Simon, Evers & Co. GmbH v Hauptzollamt Hamburg-Hafen.
Date: 2014-09-04
26. 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, the judgment in Hoesch Metals and Alloys , C‑373/08, EU:C:2010:68, paragraph 59).
27. 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 EU law on the sole ground that that question has been put before it by one of the parties in its written observations (see the judgment in MSD Sharp & Dohme , C‑316/09, EU:C:2011:275, paragraph 23 and the case-law cited).
28. In those circumstances, it is inappropriate to extend the inquiry into the validity of the regulation at issue to those other grounds of invalidity, which the referring court has not referred to (see the judgment in Nuova Agricast , C‑390/06, EU:C:2008:224, paragraph 44).
Validity of the regulation at issue
29. 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 institutions of the EU 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 the judgment in Council v Interpipe Niko Tube and Interpipe NTRP , C‑191/09 P and C‑200/09 P, EU:C:2012:78, paragraph 63 and the case-law cited).
31. According to Article 13(3) of that regulation, it is for the Commission to initiate an investigation on the basis of evidence which prima facie suggests circumvention practices. If the facts ascertained during that investigation make it possible to conclude that such circumvention exists, the Commission is to submit a proposal on the extension of anti-dumping measures to the Council.
32. However, there is no provision in the basic regulation which grants the Commission, in the context of a circumvention investigation, the power to require producers or exporters referred to in a complaint to participate in the investigation or to provide information. The Commission is therefore reliant on the voluntary cooperation of the interested parties to provide it with the necessary information.
33. That is why the EU legislature provided in Article 18(1) of the basic regulation that, in cases in which any interested party refuses access to, or otherwise does not provide, necessary information, or significantly impedes the investigation, provisional or final findings, affirmative or negative, may be made on the basis of the facts available.
34. Furthermore, Article 18(6) of the same regulation states that if an interested party does not cooperate, or cooperates only partially, so that relevant information is thereby withheld, the result may be less favourable to the party than if it had cooperated.
35. While it is true that the basic regulation, and particularly Article 13(3) thereof, establishes the principle that the burden of proof of a circumvention is imposed on the EU institutions, the fact remains that, by providing, in a situation where the interested parties fail to cooperate, that those institutions may base the findings of an investigation of the existence of circumvention on the data available and that the result may be less favourable to the parties who have not cooperated with it, Article 18(1) and (6) of the basic regulation is clearly intended to lessen that burden.
36. It is true that, as the Advocate General noted in points 68 and 69 of his Opinion, it is apparent from Article 18 of the basic regulation that it was not the intention of the EU legislature to establish a legal presumption making it possible to infer the existence of circumvention directly from the non-cooperation of the parties interested or concerned, and thereby exempting the EU institutions from any requirement to adduce proof. However, given that it is possible to making findings, even definitive findings, on the basis of the facts available and to treat a party who does not cooperate or does not cooperate fully less favourably than if it had cooperated, it is equally evident that the EU institutions are authorised to act on the basis of a body of consistent evidence showing the existence of circumvention for the purposes of Article 13(1) of the basic regulation.
37. Any other approach would risk undermining the efficiency of the EU trade defence measures each time the EU institutions are faced with non-cooperation in the context of an investigation seeking to establish whether there has been circumvention.
48. Furthermore, as the Advocate General stated in point 87 of his Opinion, the definition of ‘circumvention’ is set out in Article 13(1) of the basic regulation in very general terms which leave a broad margin of discretion to the EU institutions, since no details of the nature and form of the ‘change in the pattern of trade between third countries and the Union’ are given.
56. In the context of a situation characterised by the complete refusal to cooperate with the circumvention investigation, the EU institutions were entitled to act on the basis of the evidence available in order to find the existence of a practice, process or work in Thailand aiming solely at the circumvention of the anti-dumping duty affecting imports originating in China. In those circumstances, it was for the parties concerned to prove that there were reasonable grounds justifying those activities, other than avoiding that anti-dumping duty (see, by analogy, the judgment in Brother International , C‑26/88, EU:C:1989:637, paragraph 29).