‘Valimar’ OOD v Nachalnik na Mitnitsa Varna.
Date: 2014-09-18
24. The Bulgarian Government expresses doubts as to the admissibility of the request for a preliminary ruling in the light of the case-law of the Court resulting from the judgment in TWD Textilwerke Deggendorf  (C‑188/92, EU:C:1994:90). The Nachalnik submits that the reference for a preliminary ruling is inadmissible.
25. The Bulgarian Government and the Nachalnik take the view that, in accordance with that case-law, if the interested party has not challenged a measure before the General Court of the European Union in accordance with Article 263 TFEU, it cannot contest it indirectly by means of a request for a preliminary ruling in so far as the measure in question is of direct and individual concern to it.
26. In that regard, the Bulgarian Government submits that, according to paragraph 21 of the judgment in Nachi Europe  (C‑239/99, EU:C:2001:101), a regulation imposing an anti-dumping duty may be of direct and individual concern not only to the exporting producers referred to in that regulation, but also to the importers who are connected with the producers and whose resale prices for the products in question form the basis of the constructed export price.
27. The Bulgarian Government takes the view that, in the light of its position as SSM’s sole commercial representative in Bulgaria, Valimar may be regarded as an importer which is connected with SSM, for the purposes of the case-law referred to the previous paragraph. In support of that argument, it relies on the judgment in ISO  v Council  (118/77, EU:C:1979:92), in which the Court held that Import Standard Office, a company governed by French law, the sole importer of a Japanese manufacturer on which anti-dumping duties had been imposed by a Council Regulation, was sufficiently closely associated with that manufacturer and that, therefore, that regulation was of direct and individual concern to it. The Bulgarian Government submits that the dispute in the main proceedings is similar to that in the case which gave rise to that judgment and that it is therefore possible to take the view that Valimar is sufficiently closely connected with SSM for Regulation No 1279/2007 to be of direct and individual concern to it, inasmuch as that regulation imposes an anti-dumping duty on the importation of the goods concerned.
28. It must be pointed out that the possibility for a litigant to plead before the court hearing its action the invalidity of provisions in European Union acts presupposes that the party in question had no right of direct action under Article 263 TFEU by which it could challenge those provisions (see judgments in TWD Textilwerke Deggendorf  (EU:C:1994:90), paragraph 23, and Bolton Alimentari , C‑494/09, EU:C:2011:87, paragraph 22).
29. Nevertheless, it follows from that case-law that the admissibility of such a direct action must be beyond any doubt (see judgment in Bolton Alimentari , EU:C:2011:87, paragraph 23). In the present case, the information submitted with the request for a preliminary ruling and that which the Bulgarian Government and Valimar provided in their oral submissions does not allow the Court to conclude that such a direct action would have been admissible.
30. Regulations imposing an anti-dumping duty, although by their nature and scope of a legislative nature, may be of direct and individual concern to those producers and exporters of the product in question who are charged with practising dumping on the basis of information originating from their business activities. Generally, that is the case with those exporters and producers who are able to establish that they were identified in the measures adopted by the Commission and the Council or were concerned by the preliminary investigations (see, to that effect, judgment in Allied Corporation and Others  v Commission , 239/82 and 275/82, EU:C:1984:68, paragraphs 11 and 12).
31. The same is true of those importers of the product concerned whose resale prices were taken into account for the construction of export prices and who are consequently concerned by the findings relating to the existence of dumping (see judgment in Nashua Corporation and Others  v Commission and Council , C‑133/87 and C‑150/87, EU:C:1990:115, paragraph 15, and judgment in Gestetner Holdings  v Council and Commission , C‑156/87, EU:C:1990:116, paragraph 18).
32. The Court has also held that importers associated with exporters in third countries on whose products anti-dumping duties have been imposed may challenge the regulations imposing such duties, particularly where the export price has been calculated on the basis of those importers’ resale prices on the Community market and where the anti-dumping duty itself is calculated on the basis of those resale prices (see, to that effect, judgment in Neotype Techmashexport  v Commission and Council , C‑305/86, EU:C:1990:295, paragraphs 19 and 20).
33. Furthermore, the recognition of the right of certain categories of traders to bring an action for the annulment of an anti-dumping regulation cannot, however, prevent other traders from also being able to claim that they are individually concerned by such a regulation by reason of certain attributes which are peculiar to them and which differentiate them from all other persons (see judgment in Extramet Industrie  v Council , C‑358/89, EU:C:1991:214, paragraph 16).
34. Valimar does not belong to any of the categories of traders identified above, which the Court has recognised as having a direct right of action against regulations imposing an anti-dumping duty. In addition, it cannot be regarded as being in a situation similar to that of the undertaking in question in the case which gave rise to the judgment in ISO  v Council  (EU:C:1979:92).
35. It must be pointed out that, first, according to the information submitted by the referring court, Valimar, as an independent importer, had no association with SSM and did not participate in the Commission’s administrative procedure in the context of the investigation to determine the anti-dumping duty. In that regard, Valimar stated, in the course of the hearing, that, although it imported SSM’s goods, among others, into Bulgaria, it could not on the other hand be regarded as its commercial representative or as having concluded a sole distributorship contract with it. Furthermore, Valimar stated that, at the time when the review procedure was initiated, the Republic of Bulgaria was not yet a member of the European Union and was not importing the goods in question, with the result that it could not be regarded as having locus standi  to bring an action against Regulation No 1279/2007 at the time when that regulation was adopted.
36. Secondly, as is apparent from that regulation, Valimar’s resale prices were not used to calculate SSM’s export prices.
37. Consequently, it must be held that Regulation No 1279/2007 concerns Valimar, not by virtue of certain attributes peculiar to it or factual circumstances which differentiate it from all other persons, but merely by virtue of its objective status as an importer of the products in question, in the same way as any other trader who is, or might in the future be, in the same situation (see, to that effect, judgment in Spijker Kwasten  v Commission , 231/82, EU:C:1983:220, paragraph 9).
38. In those circumstances, it is clear that the request for a preliminary ruling must be declared admissible.
Consideration of the questions referred
51. In that regard, it must be borne in mind at the outset that, in the sphere of the common commercial policy and, most particularly, in the realm of measures to protect trade, the institutions of the European Union enjoy a broad discretion by reason of the complexity of the economic, political and legal situations which they have to examine. The judicial review of such an appraisal must therefore be limited to verifying whether the 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 (see, to that effect, judgments in Ikea Wholesale , C‑351/04, EU:C:2007:547, paragraphs 40 and 41, and Council and Commission  v Interpipe Niko Tube and Interpipe NTRP , C‑191/09 P and C‑200/09 P, EU:C:2012:78, paragraph 63).