C & J Clark International Ltd v The Commissioners for Her Majesty's Revenue & Customs and Puma SE v Hauptzollamt Nürnberg.
Date: 2016-02-04
38


In the judgments, the Court held, first of all, that the definitive regulation was vitiated by an infringement of the obligation imposed upon the Commission to examine the claims of producers for market economy treatment and to adjudicate upon each of those claims within a period of three months from the initiation of its investigation, in accordance with Article 2(7)(b) and (c) of Regulation No 384/96, including where the Commission has decided to use sampling as provided for in Article 17 of that regulation to calculate the dumping margins and the producers which have submitted those claims are not included in the sample selected (see, to this effect, judgments in Brosmann Footwear (HK) and Others v Council, C‑249/10 P, EU:C:2012:53, paragraphs 36 to 40, and Zhejiang Aokang Shoes v Council, C‑247/10 P, EU:C:2012:710, paragraphs 29 to 34).
39


Next, the Court found that it could not be ruled out that such an examination might have led to the imposition on the appellants in the cases giving rise to those judgments of a definitive anti-dumping duty different from the 16.5% duty applicable to them pursuant to Article 1(3) of the definitive regulation. That provision imposed a definitive anti-dumping duty of 9.7% on the only Chinese producer which was in the sample selected by the Commission and obtained market economy treatment, namely Golden Step. Had the Commission found that market economy conditions prevailed also for the appellants, which were not included in the sample, but which had claimed market economy treatment, they ought also to have benefited from that rate when the calculation of an individual dumping margin was not possible (see, to this effect, judgments in Brosmann Footwear (HK) and Others v Council, C‑249/10 P, EU:C:2012:53, paragraph 42, and Zhejiang Aokang Shoes v Council, C‑247/10 P, EU:C:2012:710, paragraph 36).
40


Finally, the Court held that it was not appropriate to limit the temporal effects of the interpretation of Regulation No 384/96 that is referred to in paragraph 38 of the present judgment (judgment in Zhejiang Aokang Shoes v Council, C‑247/10 P, EU:C:2012:710, paragraphs 39 to 41).
56


It is settled case-law that the general principle which guarantees any litigant the right to plead, in an action brought against a national measure which adversely affects him, that the EU act forming the basis for that measure is invalid does not preclude such a right from being subject to the condition that the person concerned did not have the right to request the EU judicature directly to annul it, under Article 263 TFEU. However, it is only if it can be held that a person would undoubtedly have been entitled to request the annulment of the act in question that he is prevented from pleading its invalidity before the national court having jurisdiction (see, to this effect, judgments in TWD Textilwerke Deggendorf, C‑188/92, EU:C:1994:90, paragraph 23; Valimar, C‑374/12, EU:C:2014:2231, paragraphs 28 and 29; and TMK Europe, C‑143/14, EU:C:2015:236, paragraph 18).
57


It is therefore only if it could be held that the regulations in dispute are undoubtedly of direct and individual concern to legal persons such as Clarks and Puma, within the meaning of the fourth paragraph of Article 263 TFEU, that they would be prevented from pleading before the referring courts that those regulations are invalid.
58


Next, it should be noted that regulations such as the regulations in dispute are of a legislative character inasmuch as they apply generally to the traders concerned (see, to this effect, judgments in Allied Corporation and Others v Commission, 239/82 and 275/82, EU:C:1984:68, paragraphs 11 and 12, and TMK Europe, C‑143/14, EU:C:2015:236, paragraph 18).
59


Finally, it should be pointed out that in its case-law the Court has identified certain categories of traders that may be individually concerned by a regulation imposing an anti-dumping duty, without prejudice to the possibility that other traders are individually concerned by reason of certain attributes which are peculiar to them and which differentiate them from all other persons (see, to this effect, judgments in Extramet Industrie v Council, C‑358/89, EU:C:1991:214, paragraph 16, and TMK Europe, C‑143/14, EU:C:2015:236, paragraph 22).
60


First, those of the producers and exporters of the product in question which have been charged with practising dumping on the basis of information relating to their business activities may be individually concerned (judgment in Valimar, C‑374/12, EU:C:2014:2231, paragraph 30 and the case-law cited).
61


Secondly, that may also be so in the case of importers of that product whose resale prices were taken into account for the construction of export prices and which are consequently concerned by the findings relating to the existence of dumping (judgments in Nashua Corporation and Others vCommission and Council, C‑133/87 and C‑150/87, EU:C:1990:115, paragraph 15; Gestetner Holdings v Council and Commission, C‑156/87, EU:C:1990:116, paragraph 18; and TMK Europe, C‑143/14, EU:C:2015:236, paragraph 20).
62


Thirdly, that may further be so in the case of importers associated with exporters of the product in question, particularly where the export price has been calculated on the basis of those importers’ resale prices on the Union market and where the anti-dumping duty itself has been calculated on the basis of those resale prices (judgments in Neotype Techmashexport v Commission and Council, C‑305/86 and C‑160/87, EU:C:1990:295, paragraphs 19 and 20, and TMK Europe, C‑143/14, EU:C:2015:236, paragraph 21).
64


It is true that, in particular circumstances, the Court has already held, in the light of the case-law cited in paragraph 61 of the present judgment, that a trader which opted for the abovementioned economic model had to be regarded as individually concerned by a regulation which imposed anti-dumping duties (see, to this effect, judgments in Nashua Corporation and Others v Commission and Council, C‑133/87 and C‑150/87, EU:C:1990:115, paragraphs 3 and 17 to 20, and Gestetner Holdings v Council and Commission, C‑156/87, EU:C:1990:116, paragraphs 3 and 20 to 23).
73


As the Advocate General has noted in point 59 of his Opinion, importers such as Clarks and Puma, who have paid an anti-dumping duty, have a clear interest and capacity of their own to submit, in actions such as those in the main proceedings, that the regulations imposing that duty are invalid on the ground that the duty was imposed without the Commission having first adjudicated, in accordance with the rules laid down by Regulation No 384/96, upon the claims for market economy treatment or individual treatment submitted by the producers or exporters of the products concerned. Failure to take account of those claims is liable to have an adverse effect on the anti-dumping duty that will be imposed, at the end of the procedure, on the products of the traders concerned (see, to this effect, judgments in Brosmann Footwear (HK) and Others v Council, C‑249/10 P, EU:C:2012:53, paragraph 42, and Zhejiang Aokang Shoes v Council, C‑247/10 P, EU:C:2012:710, paragraph 36).
82


In the first place, it is clear from Article 216(2) TFEU that international agreements concluded by the European Union are binding upon the EU institutions and, consequently, prevail over the measures which they lay down (judgment in Intertanko and Others, C‑308/06, EU:C:2008:312, paragraph 42 and the case-law cited).
84


In the second place, it is apparent from settled case-law that the provisions of an international agreement to which the European Union is a party can be relied upon in support of an action for annulment of a measure of secondary EU legislation, of a plea that such a measure is invalid or of an action for compensation only if, first, the nature and the broad logic of the agreement in question do not preclude this and, secondly, the provisions relied upon appear, as regards their content, to be unconditional and sufficiently precise (see, to this effect, judgments in Intertanko and Others, C‑308/06, EU:C:2008:312, paragraphs 43 and 45, and FIAMM and Others v Council and Commission, C‑120/06 P and C‑121/06 P, EU:C:2008:476, paragraphs 110 and 120).
85


The Court has repeatedly held that, given their nature and structure, the WTO agreements are not in principle among the rules in the light of which the legality of measures adopted by the EU institutions may be reviewed (see, to this effect, judgments in Portugal v Council, C‑149/96, EU:C:1999:574, paragraph 47, and Commission v Rusal Armenal, C‑21/14 P, EU:C:2015:494, paragraph 38).
86


The Court has pointed out that to accept that the EU judicature has the direct responsibility for ensuring that EU law complies with the WTO agreements would effectively deprive the European Union’s legislative or executive bodies of the discretion which the equivalent bodies of the European Union’s trading partners enjoy. It is not in dispute that some of the contracting parties, including the European Union’s most important trading partners, have concluded from the subject matter and purpose of the WTO agreements that they are not among the rules applicable by their courts when reviewing the legality of their rules of domestic law. Such lack of reciprocity, if accepted, would risk introducing an imbalance in the application of the WTO agreements (judgments in Portugal v Council, C‑149/96, EU:C:1999:574, paragraphs 43 to 46, and Commission v Rusal Armenal, C‑21/14 P, EU:C:2015:494, paragraph 39).
87


Nonetheless, in two situations the Court has accepted, by way of exception, that it is for the EU judicature, if necessary, to review the legality of an EU measure and of the measures adopted for its application in the light of the WTO agreements. The first such situation is where the European Union intended to implement a particular obligation assumed in the context of those agreements and the second is where the EU measure at issue refers explicitly to specific provisions of those agreements (see, to this effect, judgment in Commission v Rusal Armenal, C‑21/14 P, EU:C:2015:494, paragraphs 40 and 41 and the case-law cited).
90


Next, whilst it is true that recital 5 of Regulation No 384/96 states that the language of the WTO Anti-Dumping Agreement should be brought into EU legislation ‘as far as possible’, that expression must be understood as meaning that, even if the EU legislature intended to take into account the rules of that agreement when adopting Regulation No 384/96, it did not, however, show the intention of transposing each of those rules in that regulation (judgment in Commission v Rusal Armenal, C‑21/14 P, EU:C:2015:494, paragraph 52).
91


In particular, the Court has already observed that Article 2(7) of Regulation No 384/96 is the expression of the EU legislature’s intention to adopt an approach specific to the EU legal order, by laying down a special regime of detailed rules relating to the calculation of normal value for imports from non-market economy countries (see, to this effect, judgment in Commission v Rusal Armenal, C‑21/14 P, EU:C:2015:494, paragraphs 47 to 50 and 53). The second subparagraph of Article 9(5) of Regulation No 384/96 refers to Article 2(7) of that regulation and constitutes an integral part of the regime which it lays down.
93


In the third place, it should be determined whether that conclusion might be called into question by the two DSB reports relied upon by the referring court. The first of those reports relates to the case ‘European Communities — Definitive Anti-Dumping Measures on Certain Iron or Steel Fasteners from China (WT/DS397/R)’, as mentioned in paragraph 20 of the present judgment. The second of those reports, which takes up in certain regards the substance of the first report, relates to the case ‘European Union — Anti-Dumping Measures on Certain Footwear from China (WT/DS405/R)’ and rules, inter alia, on the compatibility of the regulations in dispute with the WTO agreements.
94


It is clear from the case-law that, having regard to the nature and the broad logic of the dispute settlement system established by the WTO agreements and the considerable importance which that system accords to negotiation between the contracting parties, the EU judicature cannot, in any event, review the legality or validity of EU measures in the light of the WTO rules as long as the reasonable period granted to the European Union for complying with rulings and recommendations of the DSB finding non-compliance with those rules has not expired, as otherwise grant of that period would be ineffective (see, to this effect, judgments in Biret International v Council, C‑93/02 P, EU:C:2003:517, paragraph 62, and X and X BV, C‑319/10 and C‑320/10, EU:C:2011:720, paragraph 41).
95


Furthermore, the mere fact that that period has expired does not mean that the European Union has exhausted the possibilities under that dispute settlement system of finding a solution to the dispute between it and other parties. Accordingly, to require the EU judicature, merely because the period has expired, to review the legality or validity of the EU measures concerned in the light of the WTO rules and of the rulings and recommendations of the DSB finding non-compliance with them could have the effect of undermining the European Union’s position in its attempt to reach a solution which is both consistent with the WTO rules and mutually acceptable to the parties to the dispute (see, to this effect, judgments in Van Parys, C‑377/02, EU:C:2005:121, paragraphs 51 and 54; FIAMM and Others v Council and Commission, C‑120/06 P and C‑121/06 P, EU:C:2008:476, paragraphs 117 and 125 to 130; and X and X BV, C‑319/10 and C‑320/10, EU:C:2011:720, paragraphs 36 and 37).
96


Therefore, even after that period has expired, a person cannot rely on such rulings and recommendations of the DSB in order to secure a review of the legality or validity of the EU institutions’ action, at any rate outside situations where, following those rulings and recommendations, the European Union has intended to assume a particular obligation (see, to this effect, judgments in Van Parys, C‑377/02, EU:C:2005:121, paragraphs 40 and 41; Ikea Wholesale, C‑351/04, EU:C:2007:547, paragraphs 30 to 35; and X and X BV, C‑319/10 and C‑320/10, EU:C:2011:720, paragraph 37).
97


In this instance, first, by the report relating to the case ‘European Union — Anti-Dumping Measures on Certain Footwear from China (WT/DS405/R)’, the DSB admittedly decided that some of the provisions of Article 9(5) of Regulation No 384/96 were incompatible with certain of the WTO rules both ‘as such’ and ‘as applied’ in the regulations in dispute. However, it merely recommended that Regulation No 1225/2009, which had in the meantime repealed and replaced that regulation, be brought by the European Union into conformity with those rules. Thus, it made no specific recommendation relating to the regulations in dispute.
98


Secondly, there is nothing which enables the view to be taken that the EU legislature intended to assume a particular obligation as regards the regulations in dispute following that report or the DSB report relating to the case ‘European Communities — Definitive Anti-Dumping Measures on Certain Iron or Steel Fasteners from China (WT/DS397/R)’ by which it had already been concluded, on the same ground, that Article 9(5) of Regulation No 384/96 was incompatible with the WTO rules and it had been recommended that that provision be brought into conformity.
105


Next, Article 2(1) of Regulation No 384/96 lays down a basic rule that the determination of a product’s normal value, which constitutes one of the essential steps for proving the existence of any dumping, must normally be based on the prices paid or payable, in the ordinary course of trade, by independent customers in the exporting countries (see, to this effect, judgment in GLS, C‑338/10, EU:C:2012:158, paragraph 19).
106


However, in the case of imports from non-market economy countries, Article 2(7)(a) of Regulation No 384/96 provides that, in derogation from the basic rule referred to in the preceding paragraph of the present judgment, normal value is, as a rule, to 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 (judgments in GLS, C‑338/10, EU:C:2012:158, paragraph 20, and Council v Zhejiang Xinan Chemical Industrial Group, C‑337/09 P, EU:C:2012:471, paragraph 66).
108


As is apparent from the various regulations from which Article 2(7)(b) of Regulation No 384/96 stems, that arrangement is intended to enable producers subject to market economy conditions who have emerged in the countries concerned to obtain treatment corresponding to their individual situation, rather than to the overall situation of the country in which they are established (see, to this effect, judgments in Council v Zhejiang Xinan Chemical Industrial Group, C‑337/09 P, EU:C:2012:471, paragraphs 67 to 69, and Commission v Rusal Armenal, C‑21/14 P, EU:C:2015:494, paragraph 49).
109


In this context, the Court has held that, where claims under Article 2(7)(b) and (c) of Regulation No 384/96 are addressed to the Council and the Commission, it is incumbent upon them to assess whether the evidence supplied by the producers concerned is sufficient to show that the requisite criteria are fulfilled (see, to this effect, judgment in Council v Zhejiang Xinan Chemical Industrial Group, C‑337/09 P, EU:C:2012:471, paragraphs 70 and 107).
110


Furthermore, the Council and the Commission are obliged to adjudicate upon a claim for market economy treatment made by any producer established in a non-market economy country which is a member of the WTO at the date of the initiation of an anti-dumping investigation, including where they have recourse to sampling as provided for in Article 17 of Regulation No 384/96 (see, to this effect, judgments in Brosmann Footwear (HK) and Others v Council, C‑249/10 P, EU:C:2012:53, paragraphs 32 and 36 to 38, and Zhejiang Aokang Shoes v Council, C‑247/10 P, EU:C:2012:710, paragraphs 24, 29, 30 and 32).
111


Finally, the Court has held that the consequence of infringing that obligation is that the regulation by which the Council imposed anti-dumping duties, at the end of the investigation, is unlawful in so far as it imposes definitive anti-dumping duties, and definitively collects provisional anti-dumping duties, on the products from the producers concerned (see, to this effect, judgments in Brosmann Footwear (HK) and Others v Council, C‑249/10 P, EU:C:2012:53, paragraph 43, and Zhejiang Aokang Shoes v Council, C‑247/10 P, EU:C:2012:710, paragraph 37).
122


It is settled case-law that the need for the uniform application of an EU measure and, accordingly, for a uniform interpretation of that measure makes it impossible to consider one language version of the text in isolation, but requires that it be interpreted on the basis of both the real intention of its author and the aim which the latter seeks to achieve, in the light, in particular, of all the versions of it (judgment in X, C‑486/12, EU:C:2013:836, paragraph 19 and the case-law cited).
124


That said, these various factors resulting from the wording of Article 9(5) of Regulation No 384/96 do not enable the question to be answered whether, nevertheless, the Council and the Commission may not be so obliged when they have recourse to sampling. That provision should therefore be interpreted by considering not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it is part (see, to this effect, judgment in VEMW and Others, C‑17/03, EU:C:2005:362, paragraph 41 and the case-law cited). In this context, it is appropriate, in particular, to examine the relationship between, on the one hand, that provision and, on the other, Article 17 of Regulation No 384/96, which provides for sampling.
133


Moreover, such treatment would not be capable of being justified by the fact that the investigation involves a large number of parties, inasmuch as it is not possible to know before having examined the claims submitted pursuant to the second subparagraph of Article 9(5) of Regulation No 384/96 whether the number of exporting producers that are to be entitled to an individual duty is so large that, like what Article 17(3) of that regulation provides, it permits the calculation of individual dumping margins to be ruled out. That interpretation of Article 9(5) of Regulation No 348/96 would fail to have regard to the principle of equal treatment, in conformity with which any EU act must be interpreted (judgment in Chatzi, C‑149/10, EU:C:2010:534, paragraph 43).
139


It is clear from the very wording of Article 2(7)(c) of Regulation No 384/96 that a determination whether a producer which has claimed market economy treatment meets the criteria for its grant is to be made within three months of the initiation of the investigation (see, to this effect, judgments in Brosmann Footwear (HK) and Others v Council, C‑249/10 P, EU:C:2012:53, paragraph 39, and Zhejiang Aokang Shoes v Council, C‑247/10 P, EU:C:2012:710, paragraph 31).
140


However, it follows from the Court’s case-law that failure to comply with the time limit imposed in that article can result in the regulation adopted at the end of the procedure being annulled only if there is a possibility that, due to that irregularity, the procedure could have resulted in a different outcome. In addition, whilst the person who relies on such an irregularity cannot be required to show that, but for it, the regulation concerned would have had a content more favourable to its interests, that person must nevertheless demonstrate by concrete proof that such a possibility cannot be totally ruled out (see, to this effect, judgments in Foshan Shunde Yongjian Housewares & Hardware v Council, C‑141/08 P, EU:C:2009:598, paragraphs 81, 94 and 114, and Ningbo Yonghong Fasteners v Council, C‑601/12 P, EU:C:2014:115, paragraphs 34, 40 and 42).
152


First of all, Article 5 of Regulation No 384/96, as its heading indicates, merely governs the ‘initiation of [dumping investigation] proceedings’ under that regulation. In this respect, it provides in particular, in Article 5(4), that, in order to be considered to have been made by the Union industry, a complaint must satisfy each of two conditions relating to the size of the support for it. First, the complaint must be supported by Union producers whose collective output constitutes more than 50% of the total production of that portion of the Union industry expressing either support for or opposition to the complaint. Secondly, the complaint must be supported by Union producers accounting for at least 25% of total production of the Union industry (judgment in Philips Lighting Poland and Philips Lighting v Council, C‑511/13 P, EU:C:2015:553, paragraph 49).
153


On the other hand, there is no provision in Regulation No 384/96 relating to the measures to be taken, during the course of the investigation, if the support of the producers for the complaint falls, so that the Council and the Commission must be able to continue with the investigation, including where the degree of support for it falls and even if such a fall means that that support corresponds to a level of production which is below one of the two thresholds laid down in Article 5(4) of the regulation (see, to this effect, judgment in Philips Lighting Poland and Philips Lighting v Council, C‑511/13 P, EU:C:2015:553, paragraphs 51 to 54).
155


Next, it is clear from Article 3(1), (5) and (6) of Regulation No 384/96, relating to ‘determination of injury’, that the Council and the Commission must be able to establish, taking account of all the relevant facts of the case, that the imports under investigation cause material injury to ‘the [Union] industry’. This term is itself defined in Article 4(1) of that regulation as ‘the [Union] producers as a whole of the like products or … those of them whose collective output of the products constitutes a major proportion, as defined in Article 5(4), of the total [Union] production of those products’ (see, to this effect, judgment in Philips Lighting Poland and Philips Lighting v Council, C‑511/13 P, EU:C:2015:553, paragraphs 69 and 70).
157


In this instance, the mere fact that the Commission chose to limit the investigation that resulted in the definitive regulation to the sample which it selected does not in itself, in the absence of factors capable of calling the representativeness of that sample into question, enable the view to be taken that the definitive regulation does not satisfy the requirements laid down in Articles 3, 4(1) and 17 of Regulation No 384/96.
161


In this context, it is clear from the case-law that the wide discretion which the Council and the Commission enjoy in the sphere of the common commercial policy and, most particularly, in the realm of measures to protect trade does not relieve them of the obligation to have due regard to the evidence which has been submitted to them by the parties to the investigation (see, to this effect, judgments in GLS, C‑338/10, EU:C:2012:158, paragraphs 30 and 32, and Council v Zhejiang Xinan Chemical Industrial Group, C‑337/09 P, EU:C:2012:471, paragraph 107).
162


However, judicial review of the exercise of such a discretion must, in the context of an action founded on Article 263 TFEU as in that of a request for a preliminary ruling on validity submitted pursuant to Article 267 TFEU, 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 this effect, judgment in Valimar, C‑374/12, EU:C:2014:2231, paragraph 51 and the case-law cited).
169


In this context, the Council and the Commission are under an obligation to consider whether the injury on which they intend to base their conclusions does in fact derive from the dumped imports and must disregard any injury deriving from other factors, particularly from the conduct of Union producers themselves. To that end, it is for those institutions to ascertain whether the effects of those other factors were not such as to break the causal link between, on the one hand, the imports concerned and, on the other, the injury suffered by the Union industry. It is also for them to verify that the injury attributable to those other factors is not taken into account in the determination of injury. However, if the Council and the Commission find that, despite such factors, the injury caused by the dumped imports is material, the causal link between those imports and the injury suffered by the Union industry can consequently be established (see, to this effect, judgments in Transnational Company ‘Kazchrome’ and ENRC Marketing v Council, C‑10/12 P, EU:C:2013:865, paragraphs 23 to 25, and TMK Europe, C‑143/14, EU:C:2015:236, paragraphs 35 to 37).
170


In addition, it is for the persons pleading the illegality of an anti-dumping regulation to adduce arguments and evidence to show that factors other than those relating to the imports could have had such importance that they called into question the causal link between the injury suffered by the Union industry and the dumped imports (judgments in Transnational Company ‘Kazchrome’ and ENRC Marketing v Council, C‑10/12 P, EU:C:2013:865, paragraph 28, and TMK Europe, C‑143/14, EU:C:2015:236, paragraph 42).
180


In this context, it must be pointed out first of all that, where a person seeks annulment of an act from the EU judicature, the matter to be considered by the latter relates only to those provisions of the act which concern him. Provisions concerning other persons which have not been challenged do not form part of the matter to be decided by the EU judicature (judgments in Commission v AssiDomän Kraft Products and Others, C‑310/97 P, EU:C:1999:407, paragraph 53, and Nachi Europe, C‑239/99, EU:C:2001:101, paragraph 25).
181


Next, the scope of the annulment which the EU judicature pronounces in such an action, where appropriate, may not go further than that sought by the applicant (judgments in Commission v AssiDomän Kraft Products and Others, C‑310/97 P, EU:C:1999:407, paragraph 52, and Nachi Europe, C‑239/99, EU:C:2001:101, paragraph 24).
182


Finally, although the authority erga omnes exerted by annulling judgments of the EU judicature attaches to both their operative part and their ratio decidendi, it cannot entail annulment of an act not challenged before the EU judicature even if that act is vitiated by the same illegality (judgments in Commission v AssiDomän Kraft Products and Others, C‑310/97 P, EU:C:1999:407, paragraph 54, and Nachi Europe, C‑239/99, EU:C:2001:101, paragraph 26).
183


On those grounds, if, in an action for annulment brought by a person directly and individually concerned by an act of general application, such as a regulation which imposed anti-dumping duties, the EU judicature annuls that act in so far as it concerns that person, such partial annulment does not affect the legality of the act’s other provisions, including the provisions which imposed anti-dumping duties on products other than those manufactured, exported or imported by that person (see, to this effect, judgment in Nachi Europe, C‑239/99, EU:C:2001:101, paragraphs 10, 24 and 27).
184


On the contrary, where such provisions have not been challenged within the time limit laid down in Article 263 TFEU by the persons who would have standing to seek their annulment, they are definitive as against those persons (judgment in Nachi Europe, C‑239/99, EU:C:2001:101, paragraph 29 and the case-law cited). Furthermore, until such time as they are withdrawn or declared invalid following a reference for a preliminary ruling or a plea of illegality, those provisions are presumed to be lawful, which means that they have full legal effect in relation to any other person (see, to this effect, judgment in CIVAD, C‑533/10, EU:C:2012:347, paragraph 39 and the case-law cited).
187


First of all, it is apparent from the very wording and scheme of Article 236 of the Customs Code that, whilst anti-dumping duties which, when they were paid, were not legally owed must, in principle, be repaid by the customs authorities in accordance with Article 236(1), such repayment can, however, take place only if the conditions to which it is subject, including the condition set out in Article 236(2), are satisfied (judgments in Ikea Wholesale, C‑351/04, EU:C:2007:547, paragraph 67; Trubowest Handel and Makarov v Council and Commission, C‑419/08 P, EU:C:2010:147, paragraph 25; and CIVAD, C‑533/10, EU:C:2012:347, paragraph 20).
188


It follows, in particular, that the trader which has paid those duties is able, in principle, to claim their repayment only if and in so far as the three-year period laid down for that purpose in the first subparagraph of Article 236(2) of the Customs Code has not expired (see, to this effect, judgment in CIVAD, C‑533/10, EU:C:2012:347, paragraph 21).
190


Next, it is clear from Article 236 of the Customs Code, interpreted in its context, that repayment of anti-dumping duties that have been paid by traders is made only under certain conditions and in cases specifically provided for, so that it is an exception to the normal import and export procedure laid down by the Customs Code and, therefore, the provisions which govern it are to be interpreted strictly (judgments in Netherlands v Commission, C‑156/00, EU:C:2003:149, paragraph 91, and CIVAD, C‑533/10, EU:C:2012:347, paragraph 24).
191


Therefore, the concepts of unforeseeable circumstances and force majeure in the second subparagraph of Article 236(2) of the Customs Code, allowing an extension of the three-year period during which a trader may claim repayment of anti-dumping duties, starting from the date on which their amount was communicated to it, must be interpreted strictly (see, to this effect, judgment in CIVAD, C‑533/10, EU:C:2012:347, paragraph 25).
192


In the context of that legislation, those concepts are both characterised, in particular, by an objective element relating to the fact that they involve the existence of abnormal circumstances extraneous to the person relying on them (see, to this effect, judgment in CIVAD, C‑533/10, EU:C:2012:347, paragraphs 27 and 28 and the case-law cited).
193


Neither the fact that one of the two regulations in dispute was annulled in part by the Court, in so far as it concerned persons other than Puma, in the judgments in Brosmann Footwear (HK) and Others v Council (C‑249/10 P, EU:C:2012:53) and Zhejiang Aokang Shoes v Council (C‑247/10 P, EU:C:2012:710), nor the fact that one or other of those acts may be declared invalid in whole or in part in response to the questions referred to the Court in the present cases can be regarded as amounting to an abnormal or extraneous circumstance, within the meaning required in order to establish the existence of unforeseeable circumstances or force majeure (see, to this effect, judgment in CIVAD, C‑533/10, EU:C:2012:347, paragraph 30).