TMK Europe GmbH v Hauptzollamt Frankfurt (Oder).
Date: 2015-04-16
18. In this regard, it must be borne in mind that the general principle which is intended to ensure that every person has, or will have had, the opportunity to challenge a Community measure which forms the basis of a decision adversely affecting him, does not in any way preclude a regulation from becoming definitive as against an individual in regard to whom it must be considered to be an individual decision and who could undoubtedly have sought its annulment under Article 230 EC, a fact which prevents that individual from pleading the illegality of that regulation before the national court. Such a conclusion applies to regulations instituting anti-dumping duties by virtue of their dual nature as acts of a legislative nature and acts liable to be of direct and individual concern to certain traders (see judgment in Nachi Europe , C‑239/99, EU:C:2001:101, paragraph 37 and the case-law cited).
19. Regulations imposing an anti-dumping duty, although by their nature and scope of a legislative nature, may be of direct and individual concern to those producers and exporters of the product in question who are charged with practising dumping on the basis of information originally from their business activities. Generally, that is the case with those exporters and producers who are able to establish that they were identified in the measures adopted by the Commission and Council or were concerned by the preliminary investigations (see judgments in Allied Corporation and Others v Commission , 239/82 and 275/82, EU:C:1984:68, paragraphs 11 and 12; Nachi Europe , C‑239/99, EU:C:2001:101, paragraph 21; and in addition Valimar , C‑374/12, EU:C:2014:2231, paragraph 30).
20. The same is true of those importers of the product concerned whose resale prices were taken into account for the construction of export prices and who are consequently concerned by the findings relating to the existence of dumping (see judgments in Nashua Corporation and Others  v Commission and Council , C‑133/87 and C‑150/87, EU:C:1990:115, paragraph 15; Gestetner Holdings  v Council and Commission , C‑156/87, EU:C:1990:116, paragraph 18; in addition, Valimar , C‑374/12, EU:C:2014:2231, paragraph 31).
21. The Court has also held that importers associated with exporters in third countries on whose products anti-dumping duties have been imposed may challenge the regulations imposing such duties, particularly where the export price has been calculated on the basis of those importers’ resale prices on the Community market and where the anti-dumping duty itself is calculated on the basis of those resale prices (see judgments in Neotype Techmashexport  v Commission and Council , C‑305/86, EU:C:1990:295, paragraphs 19 and 20, and in addition Valimar , C‑374/12, EU:C:2014:2231, paragraph 32).
22. Furthermore, the recognition of the right of certain categories of traders to bring an action for the annulment of an anti-dumping regulation cannot, however, prevent other traders from also being able to claim that they are individually concerned by such a regulation by reason of certain attributes which are peculiar to them and which differentiate them from all other persons (see judgments in Extramet Industrie  v Council , C‑358/89, EU:C:1991:214, paragraph 16, and Valimar , C‑374/12, EU:C:2014:2231, paragraph 33).
32. Pursuant to Article 3(5) of the basic regulation, the examination of the impact of the dumped imports on Community industry includes an evaluation of all relevant economic factors and indices having a bearing on the state of the Community industry. That provision contains a list of factors which may be taken into account and states that that list is not exhaustive and that decisive guidance is not necessarily given by any one or more of those factors (see judgment in Transnational Company ‘Kazchrome’ and ENRC Marketing  v Council , C‑10/12 P, EU:C:2013:865, paragraph 20 and the case-law cited).
33. Article 3(7) of the basic regulation provides that known factors other than the dumped imports which are injuring the Community industry at the same time must also be examined in order to ensure that injury caused by those factors is not attributed to the dumped imports pursuant to Article 3(6) which provides that it must be demonstrated, from all the relevant evidence presented, that the dumped imports are causing material injury to Community industry (see in this regard judgment in Transnational Company ‘Kazchrome’ and ENRC Marketing  v Council , C‑10/12 P, EU:C:2013:865, paragraph 21 and the case-law cited).
34. It is settled case-law that the determination of the existence of harm caused to the Community industry requires 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 relied on have been accurately stated, and whether there has been a manifest error in the appraisal of those facts or a misuse of powers. That is particularly the case as regards the determination of the factors injuring the Community industry in an anti-dumping investigation (see judgment in Transnational Company ‘Kazchrome’ and ENRC Marketing  v Council , C‑10/12 P, EU:C:2013:865, paragraph 22 and the case-law cited).
35. In determining injury, the institutions of the European Union are under an obligation to consider whether the injury on which they intend to base their conclusions does in fact derive from the dumped imports and must disregard any injury deriving from other factors, particularly from the conduct of Community producers themselves (see judgment in Transnational Company ‘Kazchrome’ and ENRC Marketing  v Council , C‑10/12 P, EU:C:2013:865, paragraph 23 and the case-law cited).
36. In this regard, it is for the EU institutions to ascertain whether the effects of those other factors were not such as to break the causal link between, on the one hand, the imports in question and, on the other, the injury suffered by the Community industry. It is also for them to verify that the injury attributable to those other factors is not taken into account in the determination of injury within the meaning of Article 3(7) of the basic regulation and, consequently, that the anti-dumping duty imposed does not go beyond what is necessary to offset the injury caused by the dumped imports (see judgment in Transnational Company ‘Kazchrome ’ and ENRC Marketing  v Council , C‑10/12 P, EU:C:2013:865, paragraph 24 and the case-law cited).
37. However, if the EU institutions find that, despite such factors, the injury caused by the dumped imports is material under Article 3(1) of the basic regulation, the causal link between those imports and the injury suffered by the Community industry can consequently be established (see judgment in Transnational Company ‘Kazchrome’ and ENRC Marketing  v Council , C‑10/12 P, EU:C:2013:865, paragraph 25 and the case law cited).
42. However, it is necessary to recall that it is, at all events, for the parties pleading the illegality of an anti-dumping regulation to adduce evidence to show that factors other than those relating to the imports could have had such importance that they called into question the causal link between the harm suffered by Community industry and the dumped imports (see, to this effect, judgment in Transnational Company ‘Kazchrome’ and ENRC Marketing  v Council , C‑10/12 P, EU:C:2013:865, paragraph 28 and the case-law cited).