APEX GmbH Internationale Spedition v Hauptzollamt Hamburg-Stadt.
Date: 2015-12-17
36. According to the Court’s settled case-law, the procedure laid down in Article 267 TFEU is based on a clear separation of functions between the national courts and the Court of Justice, with the result that it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling to enable it to deliver judgment and the relevance of the questions which it submits to the Court (judgment in Simon, Evers & Co. , C‑21/13, EU:C:2014:2154, paragraph 26).
37. It also follows from well-established case-law that Article 267 TFEU does not make available a means of redress to the parties to a case pending before a national court, with the result that the Court cannot be compelled to evaluate the validity of EU law on the sole ground that that question has been put before it by one of the parties in its written observations (see the judgment in Simon, Evers & Co. , C‑21/13, EU:C:2014:2154, paragraph 27 and the case-law cited).
42. According to the Court’s settled case-law, in determining the scope of a provision of EU law, in this case Article 13 of the basic regulation, its wording, context and objectives must all be taken into account (judgment in Angerer , C‑477/13, EU:C:2015:239, paragraph 26 and the case-law cited).
48. First, it must be observed, in this regard, that, whilst Article 10(1) of the basic regulation affirms the principle of non-retroactivity of anti-dumping measures, since such measures cannot as a rule be applied to any goods other than those released into free circulation after the date on which the regulation imposing them entered into force, several provisions of the basic regulation derogate from that principle. Those provisions permit the application of anti-dumping measures to goods released into free circulation before the entry into force of the regulation imposing them, on condition that the imports in question have been registered in accordance with Article 14(5) of the basic regulation.
50. Second, according to the Court’s case-law, it is apparent from, in particular, recital 19 and Article 13 of the basic regulation that the sole purpose of a regulation extending an anti-dumping duty is to ensure the effectiveness of that duty and to prevent its circumvention. Furthermore, the obligation to register the imports concerned, in the specific context of a circumvention, is also aimed at ensuring the effectiveness of the extended definitive measures by making possible the retroactive application of duties and thereby avoiding a situation in which the definitive measures to be applied are deprived of their effectiveness (judgment in Paltrade , C‑667/11, EU:C:2013:368, paragraphs 28 and 29).
53. Third, it should be observed that the Court has ruled that a measure extending a definitive anti-dumping duty is merely ancillary to the initial act establishing that duty (judgment in Paltrade , C‑667/11, EU:C:2013:368, paragraph 28).
61. It must be recalled that the Court has held that, in the sphere of the common commercial policy and, most particularly, in the realm of measures to protect trade, the EU institutions enjoy a broad discretion by reason of the complexity of the economic, political and legal situations which they have to examine. The judicial review of such an appraisal must therefore be limited to verifying whether the 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 the judgment in Simon, Evers & Co. , C‑21/13, EU:C:2014:2154, paragraph 29 and the case-law cited).
63. According to Article 13(3) of that regulation, it is for the Commission to initiate an investigation on the basis of evidence which prima facie suggests circumvention practices. If the facts ascertained during that investigation make it possible to conclude that such a circumvention exists, the Commission is to submit a proposal on the extension of anti-dumping measures to the Council (judgment in Simon, Evers & Co. , C‑21/13, EU:C:2014:2154, paragraph 31).
64. However, there is no provision in the basic regulation which grants the Commission, in the context of a circumvention investigation, the power to require producers or exporters referred to in a complaint to participate in the investigation or to provide information. The Commission is therefore reliant on the voluntary cooperation of the interested parties to provide it with the necessary information (judgment in Simon, Evers & Co. , C‑21/13, EU:C:2014:2154, paragraph 32).
65. It is for that reason that the EU legislature provided in Article 18(1) of the basic regulation that, in cases in which any interested party refuses access to, or otherwise does not provide, necessary information, or significantly impedes the investigation, provisional or final findings, affirmative or negative, may be made on the basis of the facts available (judgment in Simon, Evers & Co. , C‑21/13, EU:C:2014:2154, paragraph 33).
66. Furthermore, Article 18(6) of the basic regulation states that if an interested party does not cooperate, or cooperates only partially, so that relevant information is thereby withheld, the result may be less favourable to the party than if it had cooperated (judgment in Simon, Evers & Co. , C‑21/13, EU:C:2014:2154, paragraph 34).
67. While it is true that the basic regulation, and particularly Article 13(3) thereof, establishes the principle that the burden of proving circumvention is imposed on the EU institutions, the fact remains that, by providing, in a situation in which the interested parties fail to cooperate, that those institutions may base the findings of an investigation into the existence of circumvention on the data available and that the result may be less favourable to the parties who have not cooperated with it, Article 18(1) and (6) of the basic regulation is clearly intended to lessen that burden (judgment in Simon, Evers & Co. , C‑21/13, EU:C:2014:2154, paragraph 35).
68. It is true that it follows from Article 18 of the basic regulation that it was not the intention of the EU legislature to establish a legal presumption making it possible to infer the existence of circumvention directly from the non-cooperation of the parties interested or concerned, and thereby exempting the EU institutions from any requirement to adduce proof. However, given that it is possible to make findings, even definitive findings, on the basis of the facts available and to treat a party which does not cooperate or does not cooperate fully less favourably than if it had cooperated, it is equally evident that the EU institutions are authorised to act on the basis of a body of consistent evidence showing the existence of circumvention for the purposes of Article 13(1) of the basic regulation (judgment in Simon, Evers & Co. , C‑21/13, EU:C:2014:2154, paragraph 36).
69. Any other approach would risk undermining the efficiency of the EU trade-defence measures each time the EU institutions are faced with non-cooperation in the context of an investigation seeking to establish whether there has been circumvention (judgment in Simon, Evers & Co. , C‑21/13, EU:C:2014:2154, paragraph 37).