Europe Chemi-Con (Deutschland) GmbH v Council of the European Union.
Date: 2005-01-27
33. As regards the first ground of appeal, as the Advocate General observed in paragraphs 36 to 38 of his Opinion, it matters little whether the principle set out in Article 9(5) of the basic regulation is described as the ‘principle of equal treatment’ or the ‘principle of non-discrimination’. They are simply two labels for a single general principle of Community law, which prohibits both treating similar situations differently and treating different situations in the same way unless there are objective reasons for such treatment (see, inter alia, Case C-442/00 Rodríguez Caballero  [2002] ECR I-11915, paragraph 32 and the case-law cited). It is clear from paragraphs 50, 51 and 57 of the judgment under appeal that the Court of First Instance examined the treatment given to imports of LAECs from Japan, the United States and Thailand in the light of that principle, as set out, in particular, in Article 9(5). Accordingly, Chemi-Con cannot claim that, in paragraph 48 of the judgment under appeal, the Court of First Instance failed to have regard to the principle whose infringement Chemi-Con was pleading before it.
49. It follows that the reference made by the Court of First Instance to Article 11(2) of the basic regulation as the legislative basis for the difference in treatment between imports subject to a review and those giving rise to an initial investigation cannot be seen as relating to a purely formal aspect of the existence of that specific provision. That reference necessarily presupposes that, since that regulation provides expressly that an anti-dumping measure about to expire remains in force pending the results of the review, if one is conducted, it can be inferred that a review procedure is, as a rule, objectively different from that of an initial investigation, which is governed by other provisions of the same regulation.
50. The objective difference between the two proceedings lies in the fact that imports subject to a review proceeding are those on which definitive anti-dumping duties have already been imposed and in respect of which sufficient evidence has generally been adduced to establish that the expiry of those measures would be likely to result in a continuation or recurrence of dumping and injury. On the other hand, where imports are subject to an initial investigation, the purpose of that investigation is precisely to determine the existence, degree and effect of any alleged dumping even if the initiation of such an investigation presupposes the existence of sufficient evidence to justify the initiation of that procedure/proceeding. It must therefore be held that, quite apart from the formal aspect noted by the Court of First Instance in paragraph 57 of the judgment under appeal, the difference in treatment recorded in this case was justified in substantive terms because, in the light of the relevant provisions of the basic regulation, the imports which gave rise to the imposition of a definitive anti-dumping duty by the Council, because of their source, were not in the same situation as similar imports from other sources which were merely subject to an initial investigation.