Philips Lighting Poland S.A. and Philips Lighting BV v Council of the European Union.
Date: 2015-09-08
49. It must be noted, first of all, that Article 5 of the basic regulation governs precisely the conditions under which a complaint ‘by any natural or legal person, or any association not having legal personality, acting on behalf of the Community industry’ results in the opening of an anti-dumping investigation. In this respect, Article 5(4) provides that, in order to be considered to have been made by the Community industry, a complaint must satisfy cumulatively two conditions relating to the size of the support for it. First, the complaint must be supported ‘by those Community producers whose collective output constitutes more than 50% of the total production of the like product produced by that portion of the Community industry expressing either support for or opposition to the complaint’. Secondly, the complaint must be supported by Community producers accounting for at least 25% of total production of the like product produced by the Community industry.
51. There is no provision in the basic regulation as regards the measures to be taken by the Commission, during the course of the investigation, if the support of the producers for the complaint or request for a review falls.
52. However, since, in the case where a complaint or request for a review is withdrawn, the EU institutions concerned may, by virtue of Articles 9(1) and 11(5) of the basic regulation, continue with the investigation, that must apply a fortiori , as the General Court held in paragraph 85 of the judgment under appeal, when the degree of support for a complaint or request for a review merely falls.
53. It must therefore be found that a fall in the Community producers’ support for a complaint or a request for a review is not such as to lead necessarily to the termination of the investigation, even if such a fall implies that that support corresponds to a level of production which is below one of the two thresholds laid down in Article 5(4) of that regulation.
54. Such an interpretation is all the more appropriate since, as the Advocate General observed in point 118 of his Opinion, during the investigation the positions of the representatives of the Community industry may change in opposite directions. Such variations cannot impede the proper conduct of the investigation at issue.
60. According to the settled case-law of the Court, EU legislation must, so far as possible, be interpreted in a manner that is consistent with international law, in particular where its provisions are intended specifically to give effect to an international agreement concluded by the European Union (see judgment in SCF , C‑135/10, EU:C:2012:140, paragraph 51 and the case-law cited).
63. The 1994 Anti-Dumping Agreement has recourse, essentially, to the same two options for the purpose of defining the concept of ‘domestic industry’. As regards the second option, the decisive factor in both the 1994 Anti-Dumping Agreement and the basic regulation is the concept of ‘major proportion’ of the total domestic or Community production.
64. As regards that second option, the interpretation of which alone is the subject of the second ground of appeal, it must be noted that, unlike Article 4.1 of the 1994 Anti-Dumping Agreement, Article 4(1) of the basic regulation, concerning the definition of the Community industry, clarifies the concept of ‘major proportion’ of the total Community production of like products by a reference to Article 5(4) of that regulation.
65. That reference constitutes an additional factor in relation to the definition in Article 4.1 of the 1994 Anti-Dumping Agreement.
68. By contrast, 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. That 25% threshold alone is therefore relevant to determining 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.
69. In those circumstances, it must be found that Articles 4(1) and 5(4) of the basic regulation, read in the light of Article 4.1 of the Anti-Dumping Agreement, can be construed as referring solely to the minimum 25% threshold. 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.
70. Where the combined output of those Community 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.