetheless interlinked, nature of those two sets of proceedings does not distort the system of legal remedies that the Treaty makes available to individuals.

29.      The conditions of admissibility of an action for annulment are set out in Article 263 TFEU. These require inter alia (i) that the act in respect of which annulment is sought is ‘intended to produce legal effects vis-à-visthird parties’, (ii) that the applicant should have standing in the form of direct and individual concern and (iii) that the action be brought within the time limits set down in that article. (13) In the present case, there can be no doubt that the first of these tests is satisfied in relation to Regulation No 397/2004. As regards the second test, the proposition that Regulation No 397/2004 is of direct and individual concern to Gul Ahmed has at no stage been called into question. Indeed, the regulation at issue mentions Gul Ahmed amongst the Pakistani producers concerned by the anti-dumping investigation and that company attests that a large sum in duties has been imposed on the imports of its products into the European Union. As regards the third test, it is not disputed that Gul Ahmed lodged its application for annulment within the time limit specified in Article 263 TFEU.

30.      However, satisfying all the conditions prescribed in Article 263 TFEU is not enough. According to settled case-law, an action for annulment brought by a natural or legal person is admissible only in so far as that person has an interest in having the contested act annulled. The annulment of that act must be capable, in itself, of having legal consequences so that that action may, if successful, procure an advantage to the person who brought it. (14) It is not disputed that Gul Ahmed satisfied that requirement at the time of lodging its action for annulment.

31.      The requirement of such an interest, although not provided for in Article 263 TFEU, constitutes a condition of admissibility analysed by the EU Courts separately from the conditions laid down by that provision. (15) It is inspired by the general theory of procedural law common to the Member States, where it serves the purpose of ensuring that there is not a massive inflow of litigation initiated ‘in the public interest’, which would risk turning the action for annulment into a form of actio popularis.

32.      In accordance with established case-law, an applicant’s interest in bringing proceedings must, in the light of the purpose of the action, exist at the stage of lodging the action (otherwise the action will be inadmissible) and must continue until the final decision, failing which there will be no need to adjudicate. (16) The interest must be both vested and current. (17)

33.      Regulation No 397/2004 expired on 4 March 2009. That however does not make the present proceedings devoid of purpose, given that the expiry had an effect ex nunc and thus its results were not equivalent to those which an annulment would, in principle, have had. (18)

34.      It is clear from the case-law that an applicant’s interest does not necessarily disappear where a disputed act no longer has any effect for the future. (19) Where the measure at issue has ceased to have effect during the course of proceedings, the Court must assess the applicant’s interest in bringing proceedings in the light of the specific circumstances, taking account in particular of the consequences of the alleged unlawfulness and of the nature of the damage claimed to have been suffered. (20) That interest may be justified by reference to damage which the applicant fears he may suffer in the future. The damage in question may take a number of forms — for example, unwelcome imposition of new levies, curtailment of business opportunities, restrictions on the development of potential new products.

35.      In the judgment under appeal, the General Court held that Gul Ahmed’s interest in bringing proceedings had disappeared in the course of the proceedings with regard to certain parts of its application, namely the second and third pleas.

36.      Would it be legitimate to interpret the notion of interest in bringing proceedings in such a way that it can be extinguished by the mere passage of time and with it the applicant’s right to have its case examined by a court?

37.      As a matter of principle, I reject that approach.

38.      Such an interpretation would mean that the length of the proceedings, which in principle is not imputable to an applicant, (21) could destroy its right to a judicial remedy. It could lead to random inequalities before the law depending on the length of the procedure. It might well encourage defendants to adopt delaying tactics in the hope of frustrating legal scrutiny. 

39.      That would be tantamount to accepting that the acts of the institutions whose temporal effects are limited and expire after an action for annulment has been brought but before the court is able to give the relevant judgment become immune to review by the EU judicature. (22)

40.      In its landmark case Les Verts v Parliament (23) the Court stated that the European Union is a community based on the rule of law, inasmuch as neither its Member States nor its institutions can avoid a review of the question whether the measures adopted by them are in conformity with its basic constitutional charter, the Treaty, or the law which derives from it. (24)

41.      The situation described above would be incompatible both with that case-law and with the spirit of Article 263 TFEU, under which the EU judicature is to review the legality of acts adopted by the institutions intended to produce legal effects vis-à-vis third parties. (25)

42.      The question of interest in bringing proceedings is therefore of constitutional importance and must be placed in the broader context of the fundamental right to effective judicial protection, enshrined in Article 47 of the Charter of Fundamental Rights of the European Union. (26)

43.      In my view, all these elements militate in favour of interpreting the notion of an interest in bringing proceedings broadly. (27)

44.      I reject the contention of the Council and the Commission that such an interpretation risks turning the action for annulment into an actio popularis. In the national systems of many Member States, a narrow interpretation of interest may indeed serve to protect the judicial system against a massive inflow of litigation. (28) In EU procedural law, however, the concept is buttressed by the strict conditions as to standing laid down in Article 263 TFEU.

45.      Like Advocate General Bobek, I consider that the existence of an ‘interest to act’ should not be manipulated in order to ensure a certain level of litigation. (29) Rather, that requirement calls for a democratic reading undertaken in the light of human rights. (30) I also agree with Advocate General Kokott, who has argued against imposing excessive requirements on establishing an interest where the strict conditions of the second or third limb of the fourth paragraph of Article 263 TFEU are already met. (31)

46.      The prospect of a personal benefit or advantage in the event of success before the EU Courts is decisive in determining the existence of an interest in bringing proceedings. However, that criterion is perhaps unduly subjective and volatile, since it lacks any clear threshold or yardstick for the required positive impact that winning the case must have on the situation of the applicant. (32)

47.      Assessment of interest can be done only on a case-by-case basis, in concreto, taking into account all the consequences that the annulment of the disputed act may have on an applicant’s individual situation. In that context, Advocate General Wahl has observed that the Court endeavours not to define the notion of a ‘continued interest’ too restrictively. (33) I agree and share the view already expressed by Advocate General Bobek that establishing an interest should require no more of an applicant than a prima faciedemonstration of negative impact of the contested act on it (implying the existence of a personal benefit from the act’s annulment). (34) Going beyond that standard of proof may require the applicant to prove the impossible. (35)

48.      In that regard, the degree of probability or plausibility of obtaining an advantage should matter little. (36) It should also be immaterial how great the potential advantage is. In particular, if an advantage depends on a future action for damages, the EU Courts should refrain from considering the substance of such action and the prospect of its success. Only a purely hypothetical and uncertain prospect of obtaining an advantage in the future should disqualify the applicant, (37) whilst a future advantage that might on any reasonable view be likely to be obtained in the normal course will justify an interest in bringing proceedings. (38)

49.      I do not think that adopting a generous approach will lead to a situation in which the Court finds itself delivering advisory opinions on general or hypothetical questions. (39) Nor should the Court, for reasons of sound administration of justice, economy of procedure or expediency, use ‘the language of admissibility’ to avoid having to examine the substance of the case. (40) Where an applicant has put forward a sufficient interest in bringing proceedings at the time of lodging its application, as did Gul Ahmed in the present proceedings, the Court should examine the contention that it has subsequently lost that interest with scrupulous care.

50.      Against that background, I turn to examine whether Gul Ahmed has a continued interest to act.
 Admissibility of the appeal

51.      The Council requests the Court to declare various parts of the appeal inadmissible, inasmuch as they essentially request for re-examination of factual findings made by the General Court and repeat the pleas relied on before that court.

52.      It is true that the appeal is not always precise and, as the Council rightly observes, limits itself on occasion to arguments already submitted before the General Court. (41)

53.      That said, it is clear that Gul Ahmed challenges the interpretation and application of EU law by the General Court and thus the points of law examined at first instance may be discussed again in an appeal. (42) Moreover, Gul Ahmed raises, albeit in general terms, the insufficiency of grounds given by that Court. That in itself is a question of law and amenable as such to judicial review on appeal. (43)

54.      The Court, moreover, is not bound solely by the arguments of the parties, but may where appropriate — beyond those arguments — apply to the facts put before it the rules of law relevant for the solution of the dispute; otherwise it might be forced, in some circumstances, to base its decisions on erroneous legal considerations. (44)

55.      I therefore suggest that this Court should examine the substance of the arguments relied on by Gul Ahmed in so far as they relate to points of law and do not call in question the findings and assessments of facts made by the General Court. (45)
 Procedural aspects concerning the alleged lack of a continued interest in bringing proceedings

56.      Gul Ahmed argues that Article 129 of the Rules of Procedure of the General Court, which requires that an interest be demonstrated at the time of lodging the application, cannot be invoked to require an applicant to do so at a later stage. Thus, once an applicant has demonstrated its interest on introducing its application, it is relieved from the burden of proving its continuing interest in the course of proceedings.

57.      It is settled case-law that it is for the applicant to prove its interest in bringing proceedings. (46) It is also settled case-law that the Court may at any stage of proceedings determine whether the applicant’s interest is a continuing one, either at the behest of the defendant (or any other party having an interest) or of its own motion. (47)

58.      However, once the applicant has demonstrated that it satisfies all the necessary requirements of admissibility on lodging its application, (48) as Gul Ahmed did, there must I think be a presumption that it continues to satisfy them.

59.      That presumption will hold for so long as it is not challenged. Thus, an applicant does not have to deposit material (say) every two months to demonstrate that it still has an interest to act and ‘re-validate’ its original application. A procedural rule laying down such a requirement would be unworkable.

60.      It is, however, permissible for the defendant, at any stage of the proceedings, to seek to challenge that presumption. Since such a challenge is akin to a counter-claim against the applicant, it is for the defendant to indicate, precisely and with supporting material, the exact grounds of challenge. (49) That is because the applicant has to know the case that is being raised against it. He cannot fairly be expected to second-guess the challenge and cover all potential arguments in advance. Thus, the Court should not accept a bare challenge to continuing interest to act. (50)

61.      In a procedural system (such as that which applies in the EU Courts) that relies heavily on written procedure, it would be normal to expect such a challenge to be raised in writing. If — as in the present case — the challenge is first raised orally at the hearing, it seems to me that the court should usually set a period within which the challenger (that is, the defendant) should be required to lodge a formal challenge, indicating its precise scope and adducing the necessary evidence in support to establish a prima facie case that the applicant has indeed lost its interest to act.

62.      Once the defendant has done that, the burden of proof will shift to the applicant, which must be afforded a reasonable opportunity to present its case under conditions that do not place it at a substantial disadvantage via-à-vis its opponent. (51) By virtue of the principle of equality of arms, which is a corollary of the right to a fair hearing, the Court should give the applicant a period of time within which to seek to disprove the challenge and may subsequently prescribe a time limit within which the other interested parties may submit their written observations on those submissions. (52)

63.      Once the Court has received submissions from both parties, it must analyse the arguments raised and supporting material lodged and must then reach a decision. (53)

64.      However, the present case did not follow that path. At the hearing before the General Court on 25 November 2015, the Council and the Commission argued orally that Gul Ahmed’s interest had disappeared in the course of the proceedings, since the regulation at issue had expired and any action for damages would be time-barred. At the same time, the Commission put forward a number of grounds which might potentially justify an interest in bringing proceedings and then submitted detailed arguments based on analysis of the case-law to demonstrate why, in its submission, none of them could justify an interest in Gul Ahmed’s case. (54) The General Court then gave Gul Ahmed two weeks to lodge its submissions, following which it gave the Council and the Commission an opportunity to comment on those submissions. All the parties submitted their observations within the prescribed time.

65.      Is what happened in this case vitiated because it failed to respect the general rules I have suggested in points 61 to 63 above?

66.      In my view, the objection raised by the institutions was adequately substantiated at the hearing itself (without objection on Gul Ahmed’s part). Gul Ahmed was thus placed in a position where it could express its views on the challenge made to its interest. It is true that normally one might expect a serious objection of that nature to be raised in writing. However, Gul Ahmed never asked the General Court to order the objecting parties to do so nor did it express any reservations as to the procedure thus followed. In such circumstances, it is my view that the improvised procedure followed by the General Court did not violate Gul Ahmed’s rights of defence.

67.      In the light of the foregoing, I conclude that the General Court did not breach procedural rules concerning the burden of proof or violate the principle of equality of arms.
 Does Gul Ahmed have an interest in bringing proceedings in order to prevent the risk of recurring illegality in the future?

68.      Gul Ahmed argues that the alleged errors in the institutions’ dumping margin calculations are not case specific, but are liable to recur in the future. It claims that it is therefore justified in pursuing the proceedings in order to prevent the Council from repeating that illegality in the future.

69.      The Council submits that no such risk exists. First, the possibility of opening a new investigation with regard to cotton-type bed linen originating in Pakistan is purely hypothetical. Second, and in any event, the alleged errors are case specific, because the methodology applied resulted from the absence of any verifiable data coupled with Gul Ahmed’s lack of cooperation. (55) The General Court held that Gul Ahmed had failed to submit any specific arguments and therefore rejected its claim. (56)

70.      An applicant’s interest does not necessarily disappear where a disputed act no longer has any effect for the future. (57) An annulment is of itself capable of having legal consequences, in particular by preventing the EU institutions from repeating the practice complained of. (58) But the interest in bringing proceedings will exist only if the alleged unlawfulness is liable to recur in the future independently of the circumstances of the case which gave rise to the action. (59) Examples may include errors in interpreting provisions of EU law in the light of the World Trade Organisation agreements, (60) in particular errors relating to the methodology, criteria or formulae applied, as opposed to errors in assessment of specific factual circumstances. Finally, an applicant may not need to prove that it may be directly concerned by the recurring illegality in the future in similar proceedings. (61)

71.      In the present case, first, the fact that several years have passed since the expiry of the definitive anti-dumping duty on imports of Gul Ahmed’s textiles into the European Union does not render the possibility of another investigation purely hypothetical. On the contrary, if the pricing practices of the Pakistani producers of cotton-type bed linen again appear to meet the conditions for applying EU rules on protection against dumped imports, they may well be investigated again.

72.      Second, the fact that in the absence of reliable primary sources of information, the Council relied on ‘any other reasonable method’ by virtue of Article 2(3), (5) and (6) of the Basic Regulation does not per se mean that the alleged methodological errors were case specific. While applying that provision, the Council had to adopt a certain methodology and rely on certain criteria.

73.      It is not easy to draw a line between potentially recurring errors, on the one hand, and case-specific errors, on the other hand. A given solution may have been applied ad hoc and in order to address a novel situation. Or it may reflect a consistent administrative practice or ‘template’ that the Commission has developed to handle a recurring situation. If so, it may be plausibly expected to be repeated in the future.

74.      As I see it, the absence of reliable primary data and a lack of cooperation from those under investigation are not likely to be novel problems during an anti-dumping investigation. It follows that, in principle, certain alleged errors that may have been committed during such an investigation may indeed be methodological in nature and therefore potentially likely to be repeated in the future in similar investigations.

75.      However, at the hearing, counsel for Gul Ahmed was adamant that, in its appeal, Gul Ahmed was challenging in reality the absence of any particular methodology and that its case was that the Commission had based its findings on arbitrary ad hoc choices.

76.      Thus construed, Gul Ahmed’s argument fails to identify any error of law by the General Court in classifying the Commission’s alleged errors as case specific. As the Council and the Commission rightly submit, that argument merely requests this Court to re-examine the factual and substantive arguments presented before the General Court, which the Court of Justice has no jurisdiction to do. Indeed, by that argument, Gul Ahmed admits in essence that the alleged errors were case specific. I conclude that Gul Ahmed has failed to demonstrate that the alleged unlawfulness may be repeated in the future and that the grounds given by the General Court in that regard meet the requisite legal standard. (62)
 The alleged partial rejection of the third plea 

77.      Gul Ahmed submits that the General Court failed to state grounds with regard to the alleged partial rejection of the third plea and failed to rule on the remainder of that plea.

78.      As the Council and the Commission rightly observe, Gul Ahmed’s argument rests on an obvious misreading of paragraph 58 of the judgment under appeal. In that paragraph, the General Court limited itself to identifying five circumstances particular to this case in analysing a continuing interest in its outcome. It held that Gul Ahmed had no interest in putting forward that plea and considered that it did not need to adjudicate in that regard.

79.      I suggest therefore that that element of appeal should be rejected.
 The alleged breach of the principle established in Shanghai Excell

80.      Gul Ahmed appears to read Shanghai Excell as implying that to declare its case inadmissible would be to admit that acts whose legal effects will expire after an action to annul them has been brought but before judgment has been given may be excluded from review, which is incompatible with Article 263 TFEU.

81.      Such a reading of Shanghai Excell would imply that irrespective of whether other circumstances change, an interest in bringing proceedings must be systematically considered as established in annulment proceedings concerning acts whose legal effects expire before judgment is given. As the Council and the Commission rightly observe, no such principle can be derived from that case-law and in particular from paragraph 56 and following of that judgment.

82.      I therefore suggest that that element of appeal should be rejected.
 Did the General Court fail adequately to state reasons?

83.      Gul Ahmed claims, albeit in general terms, that the General Court infringed Article 36 of the Statute of the Court of Justice, as it failed to state reasons and to address all of the arguments and evidence it invoked to demonstrate its continuing interest.

84.      I have already discussed the adequacy of the reasons given by the General Court with regard to the risk of recurring illegality in the future. (63) I shall therefore now examine in turn the reasons given by the General Court with regard to the other grounds which Gul Ahmed submits justify its interest in bringing proceedings.
 Recovering the costs of the proceedings from the Council

85.      Gul Ahmed argues that it has a legitimate interest in pursuing the proceedings with the view to recovering its costs. In the judgment under appeal, the General Court held that the annulment of the regulation at issue would not in itself confer on the applicant a right to recover the costs, given that these come under a separate head of claim and given that even a successful party may in certain circumstances be ordered to pay the costs. (64)

86.      I agree with the General Court’s conclusion but not its reasoning.

87.      A request to order the unsuccessful party to pay the costs is not an autonomous head of claim. It is ancillary and subordinate to the principal claim seeking the annulment of the contested act. If a party loses its interest in pursuing the main claim, it will also lose any interest in claiming the costs of pursuing that claim.

88.      Article 58(2) of the Statute of the Court of Justice provides that an appeal directed solely against a decision on costs is inadmissible. Having regard to the wording and purpose of that provision, an interest in recovering the costs of proceedings as such will not serve as a basis for continuing proceedings. In order to justify such an interest, an applicant must establish an interest beyond that relating to the costs. (65) The requirement of an interest in bringing proceedings would become meaningless if a mere request to order the opposing party to pay the costs was sufficient to justify an interest in pursuing the annulment proceedings.

89.      I therefore suggest that the Court should conclude that a desire to recover the costs of legal proceedings is not an independent basis justifying an interest to act. That finding, however, is not such as to justify the judgment under appeal being set aside, because the General Court’s conclusion remains correct.
 Future action for damages caused by a failure by the EU Courts to adjudicate within a reasonable time

90.      Gul Ahmed also relies on its intention to seek damages at some future point for the allegedly excessive duration of the proceedings before the EU judicature. The General Court held that, in order to seek such damages, Gul Ahmed must bring an action for damages before that Court. It followed that it could not rely on that ground to justify its interest in the present case. (66)

91.      Whilst I agree with the conclusion reached by the General Court, I do not follow its reasoning.

92.      It is settled case-law that an applicant may retain an interest in seeking annulment of an act which adversely affects it, in so far as a finding of illegality could serve as the basis for a future action for material or non-material damages (67) caused to it by the disputed act. (68) In particular, an applicant has an interest to act where the annulment of the disputed act is, of itself, capable of benefiting it in its action for damages, in particular by increasing the likelihood that such action will succeed. (69) An applicant will also have an interest to act if the annulment might constitute the basis for extrajudicial negotiations with the author of the act annulled, aimed at reparation for the damage suffered. (70)

93.      However, the success of an action for damages resulting from excessive length of proceedings does not, as a general rule, depend on being successful in the prior action for annulment of the contested act. (71)

94.      I therefore suggest that the Court should conclude that a desire to institute a future action for damages resulting from excessive duration of proceedings does not constitute a continuing interest to act in existing proceedings for annulment. That finding, however, is not such as to justify the judgment under appeal being set aside, because the General Court’s conclusion remains correct.
 Repayment of the anti-dumping duties paid

95.      Gul Ahmed submits that the request which its subsidiary, GTM (Europe) Ltd (‘GTM’), lodged with the Belgian authorities for repayment of the anti-dumping duties paid on the imports at issue as from August 2007, together with other similar requests, justifies its continued interest. The Council submits that the interest of a subsidiary is not relevant.

96.      The General Court held, first, that the interest of Gul Ahmed’s subsidiary ‘merges’ with that of the latter and therefore justifies it. (72) Next, it found that GTM’s request related to the duties paid following the amendment of the Regulation No 397/2004 by Regulation No 695/2006, which superseded the regulation at issue with regard to certain elements relating to dumping. (73) It also found that the second and third pleas were aimed at challenging those superseded elements of the regulation at issue, and that an annulment sought on that basis could therefore have no bearing on GTM’s request for reimbursement of duties levied under the subsequent regulation. Accordingly, the General Court held that that request for repayment justified Gul Ahmed’s interest only with regard to the first, fourth and fifth pleas raised before it. (74) The General Court did not address the other requests for repayment to which Gul Ahmed referred in its written submissions.

97.      At the hearing before this Court, Gul Ahmed explained that it did not submit evidence to substantiate those other requests for repayment, because they were made by independent importers of its products, which, it believed, made them irrelevant to the case.

98.      In such circumstances, the General Court cannot be criticised for having based its assessment on GTM’s request for repayment alone. Moreover, it was not required specifically to justify its position relating to those other requests, which had been invoked only generally, nor was it under any duty to explain why it considered them to be irrelevant. (75)

99.      Were the regulation at issue to be annulled, the legal basis for repayment of the anti-dumping duties paid on imports of Gul Ahmed’s products would be Article 116(1)(a) of the Union Customs Code read in conjunction with Article 117(1) thereof. Pursuant to Article 121(1)(a) of that code, a request for repayment must be lodged within three years of the date of notification of the customs debt in question. It follows that only requests for repayment made within that period, such as that made by GTM, could be relied on by Gul Ahmed in order to justify its interest. 

100. The second and third pleas raised in Gul Ahmed’s application indeed refer to elements of the regulation at issue which were superseded by Regulation No 695/2006. (76) Even if, to some extent, the criteria and methodology followed by the Council for the purpose of that regulation may have been similar to those used for the regulation at issue, (77) a potential annulment of the latter regulation would have no direct effect on the legality of Regulation No 695/2006.

101. Moreover, even if the Court were to annul the regulation at issue and even if, theoretically, that annulment might prompt the Council to review Regulation No 595/2006 or to withdraw it with retroactive effect, such an hypothesis would, at the most, confer on Gul Ahmed a mere future and uncertain prospect of obtaining a benefit. That in itself is insufficient to justify Gul Ahmed’s interest in bringing proceedings. (78)

102. It follows that the grounds given by the General Court in that regard for rejecting Gul Ahmed’s arguments are sufficiently clear.
 Restoration of Gul Ahmed’s reputation

103. Gul Ahmed’s written submissions and its appeal contain no mention of its interest in having its reputation restored. The General Court held that Gul Ahmed ‘ha[d] not in any way developed its claim’ in that regard. (79) At the hearing on 25 January 2018, the Commission explained that, during the hearing before the General Court, it itself had raised and discussed that issue as a ground that could potentially justify an interest.

104. A chance to restore an applicant’s reputational loss does not pertain to his legal, but rather to his factual situation. An interest in bringing proceedings may be justified by a clear chance (as opposed to an absolute certainty) of obtaining such a factual benefit. (80)

105. In accordance with settled case-law, the adoption of anti-dumping duties is a protective and preventive measure against unfair competition resulting from dumping practices. (81) In my view a regulation establishing a definitive anti-dumping duty is potentially capable of causing a reputational loss to persons that it lists as responsible for dumping practices. It follows that an applicant seeking the annulment of such a regulation might conceivably have at least a non-material interest in pursuing the proceedings, on the basis that a potential annulment might alleviate, if not fully undo, its reputational loss. (82) Such interest may be justified regardless of the nature of the pleas raised. (83)

106. Nonetheless, for those principles to apply, the applicant must have raised the matter in its pleadings and adduced some evidence of loss caused to its reputation by the regulation whose annulment it seeks. That is not the case here and I shall therefore not consider that possibility further.
 Future proceedings for damages caused by the regulation at issue

107. Gul Ahmed relied before the General Court, albeit only in general terms, on the possibility that it might seek to sue the Council for the damages caused to it by Regulation No 397/2004. The Council and the Commission argued that an action for damages caused by the regulation at issue was in any event time-barred. The General Court omitted to address that argument in the judgment under appeal.

108. As a matter of principle, an applicant retains an interest in seeking the annulment of an act, if a finding of illegality might serve as the basis for a future action for damages caused to it by the disputed act or for future negotiations with its author. (84) However, a future action for damages can procure a benefit to an applicant only if it is not time-barred and thus inadmissible.

109. In accordance with Article 46 of the Statue of the Court of Justice, an action for non-contractual liability of the EU is barred after a period of five years from the occurrence of the event giving rise thereto, unless that period of limitation is interrupted by the institution of proceedings alleging non-contractual liability on the part of the European Union before the Court (85) or by a prior application to the relevant institution of the European Union. Where non-contractual liability of the European Union has its origin in an act of general application, that limitation period does not begin until the damaging effects of that measure have arisen. (86)

110. The damages suffered by Gul Ahmed during the period of application of the regulation at issue, in particular in relation to its obligation to pay the anti-dumping duties on imports of its products to the EU, are time-barred. That regulation expired on 4 March 2009 and the limitation period has never been interrupted. In particular, the fact that Gul Ahmed brought annulment proceedings does not interrupt time running for the purposes of the limitation period. (87)

111. It is theoretically possible that Gul Ahmed may have suffered other damages which materialised only later and for which the limitation period has not yet expired. There might, equally theoretically, also be continuing damages, such as payment of bank guarantee costs (88) or damage to reputation, (89) for which Gul Ahmed could still sue the Council. (90)

112. I have discussed damage to reputation earlier in this Opinion. (91) For the rest, Gul Ahmed did not identify before the General Court or this Court any continuing damages or pending actions for damages. Gul Ahmed cannot therefore establish an interest on the basis of such vague and inadequately supported arguments. The General Court cannot be criticised for not having expressly stated reasons in that regard. (92)
 Conclusion concerning the respect of obligation to state the reasons

113. In the light of the foregoing, I conclude that the General Court has adequately stated its reasons and that therefore Gul Ahmed’s argument to the contrary should be rejected.
 Costs

114. Since the Court has asked me to consider Gul Ahmed’s first ground of appeal alone and since the ultimate disposal of the appeal will depend on the position that the Court adopts not only in relation to that ground but also with regard to the second ground of appeal, I do not make any recommendation as to costs in this case.
 Conclusion

115. In the light of the foregoing and without prejudging the Court’s assessment of the second ground of appeal, I suggest that the Court should dismiss Gul Ahmed’s first ground of appeal.

1      Original language: English.

2      Not published, EU:T:2016:740 (‘the judgment under appeal’).

3      OJ 2004 L 66, p. 1 (‘Regulation No 397/2004’ or ‘the regulation at issue’).

4      Regulation of 22 December 1995 on protection against dumped imports from countries not members of the European Community (OJ 1996 L 56, p. 1) (‘the Basic Regulation’). 

5      Regulation of 5 May 2006 amending Regulation No 397/2004 (OJ 2006 L 121, p. 14).

6      Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (OJ 1994 L 336, p. 103), set out in Annex 1A to the Agreement establishing the World Trade Organisation (OJ 1994 L 336, p. 1).

7      Not published, EU:T:2011:535.

8      That plea concerned the alleged Council’s failure to examine whether certain factors broke the causal link between the dumped imports and the injury suffered by the EU industry.

9      EU:C:2013:732.

10      That is five years from the occurrence of the event giving rise to damages suffered.      

11      Pursuant to Article 121(1)(a) of Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code (OJ 2013 L 269, p. 1), a request for repayment must be lodged within three years of the date of notification of the customs debt.

12      I note that the list of grounds examined by the General Court is not exactly the same as the list of grounds put forward by Gul Ahmed before it. I shall revert to that inconsistency later in this Opinion (see points 103 and 107 below).

13      See the first, fourth and final paragraphs of Article 263 TFEU.      

14      Judgment of 17 September 2015, Mory and Others v Commission, C‑33/14 P, EU:C:2015:609, paragraph 55.

15      See Opinion of Advocate General Mengozzi in Mory and Others v Commission, C‑33/14 P, EU:C:2015:409, point 23.

16      Judgments of 24 June 1986, AKZO Chemie and AKZO Chemie UK v Commission, 53/85, EU:C:1986:256, paragraph 21, and of 17 September 2015, Mory and Others v Commission, C‑33/14 P, EU:C:2015:609, paragraph 57. See also, in the context of an appeal, judgments of 19 October 1995, Rendo and Others v Commission, C‑19/93 P, EU:C:1995:339, paragraph 13, and of 7 June 2007, Wunenburger v Commission, C‑362/05 P, EU:C:2007:322, paragraph 42 (‘Wunenburger’).

17      See, to that effect, judgments of 17 September 2009, Commission v Koninklijke FrieslandCampina, C‑519/07 P, EU:C:2009:556, paragraph 65, and of 26 February 2015, Planet v Commission, C‑564/13 P, EU:C:2015:124, paragraph 34.

18      Judgments of 27 June 2013, Xeda International and Pace International v Commission, C‑149/12 P, not published, EU:C:2013:433, paragraph 32, and of 23 December 2015, Parliament v Council, C‑595/14, EU:C:2015:847, paragraph 23.

19      See to that effect judgment of 1 October 1998, Langnese-Iglo v Commission, C‑279/95 P, EU:C:1998:447, in which the Court held that the expiry of the disputed act did not make it any less desirable to settle definitively the dispute as to the legality and scope of its provisions with a view to determining its legal effects in the period up to the date of expiry (paragraph 71). In the same vein, the interest may persist notwithstanding that the disputed act is obsolescent (Wunenburger, paragraphs 41 to 62), has been repealed (judgment of 12 December 2006, Organisation des Modjahedines du peuple d’Iran v Council, T‑228/02, EU:T:2006:384, paragraphs 34 and 35) or replaced (judgment of 7 October 2009, Vischim v Commission, T‑420/05, EU:T:2009:391, paragraphs 58 to 63), is no longer applicable (judgment of 26 April 1988, Apesco v Commission, 207/86, EU:C:1988:200, paragraph 16) or has been fully implemented and has thus already produced all its effects (judgment of 24 June 1986, AKZO Chemie and AKZO Chemie UK v Commission, 53/85, EU:C:1986:256, paragraph 21).

20      Judgment of 23 December 2015, Parliament v Council, C‑595/14, EU:C:2015:847, paragraph 18 and the case-law cited.

21      In the present case, apart from the period of nearly two years, when the proceedings were stayed at the applicant’s request (15 October 2004 to 7 September 2006), that lapse of time is not imputable to Gul Ahmed.

22      See judgment of 18 March 2009, Shanghai Excell M&E Enterprise and Shanghai Adeptech Precision v Council, T‑299/05, EU:T:2009:72, paragraph 56 (‘Shanghai Excell’).

23      Judgment of 23 April 1986, 294/83, EU:C:1986:166, paragraph 23 (‘Les Verts’).

24      I should also note that in Les Verts, the Court famously held that ‘the Treaty established a complete system of legal remedies and procedures designed to permit the Court of Justice to review the legality of measures adopted by the institutions’ (see paragraph 23 of that judgment, emphasis added).

25      As the General Court rightly pointed out in Shanghai Excell, paragraph 57.

26      OJ 2010 C 83, p. 389 (‘the Charter’).      

27      The Court has followed this generous approach in numerous cases. The judgment of 17 April 2008, Flaherty and Others v Commission, C‑373/06 P, C‑379/06 P and C‑382/06 P, EU:C:2008:230, is an eminent example. One commentator sees in it a ‘liberal approach, favouring access to the court’. See Van Raepenbusch, S., ‘Le recours en annulation’ in Les recours des particuliers devant le juge de l’Union européenne, Brussels, Bruylant, 2012, p. 47.

28      See point 31 above.

29      See Opinion of Advocate General Bobek in Binca Seafoods v Commission, C‑268/16 P, EU:C:2017:444, point 95.

30      See Renaudie, O., L’intérêt à agir devant le juge administratif, Paris, Berger-Levrault, 2015, p. 43, who points to the need of a ‘democratic reading’ of the requirement of an interest to act ‘revisited by human rights’.

31      See, to that effect, Opinion of Advocate General Kokott in Telefónica v Commission, C‑274/12 P, EU:C:2013:204, point 86.

32      Mariatte, F., Ritleng, D., Contentieux de l’Union européenne 1. Annulation, exception d’illégalité, Paris, Lamy, 1998, p. 108.

33      See, to that effect, his Opinion in Commission v HansestadtLübeck, C‑524/14 P, EU:C:2016:693, point 38.

34      See his Opinion in Binca Seafoods v Commission, C‑268/16 P, EU:C:2017:444, point 93.

35      In other words, probatio diabolica. See, to similar effect, judgment of 11 April 2013, Mindo v Commission, C‑652/11 P, EU:C:2013:229, paragraph 50.

36      In some instances the EU judicature has referred to that criterion, without however drawing any particular inferences from it. See, for example, order of 6 July 2011, Petroci v Council, T‑160/11, not published, EU:T:2011:334, paragraph 23.

37      Lenaerts, K., Maselis, I., Gutman, K., EU Procedural Law, Oxford University Press, 2014, p. 360. See also judgments of 19 July 2012, Council v Zhejiang Xinan Chemical Industrial Group, C‑337/09 P, EU:C:2012:471, paragraph 50; of 21 January 1987, Stroghili v Court of Auditors, 204/85, EU:C:1987:21, paragraph 11; and of 30 April 1998, Cityflyer Express v Commission, T‑16/96, EU:T:1998:78, paragraph 30.

38      In the context of anti-dumping duties, the General Court has often interpreted that criterion broadly. See, for example, judgments of 29 June 2000, MediciGrimm v Council, T‑7/99, EU:T:2000:175, paragraphs 54 to 56, and of 28 February 2017, Canadian Solar Emea and Others v Council, T‑162/14, not published, EU:T:2017:124, paragraph 47.

39      See Van Raepenbusch, S., ‘Le recours en annulation’ in Les recours des particuliers devant le juge de l’Union européenne, Brussels, Bruylant, 2012, p. 47. See also Opinion of Advocate General Kokott in Joined Cases Italy v Commission, C‑138/03, C‑324/03 and C‑431/03, EU:C:2005:387, point 41, and Opinion of Advocate General Mengozzi in Mory and Others v Commission, C‑33/14 P, EU:C:2015:409, point 28.

40      See, in that vein, Wicker, G., ‘La légitimité d’intérêt à agir’, Études sur le droit de la concurrence et quelques thèmes fondamentaux: mélanges en l’honneur d’Yves Serra, Dalloz, 2006, p. 460.

41      Despite identifying paragraphs 42 to 60 of the judgment under appeal as being vitiated by errors of law, when questioned on that point at the hearing, Gul Ahmed accepted that its appeal in fact addresses paragraphs 49 and 55 to 60 only.

42      Judgment of 12 September 2006, Reynolds Tobacco and Others v Commission, C‑131/03 P, EU:C:2006:541, paragraph 51 and the case-law cited.

43      Judgment of 26 May 2016, Rose Vision v Commission, C‑224/15 P, EU:C:2016:358, paragraph 26.

44      Order of 27 September 2004, UER/M6 and Others, C‑470/02 P, not published, EU:C:2004:565, paragraph 69; and judgments of 21 September 2010, Sweden and API and Commission, C‑514/07 P, C‑528/07 P and C‑532/07 P, EU:C:2010:541, paragraphs 65 to 67; and of 5 October 2009, Commission v Roodhuijzen, T‑58/08 P, EU:T:2009:385, paragraphs 34 to 37.

45      See, by analogy, judgment of 16 July 2009, Commission v Schneider Electric, C‑440/07 P, EU:C:2009:459, paragraph 193.

46      See, to that effect, order of 31 July 1989, S. v Commission, 206/89 R, EU:C:1989:333, paragraph 8, and judgment of 4 June 2015, Andechser Molkerei Scheitz v Commission, C‑682/13 P, not published, EU:C:2015:356, paragraph 27.

47      See, to that effect, judgment of 19 October 1995, Rendo and Others v Commission, C‑19/93 P, EU:C:1995:339, paragraph 13, and order of 17 October 2005, First Data and Others v Commission, T‑28/02, EU:T:2005:357, paragraphs 36 and 37. See also, as examples of cases where the General Court considered that issue ex officio: judgments of 7 March 2013, Acino v Commission, T‑539/10, not published, EU:T:2013:110, paragraphs 29 to 46, and of 10 April 2013, GRP Security v Courtof Auditors, T‑87/11, not published, EU:T:2013:161, paragraphs 43 to 49.

48      See points 29 to 30 above.

49      In accordance with the principle necessitas probandi incumbit ei qui agit. See, to that effect, judgment of 18 July 2006, Rossi v OHIM, C‑214/05 P, EU:C:2006:494, paragraph 23.

50      See, to that effect, Opinion of Advocate General Bot in Commission v InfrontWM, C‑125/06 P, EU:C:2007:611, points 71 to 73, together with the judgment of 13 March 2008 in that case (EU:C:2008:159, paragraph 56); order of 8 April 2008, Saint-Gobain Glass Deutschland v Commission, C‑503/07 P, EU:C:2008:207, paragraph 51; and of 11 May 2010, PC-WareInformation Technologies v Commission, T‑121/08, EU:T:2010:183, paragraph 36. See also, to that effect, Clausen, F., Les moyens d’ordre public dans le contentieux relevant de la Cour de justice de l’Union européenne, Université Paris II, 2017, to be published by Bruylant, p. 509.

51      Judgment of 6 November 2012, Otis and Others, C‑199/11, EU:C:2012:684, paragraphs 71 and 72.

52      For that purpose the General Court has the capacity to prescribe relevant measures of organisation of procedure in accordance with Articles 88 to 90 of its Rules of Procedure.

53      The sequence I have laid out in the preceding points takes as its basis the procedure set out in Article 130(1) to (7) of the Rules of Procedure of the General Court for the purpose of preliminary objections to the admissibility of the action or the competence of the Court. See, for example, order of 6 September 2011, Inuit Tapiriit Kanatami and Others v Parliament and Council, T‑18/10, EU:T:2011:419.

54      In answers to questions from the Court at the hearing, the agent for the Commission in the proceedings before the General Court gave a detailed narrative — without being contradicted by counsel for Gul Ahmed — of how the argument on interest to act had proceeded at the hearing before the General Court. He indicated that those grounds included a future action for damages, a request for repayment of anti-dumping duties paid by related importers and the prospect of restoring Gul Ahmed’s reputation.

55      See footnote 77 below.

56      Paragraph 57 of the judgment under appeal.

57      See the case-law cited in point 34 above.

58      See, to that effect, judgment of 3 September 2009, Moser Baer India v Council, C‑535/06 P, EU:C:2009:498 (‘Moser Baer India’), paragraph 25.

59      Wunenburger, paragraph 52.

60      Judgment of 24 September 2008, Reliance Industries v Counciland Commission, T‑45/06, EU:T:2008:398, paragraph 43.

61      While Wunenburger (paragraph 58) and Shanghai Excell (paragraph 51, in the context of definitive anti-dumping duty) refer to such an additional requirement, Moser Baer India, paragraph 25, refers in abstract terms to the risk of repetition in the future as such.

62      Judgment of 26 November 2013, Groupe Gascogne v Commission, C‑58/12 P, EU:C:2013:770, paragraph 37.

63      See points 68 to 76 above.

64      See paragraph 52 of the judgment under appeal.

65      See, by analogy, Opinion of Advocate General Kokott in Bertelsmann and Sony Corporation of America v Impala, C‑413/06 P, EU:C:2007:790, point 80.

66      See paragraph 53 of the judgment under appeal.

67      See judgments of 22 December 2008, Gordon v Commission, C‑198/07 P, EU:C:2008:761, paragraphs 19 and 60, and of 16 July 2009, SELEX Sistemi Integrati v Commission, C‑481/07 P, not published, EU:C:2009:461, paragraph 38.

68      See, in particular, judgments of 5 March 1980, Könecke Fleischwarenfabrik v Commission, 76/79, EU:C:1980:68, paragraph 9; of 31 March 1998, France and Others v Commission, C‑68/94 and C‑30/95, EU:C:1998:148, paragraph 74; of 13 July 2000, Parliament v Richard, C‑174/99 P, EU:C:2000:412, paragraphs 33 and 34; and of 27 June 2013, Xeda International and Pace International v Commission, C‑149/12 P, not published, EU:C:2013:433, paragraphs 32 and 33.

69      See, to that effect, judgment of 17 September 2015, Mory and Others v Commission, C‑33/14 P, EU:C:2015:609, paragraphs 75 and 80.

70      Shanghai Excell, paragraph 55. See also judgments of 17 July 2014, Westfälisch-Lippischer Sparkassen- und Giroverband v Commission, T‑457/09, EU:T:2014:683, paragraph 139, and of 14 November 2013, ICdA and Others v Commission, T‑456/11, EU:T:2013:594, paragraph 38.

71      For examples of cases which show that applicants may, as a matter of principle, successfully sue the European Union for loss arising from the excessive length of the annulment proceedings despite the fact that their actions in annulment have been previously dismissed, see judgments of 1 February 2017, Kendrion v EuropeanUnion, T‑479/14, EU:T:2017:48; of 10 January 2017, Gascogne Sack Deutschland and Gascogne v European Union, T‑577/14, EU:T:2017:1; and of 7 June 2017, Guardian Europe v EuropeanUnion, T‑673/15, EU:T:2017:377.

72      That finding has not been contested by either of the parties.

73      These concerned: the determination of the normal value and its comparison with the export price.

74      See paragraph 54 of the judgment under appeal.

75      See, by analogy, judgment of 12 September 2017, Anagnostakis v Commission, C‑589/15 P, EU:C:2017:663, paragraph 38.

76      Those elements were determined afresh following a new investigation. Based on data resulting from that investigation, the Council fixed new rates of the anti-dumping duty in that regulation in substitution for those defined by the regulation at issue.

77      The methodology followed by the Commission during the investigations preceding the adoption of those two regulations differed to some extent. That was due to the fact that during the second investigation the Commission could base its findings on relatively good quality, verified data reported by a group of Pakistani cotton-type bed linen producers, which was not the case for the first investigation.

78      The situation would obviously have been different had such annulment (whether or not accompanied by a maintenance of the effects of the annulled regulation) intervened before Regulation No 695/2006 was adopted or while it was still applicable. However, it is beyond the scope of this Opinion to delve further into possible hypothetical scenarios.

79      Paragraphs 44 and 59 of the judgment under appeal.

80      See, to that effect, the thorough analysis by Advocate General Bobek in his Opinion in Joined Cases Bionorica and Diapharm v Commission, C‑596/15 P and C‑597/15 P, EU:C:2017:297, points 47 to 57.

81      Judgment of 3 October 2000, Industrie des poudres sphériques v Council, C‑458/98 P, EU:C:2000:531, paragraphs 91 and 92.

82      See, by analogy, judgments of 28 May 2013, Abdulrahim v Council and Commission, C‑239/12 P, EU:C:2013:331, paragraphs 70 to 72; of 8 September 2016, Iranian Offshore Engineering & Construction v Council, C‑459/15 P, not published, EU:C:2016:646, paragraph 12; of 6 June 2013, Ayadi v Commission, C‑183/12 P, not published, EU:C:2013:369, paragraphs 59 to 81; and of 15 June 2017, Al-Faqih and Others v Commission, C‑19/16 P, EU:C:2017:466, paragraphs 36 and 37. See also, by analogy, judgment of 15 March 1973, Marcato v Commission, 37/72, EU:C:1973:33, paragraphs 6 and 7.

83      See, by analogy, Opinion of Advocate General Bot in Abdulrahim v Council and Commission, C‑239/12 P, EU:C:2013:30, point 66.

84      See point 92 above.

85      Judgment of 8 November 2012, Evropaïki Dynamiki v Commission, C‑469/11 P, EU:C:2012:705, paragraph 55.

86      Judgment of 19 April 2007, Holcim (Deutschland) v Commission, C‑282/05 P, EU:C:2007:226, paragraph 29.

87      Ibidem, paragraph 36.

88      Ibidem, paragraph 35.

89      Judgment of 7 June 2017, Guardian Europe v EuropeanUnion, T‑673/15, EU:T:2017:377, paragraph 42.

90      Such an action would be admissible with regard to damages arisen during the period of five years preceding that action. See, to that effect, judgments of 21 April 2005, Holcim (Deutschland) v Commission, T‑28/03, EU:T:2005:139, paragraph 70, and of 16 December 2015, Chart v EEAS, T‑138/14, EU:T:2015:981, paragraph 58 and the case-law cited.

91      See points 103 to 106 above.

92      Judgment of 2 April 2009, France Télécom v Commission, C‑202/07 P, EU:C:2009:214, paragraph 30 and the case-law cited.