Ikea Wholesale Ltd v Commissioners of Customs & Excise.
Date: 2007-09-27
1. This reference for a preliminary ruling concerns, first, the validity of Council Regulation (EC) No 2398/97 of 28 November 1997 imposing a definitive anti-dumping duty on imports of cotton-type bed linen originating in Egypt, India and Pakistan (OJ 1997 L 332, p. 1) and, second, the compatibility with Community law of Council Regulation (EC) No 1644/2001 of 7 August 2001 amending Regulation (EC) No 2398/97 and suspending its application with regard to imports originating in India (OJ 2001 L 219, p. 1), Council Regulation (EC) No 160/2002 of 28 January 2002 amending Council Regulation (EC) No 2398/97 and terminating the proceeding with regard to imports originating in Pakistan (OJ 2002 L 26, p. 1), and Council Regulation (EC) No 696/2002 of 22 April 2002 confirming the definitive anti-dumping duty imposed on imports of cotton-type bed linen originating in India by Regulation (EC) No 2398/97, as amended and suspended by Council Regulation (EC) No 1644/2001 (OJ 2002 L 109, p. 3) (‘the subsequent regulations’).
29. It must be recalled, as a preliminary point that, according to settled case-law, given their nature and structure, the WTO agreements are not in principle among the rules in the light of which the Court is to review the legality of measures adopted by the Community institutions (Case C-93/02 P Biret International  v Council [2003] ECR I‑10497, paragraph 52, and Case C-377/02 Van Parys  [2005] ECR I-1465, paragraph 39 and the case-law cited).
30. It is only where the Community has intended to implement a particular obligation assumed in the context of the WTO, or where the Community measure refers expressly to the precise provisions of the WTO agreements, that it is for the Court to review the legality of the Community measure in question in the light of the WTO rules (Case C‑149/96 Portugal  v Council  [1999] ECR I‑8395, paragraph 49; Biret International v Council , paragraph 53; and Van Parys , paragraph 40 and the case-law cited).
31. In accordance with Article 1 of Regulation No 1515/2001, the Council may, following a report adopted by the DSB, and depending on the circumstances, repeal or amend the disputed measure or adopt any other special measures which are deemed to be appropriate in the circumstances.
32. Regulation No 1515/2001 applies, according to its Article 4, to reports adopted after 1 January 2001 by the DSB. In the present case, the DSB adopted the report of the Appellate Body on 12 March 2001 together with that of the Panel as amended by the Appellate Body’s report.
33. Pursuant to Article 3 of Regulation No 1515/2001, any measures adopted pursuant to that regulation are to take effect from the date of their entry into force and may not serve as basis for the reimbursement of the duties collected prior to that date, unless otherwise provided for. Recital (6) in the preamble to the regulation provides in that connection that the recommendations in reports adopted by the DSB only have prospective effect. Therefore, ‘any measures taken under [Regulation No 1515/2001] will take effect from the date of their entry into force, unless otherwise specified, and … do not provide any basis for the reimbursement of the duties collected prior to that date’.
34. In this case, having regard to the provisions of Regulation No 1515/2001 and to the DSB’s recommendations, the Council first of all adopted Regulation No 1644/2001 on 7 August 2001. Next, on 28 January 2002, it adopted Regulation No 160/2002, and finally, on 22 April 2002, Regulation No 696/2002 confirming the definitive anti-dumping duty imposed by Regulation No 2398/97, as amended and suspended by Regulation No 1644/2001.
35. It follows from all of the foregoing that, in circumstances such as those in the main proceedings, the legality of Regulation No 2398/97 cannot be reviewed in the light of the Anti-dumping Agreement, as subsequently interpreted by the DSB’s recommendations, since it is clear from the subsequent regulations that the Community, by excluding repayment of rights paid under Regulation No 2398/97, did not in any way intend to give effect to a specific obligation assumed in the context of the WTO.
The validity of Regulation No 2398/97 in the light of the basic regulation
40. It must be recalled in that connection that, as the Advocate General observed in point 102 of his Opinion, in the sphere of the common commercial policy and, most particularly, in the realm of measures to protect trade, the Community institutions enjoy a broad discretion by reason of the complexity of the economic, political and legal situations which they have to examine (see, to that effect, Case 191/82 Fediol  v Commission  [1983] ECR 2913, paragraph 26, and Case 255/84 Nachi Fujikoshi  v Council [1987] ECR 1861, paragraph 21).
41. Furthermore, it is settled case-law that the choice between the different methods of calculating the dumping margin, such as those set out in Article 2(11) of the basic regulation, together with the assessment of the normal value of a product or the determination of the existence of harm require an appraisal of complex economic situations and the judicial review of such an appraisal must therefore be limited to verifying whether relevant 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, to that effect, Case 240/84 NTN Toyo Bearing and Others  v Council [1987] ECR 1809, paragraph 19; Case C-156/87 Gestetner Holdings  v Council and Commission  [1990] ECR I-781, paragraph 63; and Case C-150/94 United Kingdom  v Council  [1998] ECR I-7235, paragraph 54).
56. Article 2(11) of the basic regulation states that the weighted average normal value is to be compared with ‘a weighted average of prices of all export transactions to the Community’. In this case, in making that comparison, the use of the practice of ‘zeroing’ negative dumping margins was in fact made by modifying the price of the export transactions. Therefore, by using that method the Council did not calculate the overall dumping margin by basing its calculation on comparisons which fully reflect all the comparable export prices and, therefore, in calculating the margin in that way, it committed a manifest error of assessment with regard to Community law.
61. With regard to the question whether the Community authorities committed a manifest error of assessment by failing to evaluate all the relevant injury factors having a bearing on the state of the Community industry, as set out in Article 3(5) of the basic regulation, it must be stated that that provision gives those authorities discretion in the examination and evaluation of the various items of evidence.
66. Therefore it is appropriate, without there being any need to answer the other questions relating to the validity of subsequent regulations, to examine the fifth question, which concerns the consequences to be drawn from the finding of invalidity of Article 1 of Regulation No 2398/97, regarding the right of the importer involved in the main proceedings to repayment of anti-dumping duties which it paid under that regulation.
67. It is for the national authorities to draw the consequences, in their legal system, of a declaration of invalidity made in the context of an assessment of validity in a reference for a preliminary ruling (Case 23/75 Rey Soda  [1975] ECR 1279, paragraph 51), which has the consequence that anti-dumping duties, paid under Regulation No 2398/97 are not legally owed within the meaning of Article 236(1) of Regulation No 2913/92 and should, in principle, be repaid by the customs authorities in accordance with that provision, provided that the conditions to which such repayment is subject, including that set out in Article 236(2), are satisfied, this being a matter for the national court to verify.
68. Next, it must be observed that the national courts alone have jurisdiction to entertain actions for recovery of amounts unduly received by a national body on the basis of Community legislation declared subsequently to be invalid (see, to that effect, Case 20/88 Roquette  v Commission  [1989] ECR 1553, paragraph 14, and Case C-282/90 Vreugdenhil  v Commission  [1992] ECR I-1937, paragraph 12).
69. In those circumstances, the answer to the fifth question must be that an importer, such as that at issue in the main proceedings, which has brought an action before a national court against the decisions by which the collection of anti-dumping duties is claimed from it under Regulation No 2398/97, declared invalid by this judgment, is, in principle, entitled to rely on that invalidity in the dispute in the main proceedings in order to obtain repayment of those duties in accordance with Article 236(1) of Regulation No 2913/92.
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