Grünwald Logistik Service GmbH (GLS) v Hauptzollamt Hamburg-Stadt.
Date: 2012-03-22
18. It should be noted that, under Article 3(1) of the definitive regulation, the amounts secured by way of the provisional anti-dumping duty pursuant to the provisional regulation are to be definitively collected at the rate of the provisional duty. Consequently, since, in those circumstances, GLS may place no reliance on any legal effect arising out of the provisional regulation (see, to that effect, Joined Cases C‑305/86 and C‑160/87 Neotype Techmashexport  v Commission and Council  [1990] ECR I‑2945, paragraph 13 and case‑law cited), it must be found that the question referred for a preliminary ruling relates only to the validity of the definitive regulation.
19. First, it should be noted that, as far as concerns dumping, the determination of normal value constitutes one of the essential steps required to prove the existence of any dumping. Article 2(1) of the basic regulation lays down the general principle in accordance with which the normal value must, as a rule, be based on the prices paid or payable, in the ordinary course of trade, by independent customers in the exporting country.
20. Second, it should be noted that Article 2(7)(a) of the basic regulation provides that in the case of imports from non-market economy countries, in derogation from the rules set out in paragraphs 1 to 6 of Article 2, normal value must, as a rule, 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 (see Case C‑26/96 Rotexchemie  [1997] ECR I‑2817, paragraph 9).
21. Under the second subparagraph of Article 2(7)(a) of the basic regulation, an appropriate market economy third country is to be selected in a not unreasonable manner, due account being taken of any reliable information made available at the time of selection. Indeed, it is for the European Union institutions, whilst taking account of the possible alternatives, to try to find a third country in which the prices for a like product are formed in circumstances which are as similar as possible to those in the country of export, provided that it is a market economy country.
22. The exercise of the European Union institutions’ discretion is subject to review by the Court. As regards the choice of analogue country, it is desirable, in particular, to verify that those institutions have not neglected to take account of essential factors for the purpose of establishing the appropriate nature of the country chosen and that the information contained in the documents in the case was considered with all the care required for the view to be taken that the normal value was determined in an appropriate and not unreasonable manner (Case C‑16/90 Nölle  [1991] ECR I‑5163, paragraphs 12 and 13).
24. It is therefore apparent from the wording and scheme of that provision that the main method of determining the normal value in the case of imports from non-market economy countries is that of ‘the price or constructed value in a market economy third country’ or ‘the price from such a third country to other countries, including the [European Union]’. Failing that, the stated alternative method of determining the normal value is that that value is to be determined ‘on any other reasonable basis, including the price actually paid or payable in the [European Union] for the like product, duly adjusted if necessary to include a reasonable profit margin’.
25. The use of that wording in Article 2(7)(a) of the basic regulation shows that the aim of according that priority to the main method laid down by the provision is to obtain a reasonable determination of the normal value in the country of export through the choice of a third country in which the price for a like product is formed in circumstances which are as similar as possible to those in the country of export, provided that it is a market economy country.
29. In that connection, in the Notice of initiation of an anti-dumping proceeding concerning imports of certain prepared or preserved citrus fruits (namely mandarins, etc.) originating in the People’s Republic of China (OJ 2007 C 246, p. 15), the Commission stated that, in accordance with the information in the complaint, the product concerned is not produced in significant quantities outside the European Union and China, and that interested parties were invited to comment on the choice of analogue country pursuant to the third subparagraph of Article 2(7)(a) of the basic regulation. Recital 41 of the provisional regulation states that two Chinese exporting producers and an association of importers disagreed with basing the normal value on the prices paid or payable in the European Union but did not offer any other appropriate solution.
30. However, Article 2(7)(a) of the basic regulation, under which priority is accorded to the main method laid down by that provision — which consists in determining normal value on the basis of the price or constructed value in a market economy third country — requires the European Union institutions to examine with all due care the information they possess, including, in particular, Eurostat statistics, in order to ascertain whether it is possible to select an analogue country for the purposes of that provision.
32. As the Advocate General stated in points 101 and 102 of his Opinion, the Commission has an obligation to consider on its own initiative all the information available, since in an anti-dumping investigation, it does not act as an arbitrator whose remit is limited to making an award solely on the basis of the information and the evidence provided by the parties to the investigation. In that connection, it should be noted that Article 6(3) and (4) of the basic regulation authorises the Commission to request Member States to supply information to it and to carry out all necessary checks and inspections.