European Commission v Rusal Armenal ZAO.
Date: 2015-07-16
37. First of all, it must be noted that the provisions of an international agreement to which the European Union is a party can be relied on in support of an action for annulment of an act of secondary EU legislation or an exception based on the illegality of such an act only where, first, the nature and the broad logic of that agreement do not preclude it and, secondly, those provisions appear, as regards their content, to be unconditional and sufficiently precise (see, in particular, the judgment in Council and Others  v Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht , C‑401/12 P to C‑403/12 P, EU:C:2015:4, paragraph 54 and the case-law cited). It is therefore only when both those conditions are met that such provisions may be relied upon before the EU Courts as a criterion in order to assess the legality of an EU act.
38. As regards the WTO agreements, it is the settled case-law of the Court that, given their nature and purpose, those 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 EU institutions (see, in particular, judgments in Portugal  v Council , C‑149/96, EU:C:1999:574, paragraph 47; Van Parys , C‑377/02, EU:C:2005:121, paragraph 39; and LVP , C‑306/13, EU:C:2014:2465, paragraph 44).
39. In that regard, the Court has held, in particular, that to accept that the Courts of the European Union have the direct responsibility for ensuring that EU law complies with the WTO rules would deprive the European Union’s legislative or executive bodies of the discretion which the equivalent bodies of the European Union’s commercial partners enjoy. It is not in dispute that some of the contracting parties, which are amongst the most important commercial partners of the European Union, have concluded from the subject-matter and purpose of the WTO agreements that they are not among the rules applicable by their courts when reviewing the legality of their rules of domestic law. Such lack of reciprocity, if accepted, would risk introducing an anomaly in the application of the WTO rules (see, in particular, judgments in Portugal  v Council , C‑149/96, EU:C:1999:574, paragraphs 43 to 46; FIAMM and Others v Council and Commission , C‑120/06 P and C‑121/06 P, EU:C:2008:476, paragraph 119; and LVP , C‑306/13, EU:C:2014:2465, paragraph 46).
40. However, in two exceptional situations, which are the result of the EU legislature’s own intention to limit its discretion in the application of the WTO rules, the Court has accepted that it is for the Courts of the European Union, if necessary, to review the legality of an EU measure and of the measures adopted for its application in the light of the WTO agreements.
41. The first such situation is where the European Union intends to implement a particular obligation assumed in the context of those WTO agreements and the second where the EU act at issue refers explicitly to specific provisions of those agreements (see, to that effect, in particular judgments in Fediol  v Commission , 70/87, EU:C:1989:254, paragraphs 19 to 22; Nakajima  v Council , C‑69/89, EU:C:1991:186, paragraphs 29 to 32; Biret et Cie  v Council , C‑94/02 P, EU:C:2003:518, paragraph 73; and Council and Others v Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht , C‑401/12 P to C‑403/12 P, EU:C:2015:4, paragraph 56).
44. It must first of all be noted, in that regard, that the Court has in certain cases acknowledged that the WTO’s anti-dumping system could constitute an exception to the general principle that the EU Courts cannot review the legality of the acts of the EU institutions in light of whether they are consistent with the rules of the WTO agreements (see, to that effect, judgments in Nakajima  v Council , C‑69/89, EU:C:1991:186, paragraphs 29 to 32; Petrotub and Republica  v Council , C‑76/00 P, EU:C:2003:4, paragraphs 55 and 56; and Council and Others  v Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht , C‑401/12 P to C‑403/12 P, EU:C:2015:4, paragraph 59).
47. As regards Article 2(7) of the basic regulation, it must be pointed out at the outset that that provision, following on from recital 7 of that regulation, introduces a special regime laying down detailed rules for the calculation of normal value for imports from non-market economy countries, including Armenia. As regards those imports, Article 2(7)(a) provides that normal value must be determined on the basis 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, or where those are not possible, 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. In addition, Article 2(7)(b) stipulates that in anti-dumping investigations concerning imports from any non-market economy country which is a member of the WTO at the date of the initiation of the investigation, normal value is to be determined in accordance with Article 2(1) to (6), if it is shown that the market economy conditions, set out in Article 2(7)(c), prevail for this producer or producers in respect of the manufacture and sale of the like product concerned.
48. In that regard, it must be found that Article 2(7) of the basic regulation is the expression of the EU legislature’s intention to adopt in that sphere an approach specific to the EU legal order.
49. As is apparent from the preamble to Regulation No 2238/2000, amending the basic regulation, the rules laid down in Article 2(7) of the basic regulation and applicable to imports from non-market economy countries which are members of the WTO are based on the emergence, in those countries, following the economic reforms adopted, of firms for which market-economy conditions prevail.
50. Since there are no specific rules relating to such a category of countries in the Anti-Dumping Agreement, a correlation cannot be established between, on the one hand, the rules in Article 2(7) of the basic regulation directed at the imports from non-market economy WTO member countries and, on the other, the rules set out in Article 2 of the Anti-Dumping Agreement. It follows that that provision of the basic regulation cannot be considered to be a measure intended to ensure the implementation in the EU legal order of a particular obligation assumed in the context of the WTO.
52. Nor is the finding called in question by the fact that recital 5 of the basic regulation states that the rules of the Anti-Dumping Agreement should be brought into EU legislation ‘as far as possible’. As the Advocate General observed in points 44 and 46 of her Opinion, that expression must be understood as meaning that even if the EU legislature intended to take into account the rules of the Anti-Dumping Agreement when adopting the basic regulation, it did not, however, show the intention of transposing all those rules in that regulation. The conclusion that the purpose of Article 2(7) of the basic regulation is to implement the particular obligations created by Article 2 of the Anti-Dumping Agreement can therefore in no case be based in isolation on the wording of recital 5 of the basic regulation.
53. In such circumstances, it must be found that, as the Advocate General observed in paragraphs 50 and 51 of her Opinion, the EU legislature exercised its regulatory competence, as regards the calculation of normal value in respect of imports from non-market economy countries members of the WTO, by taking an approach specific to the EU legal order and, therefore, it cannot be established that it was the EU legislature’s intention, by the adoption of Article 2(7) of the basic regulation, to implement the particular obligations created by Article 2 of the Anti-Dumping Agreement.
59. In that regard, it must be noted that none of the two exceptional situations set out in paragraph 41 above is established in the present case. First, as has been found in paragraph 53 above, the intention of the EU legislature to implement, by the adoption of Article 2(7) of the basic regulation, the particular obligations created by Article 2 of the Anti-Dumping Agreement, is not established. Secondly, Article 2(7) of the basic regulation does not refer expressly to a specific provision of the Anti-Dumping Agreement, the general reference to the provisions of that agreement in recital 5 of that regulation being insufficient in itself to conclude that there is such a reference (see, to that effect, the judgments in Van Parys , C‑377/02, EU:C:2005:121, paragraph 52; FIAMM and Others v Council and Commission , C‑120/06 P and C‑121/06 P, EU:C:2008:476, paragraphs 113 and 114; and Council and Others  v Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht , C‑401/12 P to C‑403/12 P, EU:C:2015:4, paragraph 58).