Skatteministeriet v Baby Dan A/S.
Date: 2018-11-15
47


In the judgment of 11 June 2015, Baby Dan (C‑272/14, not published, EU:C:2015:388, paragraphs 29 to 40), the Court considered that the characteristics and objective properties of the article at issue allowed it to be classified under CN heading 7318 as ‘screws, bolts, nuts, coach screws, … and similar articles, of iron or steel’.
49


According to the Court’s case-law, the general rules for the interpretation of the CN provide that the classification of goods is to be determined according to the terms of the headings and any section or chapter notes, the titles of sections, chapters and sub-chapters being provided for ease of reference only (judgment of 11 June 2015, Baby Dan, not published, C‑272/14, EU:C:2015:388, paragraph 25).
51


The Court held in the judgment of 11 June 2015, Baby Dan (C‑272/14, not published, EU:C:2015:388, paragraph 37), that, having regard to its obvious visual similarity with the articles for which it is common ground that they come under CN heading 7318, and to its characteristics and objective properties, the article at issue may be classified under that CN heading.
53


It follows that the classification of the article at issue under CN heading 7318 precludes, in accordance with that Note 2(a), the classification of that article as a ‘part’ of another product, here, a child safety gate (see, by analogy, judgment of 12 December 2013, HARK, C‑450/12, EU:C:2013:824, paragraph 40).
55


Second, the conclusion in paragraph 53 of the present judgment is also confirmed by the HS Explanatory Note to Section XV, which contains, inter alia, Chapter 73. In that regard, it should be recalled that, according to settled case-law, even though the Explanatory Notes to the HS lack binding force, they are an important means of ensuring the uniform application of the Common Customs Tariff and, as such, may be regarded as useful aids to its interpretation (see, to that effect, judgment of 11 June 2015, Baby Dan, C‑272/14, not published, EU:C:2015:388, paragraph 27 and the case-law cited). The HS Explanatory Note relating to Section XV indicates, under letter C, ‘Parts of articles’, that ‘parts of general use … presented separately are not considered as parts of articles, but are classified in the headings of this Section appropriate to them’.
60


However, it is clear from the judgment of 11 June 2015, Baby Dan (C‑272/14, not published, EU:C:2015:388, paragraphs 30, 31, 34, 35 and 37), that the article at issue has the characteristics and properties of ‘screws and bolts’ coming under CN heading 7318, in that, first, it consists of a threaded metal tube with a head fitted with a nut and that it enables the assembly of two or more parts between them, in such a way that it is possible to separate them subsequently without deterioration.
66


It should be recalled that, according to settled case-law of the Court, given their nature and structure, 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 (judgments of 16 July 2015, Commission v Rusal Armenal, C‑21/14 P, EU:C:2015:494, paragraph 38, and of 4 February 2016, C & J Clark International and Puma, C‑659/13 and C‑34/14, EU:C:2016:74, paragraph 85 and the case-law cited).
67


However, in two situations, which are the result of the EU legislature’s own intention to limit its discretion in the application of the WTO rules, the Court has accepted, exceptionally, that it is for the Courts of the European Union, 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 (judgment of 16 July 2015, Commission v Rusal Armenal, C‑21/14 P, EU:C:2015:494, paragraphs 40 and 41, and of 4 February 2016, C & J Clark International and Puma, C‑659/13 and C‑34/14, EU:C:2016:74, paragraph 87).
71


Accordingly, in so far as, in the light of the implementing regulations subsequent to the contested regulation, namely Implementing Regulations No 924/2012 and 2016/278, the Union excluded repayment of anti-dumping duties paid under the contested regulation, it should be considered that it did not in any way intend to give effect to a specific obligation assumed in the context of the WTO (see, by analogy, judgment of 27 September 2007, Ikea Wholesale, C‑351/04, EU:C:2007:547, paragraph 35).
72


Second, although it is true that recital 5 of the Basic Regulation states that the language of the 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 the Anti-Dumping Agreement when adopting the Basic Regulation, it did not, however, show the intention of transposing all of those rules in that regulation (judgments of 16 July 2015, Commission v Rusal Armenal, C‑21/14 P, EU:C:2015:494, paragraph 52, and of 4 February 2016, C & J Clark International and Puma, C‑659/13 and C‑34/14, EU:C:2016:74, paragraph 90).
74


Article 4(1) of the Basic Regulation defines the concept ‘Community industry’ as being the Community producers as a whole of the like product or to those of them whose collective output of the products constitutes a major proportion, as defined in Article 5(4) of that regulation, of the total production of those products. As regards the second part of that option, although the decisive factor in both the Anti-Dumping Agreement and the Basic Regulation is the concept of ‘major proportion’ of the total domestic or Community production, it must be noted that, unlike Article 4.1 of the Anti-Dumping Agreement, Article 4(1) of the Basic Regulation clarifies the concept of ‘major proportion’ of the total Community production of like products by a reference to Article 5(4) of that regulation. That reference constitutes an additional factor in relation to the definition in Article 4.1 of the Anti-Dumping Agreement (see, to that effect, judgment of 8 September 2015, Philips Lighting Poland and Philips Lighting v Council, C‑511/13 P, EU:C:2015:553, paragraphs 63 to 65).
79


In that regard, the Court has already held that the 25% threshold refers to ‘total production of the like product produced by the Community industry’ and relates to the percentage of Community producers out of that total production which support the complaint. Solely that 25% threshold is therefore relevant for the determination of whether those producers represent ‘a major proportion’ of the total production of the like product produced by the Community industry, within the meaning of Article 4(1) of the Basic Regulation (judgment of 8 September 2015, Philips Lighting Poland and Philips Lighting v Council, C‑511/13 P, EU:C:2015:553, paragraph 68).
80


By the reference to that threshold, Article 4(1) of the Basic Regulation thus simply makes clear that a combined output of the Community producers supporting the complaint and not reaching 25% of the total Community production of the like product cannot, in any event, be regarded as sufficiently representative of the Community production. Where the combined output of those producers exceeds that threshold, anti-dumping duties may be imposed or maintained if the EU institutions concerned are able to establish, taking into account all the relevant facts of the case, that the injury stemming from the imports of the dumped product affects a major proportion of the total Community production of the like products (judgment of 8 September 2015, Philips Lighting Poland and Philips Lighting v Council, C‑511/13 P, EU:C:2015:553, paragraphs 69 and 70).
84


Thirdly, the limitation of the definition of the Community industry to only those Community producers which supported the complaint at the origin of the anti-dumping investigation does not, in itself, and in the absence of any other element capable of calling into question the representativeness of those producers, make it possible to consider that the determination in the contested regulation of the existence of the injury to the Community industry is not based on positive evidence and does not involve an objective examination, within the meaning of Article 3(2) of the Basic Regulation (see, by analogy, judgment of 4 February 2016, C & J Clark International and Puma, C‑659/13 and C‑34/14, EU:C:2016:74, paragraph 157).