Fliesen-Zentrum Deutschland GmbH v Hauptzollamt Regensburg.
Date: 2015-09-10
41. In that regard, it should be noted that, according to settled case-law, the procedure laid down in Article 267 TFEU is based on a clear separation of functions between the national courts and the Court of Justice, with the result that it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court (see, inter alia, judgment in Hoesch Metals and Alloys , C‑373/08, EU:C:2010:68, paragraph 59).
42. It is also apparent from settled case-law that Article 267 TFEU does not make available a means of redress to the parties to a case pending before a national court, so that the Court cannot be compelled to evaluate the validity of Union law on the sole ground that that question has been put to it by one of the parties in its written observations (see judgment in MSD Sharp & Dohme , C‑316/09, EU:C:2011:275, paragraph 23 and the case-law cited).
43. In those circumstances, the inquiry into the validity of Regulation No 917/2011 should not be extended to those other grounds of invalidity, which the referring court has not raised (see, by analogy, judgment in Hoesch Metals and Alloys , C‑373/08, EU:C:2010:68, paragraph 60).
44. In the second place, according to settled case-law, in the sphere of the common commercial policy and, most particularly, in the realm of measures to protect trade, the Union institutions 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 judgment in Simon, Evers & Co. , C‑21/13, EU:C:2014:2154, paragraph 29 and the case-law cited).
The selection of the United States as analogue third country
47. Fliesen-Zentrum is of the view that the selection of the United States as analogue country was not appropriate. Relying on the judgment in Nölle (C‑16/90, EU:C:1991:402, paragraph 35), it submits that the Union institutions must, when selecting a reference country, examine the appropriateness of that country with due care. In the present case, the Commission was informed, during the proceeding that led to the adoption of Regulation No 917/2011, of the incomparable nature of the US and Chinese markets and of the fact that the United States was not an appropriate analogue country for the purposes of the anti-dumping investigation. In particular, Fliesen-Zentrum argues that the Commission could also have considered other third countries for reference country, such as the United Arab Emirates, the Arab Republic of Egypt, Malaysia and the Tunisian Republic.
48. In that regard, Article 2(7)(a) of the basic regulation provides that in the case of imports from non-market economy countries, in derogation from the rules set out in Article 2(1) to (6), normal value must, as a rule, be determined on the basis of the price or constructed value in a market economy third country. The aim of that provision is to prevent account being taken of prices and costs in non-market economy countries which are not the normal result of market forces (see judgments in Rotexchemie , C‑26/96, EU:C:1997:261, paragraph 9, and GLS , C‑338/10, EU:C:2012:158, paragraph 20).
49. Under the second subparagraph of Article 2(7)(a) of the basic regulation, an appropriate market economy third country is to be selected in a not unreasonable manner, due account being taken of any reliable information made available at the time of selection. Indeed, it is for the Union institutions, whilst taking account of the possible alternatives, to try to find a third country in which the prices for a like product are formed in circumstances which are as similar as possible to those in the country of export, provided that it is a market economy country (judgment in GLS , C‑338/10, EU:C:2012:158, paragraph 21).
50. The Court has already held that it is apparent from the wording and scheme of that provision that the aim of according priority to the main methodology prescribed by that provision, namely determining the normal value of a product, in the case of imports from non-market economy countries, from ‘the price or constructed value in a market economy third country’ or ‘the price from such a third country to other countries, including the [European Union]’, is to obtain a reasonable determination of the normal value in the country of export by choosing a third country in which the price for a like product is formed in circumstances which are as similar as possible to those in the country of export, provided that it is a market economy country (judgment in GLS , C‑338/10, EU:C:2012:158, paragraphs 24 and 25).
51. In addition, according to the case-law cited in paragraph 44 of the present judgment, the exercise of the Union institutions’ discretion when selecting the reference third country is subject to review by the Court. It is necessary, in particular, to verify that those institutions have not neglected to take account of essential factors for the purpose of establishing the appropriate nature of the country chosen and that the information contained in the file in the case was considered with all the care required for it to be held that the normal value was determined in an appropriate and not unreasonable manner (see, to that effect, judgments in Nölle , C‑16/90, EU:C:1991:402, paragraphs 12 and 13, and GLS , C‑338/10, EU:C:2012:158, paragraph 22).
56. In particular, as regards the argument that the Commission did not take into account certain publicly available statistical data during that search, the Court did indeed hold, in the judgment in GLS (C‑338/10, EU:C:2012:158, paragraph 30), that the Union institutions must examine with all due care the information they possess, including, in particular, Eurostat statistics, in order to ascertain whether it is possible to select an analogue country for the purposes of Article 2(7)(a) of the basic regulation. Nevertheless, it is important to bear in mind that those considerations related to the obligations of the Commission where none of the undertakings contacted were willing to cooperate and where it applied the secondary methodology provided for in that provision whereby the normal value of the product in question is determined ‘on any other reasonable basis’. It is undisputed that, in the present anti-dumping proceeding, a US undertaking agreed to cooperate with the Commission and that the Commission, on that basis, applied the main methodology set out by that provision, under which it did not have to examine those statistics.
66. Next, as regards the determination of the normal value pursuant to Article 2(7)(a) of the basic regulation, the Commission has acknowledged, in its written observations, that recourse to the data of a number of producers in the analogue country, instead of those of a single producer, is, in principle, preferable. Nevertheless, the Court has already held that the mere fact that there is only one producer in the reference country does not in itself preclude the prices there from being the result of genuine competition, since such competition may just as well result, in the absence of price controls, from the presence of significant imports from other countries (judgment in Rotexchemie , C‑26/96, EU:C:1997:261, paragraph 15).
75. In that regard, the Court has already held that the statement of reasons required by Article 296 TFEU must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in such a way as to enable the persons concerned to ascertain the reasons for it and to enable the competent Court of the European Union to exercise its power of review (see judgment in Italy  v Commission , C‑138/03, C‑324/03 and C‑431/03, EU:C:2005:714, paragraph 54 and the case-law cited).
76. That requirement must be appraised by reference to the circumstances of each case, in particular the content of the measure, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (judgment in Italy  v Commission , C‑138/03, C‑324/03 and C‑431/03, EU:C:2005:714, paragraph 55 and the case-law cited).
77. Similarly, in the case of a regulation, the statement of reasons may be limited to indicating the general situation which led to its adoption, on the one hand, and the general objectives which it is intended to achieve, on the other (judgments in Abrias and Others v Commission , 3/83, EU:C:1985:283, paragraph 30, and Spain  v Council , C‑342/03, EU:C:2005:151, paragraph 55). Consequently, it is not possible to require that the Union institutions should set out the various facts, which are often very numerous and complex, on the basis of which the regulation was adopted, or a fortiori  that they should provide a more or less complete evaluation of those facts (see, to that effect, judgment in Beus , 5/67, EU:C:1968:13, paragraph 4).
86. In that connection, it should be noted that, pursuant to Article 17(1) of the basic regulation, samples of parties, products or transactions must be statistically valid on the basis of information available at the time of the selection, or contain the largest volume of production, sales or exports which can reasonably be investigated within the time available.
93. Therefore, it must be held that, in using the samples, the Union institutions, in view of their broad discretion, did not infringe the combined provisions of Articles 3 and 17 of the basic regulation or violate the principle of equal treatment.