1 By their appeal, Eurobolt BV, Fabory Nederland BV and ASF Fischer BV seek to have set aside the judgment of the General Court of the European Union of 18 May 2022, Eurobolt and Others v Commission (T‑479/20, the judgment under appeal, EU:T:2022:304), by which the Court dismissed their action for annulment of Commission Implementing Regulation (EU) 2020/611 of 30 April 2020 re-imposing the definitive anti-dumping duty imposed by Council Regulation (EC) No 91/2009 on imports of certain iron or steel fasteners originating in the People’s Republic of China to imports of certain iron or steel fasteners consigned from Malaysia, whether declared as originating in Malaysia or not (OJ 2020 L 141, p. 1; ‘the regulation at issue’).
2 Under the first subparagraph of Article 116(1) of Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2023 laying down the Union Customs Code (OJ 2013 L 269, p.1; ‘the Customs Code’): ‘Subject to the conditions laid down in this Section, amounts of import or export duty shall be repaid or remitted on any of the following grounds: (a) overcharged amounts of import or export duty; (b) defective goods or goods not complying with the terms of the contract; (c) error by the competent authorities; (d) equity.’
3 The facts and the legal measures at issue occurred during a period when the adoption of anti-dumping measures within the European Union was successively governed, first, by Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (OJ 1996 L 56, p. 1), as amended by Council Regulation (EC) No 2117/2005 of 21 December 2005 (OJ 2005 L 340, p. 17), then by Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (OJ 2009 L 343, p. 51, and corrigendaOJ 2010 L 7, p. 22, and OJ 2016 L 44, p. 20), as amended by Regulation (EU) No 37/2014 of the European Parliament and of the Council of 15 January 2014 (OJ 2014 L 18, p. 1) (‘Regulation No 1225/2009’), and, last, by Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on protection against dumped imports from countries not members of the European Union (OJ 2016 L 176, p. 21).
4 Before it was amended by Regulation No 37/2014, Article 15 of Regulation No 1225/2009, entitled ‘Consultations’, provided, in paragraphs 1 and 2: ‘1. Any consultations provided for in this Regulation shall take place within an Advisory Committee, which shall consist of representatives of each Member State, with a representative of the [European] Commission as chairman. Consultations shall be held immediately at the request of a Member State or on the initiative of the Commission and in any event within a period which allows the time limits set by this Regulation to be adhered to. 2. The Committee shall meet when convened by its chairman. He shall provide the Member States, as promptly as possible, but no later than 10 working days before the meeting, with all relevant information.’
5 Regulation 2016/1036 entered into force, pursuant to Article 25 thereof, on 20 July 2016. In accordance with the first paragraph of Article 24 thereof, it repealed Regulation No 1225/2009.
6 The first subparagraph of Article 9(4) of Regulation 2016/1036 provides, in terms identical to those of the first and second sentences of Article 9(4) of Regulation No 1225/2009: ‘Where the facts as finally established show that there is dumping and injury caused thereby, and the Union interest calls for intervention in accordance with Article 21, a definitive anti-dumping duty shall be imposed by the Commission acting in accordance with the examination procedure referred to in Article 15(3). Where provisional duties are in force, the Commission shall initiate that procedure no later than one month before the expiry of such duties.’
7 Article 10 of Regulation 2016/1036, entitled ‘Retroactivity’, provides, in paragraph 1, in terms materially identical to those of Article 10(1) of Regulation No 1225/2009: ‘Provisional measures and definitive anti-dumping duties shall only be applied to products which enter free circulation after the time when the measure taken pursuant to Article 7(1) or 9(4), as the case may be, enters into force, subject to the exceptions set out in this Regulation.’
8 Article 13 of Regulation 2016/1036, entitled ‘Circumvention’, provides, in paragraphs 1 and 3, in terms identical to those of Article 13(1) and (3) of Regulation No 1225/2009: ‘1. Anti-dumping duties imposed pursuant to this Regulation may be extended to imports from third countries of the like product, whether slightly modified or not, or to imports of the slightly modified like product from the country subject to measures, or parts thereof, when circumvention of the measures in force is taking place. … 3. Investigations shall be initiated pursuant to this Article on the initiative of the Commission or at the request of a Member State or any interested party on the basis of sufficient evidence regarding the factors set out in paragraph 1. Initiations shall be made by Commission Regulation which may also instruct customs authorities to subject imports to registration in accordance with Article 14(5) or to request guarantees. … … Where the facts as finally ascertained justify the extension of measures, this shall be done by the Commission acting in accordance with the examination procedure referred to in Article 15(3). The extension shall take effect from the date on which registration was imposed pursuant to Article 14(5), or on which guarantees were requested. The relevant procedural provisions of this Regulation concerning the initiation and the conduct of investigations shall apply pursuant to this Article.’
9 According to Article 14(1) and (5) of Regulation 2016/1036, which corresponds to Article 14(1) and (5) of Regulation No 1225/2009: ‘1. Provisional or definitive anti-dumping duties shall be imposed by regulation, and collected by Member States in the form, at the rate specified and according to the other criteria laid down in the regulation imposing such duties. Such duties shall also be collected independently of the customs duties, taxes and other charges normally imposed on imports. … 5. The Commission may, after having informed the Member States in due time, direct the customs authorities to take the appropriate steps to register imports, so that measures may subsequently be applied against those imports from the date of such registration. … Registration shall be introduced by Regulation which shall specify the purpose of the action and, if appropriate, the estimated amount of possible future liability. Imports shall not be made subject to registration for a period longer than nine months.’
10 Article 15 of Regulation 2016/1036, entitled ‘Committee procedure’, provides, in paragraph 3: ‘Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 [of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers (OJ 2011 L 55, p. 13)] shall apply.’
11 Article 5 of Regulation No 182/2011, entitled ‘Examination procedure’, the wording of which differs from that of Regulation No 1225/2009, provides: ‘1. Where the examination procedure applies, the committee shall deliver its opinion by the majority laid down in Article 16(4) and (5) of the Treaty on European Union and, where applicable, Article 238(3) TFEU, for acts to be adopted on a proposal from the Commission. The votes of the representatives of the Member States within the committee shall be weighted in the manner set out in those Articles. … 5. … the following procedure shall apply for the adoption of draft definitive anti-dumping or countervailing measures, where no opinion is delivered by the committee and a simple majority of its component members opposes the draft implementing act. The Commission shall conduct consultations with the Member States. 14 days at the earliest and 1 month at the latest after the committee meeting, the Commission shall inform the committee members of the results of those consultations and submit a draft implementing act to the appeal committee. By way of derogation from Article 3(7), the appeal committee shall meet 14 days at the earliest and 1 month at the latest after the submission of the draft implementing act. The appeal committee shall deliver its opinion in accordance with Article 6. The time limits laid down in this paragraph shall be without prejudice to the need to respect the deadlines laid down in the relevant basic acts.’
12 The background to the dispute is set out in paragraphs 1 to 21 of the judgment under appeal. For the purposes of the present appeal, it can be summarised as follows.
13 After having found that fasteners sold on the EU market had been dumped by Chinese exporting producers, the Council adopted Regulation (EC) No 91/2009 of 26 January 2009 imposing a definitive anti-dumping duty on imports of certain iron or steel fasteners originating in the People’s Republic of China (OJ 2009 L 29, p. 1).
14 Following the imposition of that definitive anti-dumping duty, the Commission received evidence that those measures were being circumvented through transhipping via Malaysia. It therefore adopted Regulation (EU) No 966/2010 of 27 October 2010 initiating an investigation concerning the possible circumvention of anti-dumping measures imposed by Regulation No 91/2009 by imports of certain iron or steel fasteners consigned from Malaysia, whether declared as originating in Malaysia or not, and making such imports subject to registration (JO 2010 L 282, p. 29). Regulation No 966/2010 directed, inter alia, the customs authorities to take the appropriate steps to register imports into the European Union, so that anti-dumping duties of an appropriate amount could be levied retroactively from the date of registration of such imports consigned from Malaysia, should the investigation result in findings of circumvention.
15 At the end of that investigation, the Council adopted Implementing Regulation (EU) No 723/2011 of 18 July 2011 extending the definitive anti-dumping duty imposed by Regulation No 91/2009 to imports of certain iron or steel fasteners consigned from Malaysia, whether declared as originating in Malaysia or not (OJ 2011 L 194, p. 6).
16 On 28 July 2011, the Dispute Settlement Body of the World Trade Organization (WTO) (‘DSB’) adopted an Appellate Body report and a special group report as modified by the Appellate Body report on the case ‘European Communities - Definitive Anti-Dumping Measures on Certain Iron or Steel Fasteners from China’ (WT/DS 397). The DSB found, inter alia, that the European Union had acted in a manner inconsistent with certain provisions of the WTO’s anti-dumping agreement.
17 Following that decision, the Council adopted Implementing Regulation (EU) No 924/2012 of 4 October 2012 amending Regulation No 91/2009 (OJ 2012 L 275, p. 1), by which it, inter alia, reduced the anti-dumping duty which was provided for in the latter regulation.
18 The measures laid down by those regulations were maintained for an additional five-year period by Commission Implementing Regulation (EU) 2015/519 of 26 March 2015 imposing a definitive anti-dumping duty on imports of certain iron or steel fasteners originating in the People’s Republic of China, as extended to imports of certain iron or steel fasteners consigned from Malaysia, whether declared as originating in Malaysia or not, following an expiry review pursuant to Article 11(2) of Regulation No 1225/2009 (OJ 2015 L 82, p. 78).
19 By a decision of 12 February 2016, the DSB adopted new reports finding the measures taken by the European Union by means of Implementing Regulation No 924/2012 to be inconsistent with certain provisions of the WTO’s anti-dumping agreement.
20 Following that decision, on 26 February 2016, the Commission adopted Implementing Regulation (EU) 2016/278 repealing the definitive anti-dumping duty imposed on imports of certain iron or steel fasteners originating in the People’s Republic of China, as extended to imports of certain iron or steel fasteners consigned from Malaysia, whether declared as originating in Malaysia or not (OJ 2016 L 52, p. 24).
21 The appellants, which imported fasteners from Malaysia during the period of the anti-circumvention investigation conducted by the Commission, saw their imports registered so as to be able to impose duties on them should the investigation confirm the circumvention.
22 Between January 2012 and October 2013, the Netherlands customs authorities issued collection notices for the anti-dumping duties owed by the appellants on imports of fasteners pursuant to Implementing Regulation No 723/2011.
23 In the context of an appeal brought by Eurobolt against the anti-dumping duties paid pursuant to that implementing regulation, the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) made, on 17 November 2017, a request to the Court of Justice for a preliminary ruling in relation to the validity of that implementing regulation.
24 In the judgment of 3 July 2019, Eurobolt (C‑644/17, ‘the judgment in Eurobolt, EU:C:2019:555), the Court held that Implementing Regulation No 723/2011 was invalid inasmuch as it had been adopted in breach of the essential procedural requirement referred to in Article 15(2) of Regulation No 1225/2009.
25 Following the delivery of the judgment in Eurobolt, the Commission reopened the anti-circumvention investigation in order to correct the procedural illegality identified by the Court. To that end, it adopted Implementing Regulation (EU) 2019/1374 of 26 August 2019 [reopening] the investigation following the [judgment in Eurobolt] with regard to Council Implementing Regulation No 723/2011 (OJ 2019 L 223, p. 1).
26 The reopening of the anti-circumvention investigation was aimed at guaranteeing the implementation of that judgment by ensuring compliance with all the procedural requirements under the Advisory Committee procedure laid down in Article 15(2) of Regulation No 1225/2009, which had since been replaced by the examination procedure provided for in Article 5 of Regulation No 182/2011.
27 Eurobolt’s observations were submitted to the competent committee at least 14 days before its meeting. Those observations did not give rise to a change of the Commission’s conclusion, namely that the original measures should be re-imposed on imports of certain iron or steel fasteners consigned from Malaysia, whether declared as originating in that country or not.
28 On 30 April 2020, the Commission adopted the regulation at issue.
29 Under Article 1 of that regulation, the anti-dumping duty imposed by Regulation No 91/2009 is re-imposed on imports of certain iron or steel fasteners, other than of stainless steel, consigned from Malaysia during the period of application of Implementing Regulation No 723/2011. Article 2 of the regulation at issue provides that the anti-dumping duties paid on the basis of Implementing Regulation No 723/2011 are not to be reimbursed and that any reimbursements that took place following the judgment in Eurobolt are to be recovered by the authorities which made those reimbursements.
30 By application lodged at the Registry of the General Court on 28 July 2020, the appellants and Stafa Group BV brought an action for annulment of the regulation at issue.
31 In support of their action, the appellants and Stafa Group relied on three pleas in law. The first plea alleged that, by retroactively remedying an infringement of an essential procedural requirement, the regulation at issue had infringed Articles 264 and 266 TFEU and was in breach of the principle of effective judicial protection. The second plea in law alleged that, since it had no valid legal basis, the regulation at issue was contrary to Article 13(1) of Regulation 2016/1036, Article 5(1) and (2) TEU and the principle of good administration. The third plea in law alleged that, by prohibiting repayment and ordering collection of the repaid anti-dumping duties, the regulation at issue had infringed Article 5(1) and (2) TEU.
32 The Commission expressed doubts as to the admissibility of the action on the basis of the second limb of the sentence in the fourth paragraph of Article 263 TFEU, arguing that the regulation at issue is not of individual concern to the appellants and Stafa Group. Similarly, even though, to the Commission, the action appeared admissible under the third limb of the sentence in the fourth paragraph of Article 263 TFEU for Fabory Nederland, ASF Fischer and Stafa Group, that did not appear to be the case for Eurobolt. According to that institution, since the notifications to that company had been annulled by the Hoge Raad der Nederlanden (Supreme Court of the Netherlands), the implementation of the regulation at issue in its regard required implementing measures in the form of a new notification of the customs debt.
33 The General Court nevertheless held that it was necessary to examine at the outset the appellants’ and Stafa Group’s pleas, without first ruling on the admissibility of the action for annulment since it was, in any event, unfounded. By the judgment under appeal, the General Court rejected each of the pleas raised and, accordingly, dismissed the action in its entirety.
34 By their appeal, the appellants claim that the Court should: - set aside the judgment under appeal; - uphold their action at first instance and annul the regulation at issue, in so far as it concerns the appellants; and - order the Commission to pay the costs at first instance and on appeal as well as its own costs.
35 The Commission contends that the Court should: - dismiss the appeal; and - order the appellants to pay the costs.
36 Under Article 61(1) of its Rules of Procedure, the Court invited the appellants to answer in writing a question relating to the admissibility of their action for annulment. The applicants complied with that request within the prescribed time limit.
37 The appellants put forward seven grounds in support of their appeal, alleging, respectively, that the General Court misinterpreted and misapplied (i) Article 266 TFEU and the principle of non-retroactivity by finding that the regulation at issue could retroactively re-impose and prevent repayment of the duties; (ii) Article 266 TFEU by finding that the regulation at issue could ‘cure’ the infringement of essential procedural requirements in an anti-dumping proceeding; (iii) Article 266 TFEU and the principle of non-retroactivity by finding that the regulation at issue could ‘cure’ the infringement established in the judgment in Eurobolt; (iv) Articles 264, 266 and 296 TFEU by finding that the Commission could usurp the competence of the Court; (v) the principle of effective judicial protection in acknowledging that that principle does not require full repayment of the duties in the present case; (vi) Article 13(1) of Regulation 2016/1036, Article 5(1) and (2) TEU and the principle of good administration by finding that the regulation at issue has a proper legal basis; and (vii) Article 5(1) and (2) TEU by finding that the regulation at issue could definitively prohibit repayment of the duties invalidated in the judgment in Eurobolt.
38 The first to fourth grounds relate primarily to Article 266 TFEU and the General Court’s assessments of how the Commission implemented the judgment in Eurobolt. The arguments raised in support of those grounds of appeal constitute, moreover, an amplification of those put forward in the first to fourth parts of the first plea in law raised before the General Court. It is appropriate to examine them together.
39 The appellants argue infringement of Article 266 TFEU (first to fourth grounds of appeal), breach of the principle of non-retroactivity (first and third grounds of appeal) and infringement of Articles 264 and 296 TFEU (fourth ground of appeal).
40 By those grounds of appeal, directed against paragraphs 40 to 61, 69 to 71, 74, 77, 84, 91 and 99 of the judgment under appeal, the appellants begin by submitting, in essence, basing their arguments on the judgment of 28 May 2013, Abdulrahim v Council and Commission (C‑239/12 P, EU:C:2013:331), in particular, that the General Court should have found that it was not necessary or in practice impossible for the Commission to adopt any measures to implement the judgment in Eurobolt. The infringement of an essential procedural requirement established in that judgment vitiated the entirety of the anti-circumvention investigation and therefore could not be cured. Second, Article 266 TFEU requires repayment of the duties previously paid where they were not legally due, which was circumvented by the retroactive application of the regulation at issue and incorrectly endorsed by the General Court. Third, the regulation at issue produces effects exclusively in the past and is therefore, contrary to the General Court’s findings, retroactive. Fourth, the consequence of the regulation at issue was to deprive the judgment in Eurobolt of any effect in time, which goes against the competence devolved exclusively to the Court of Justice by Article 264 TFEU.
41 The Commission contends that the first, second and fourth grounds of appeal are unfounded. It argues that the third plea is ineffective, as it is based on the incorrect hypothesis that the regulation at issue is retroactive. In any event, should that be the case, the Commission is of the view that that regulation fulfils the conditions set by the case-law in order to justify such a retroactive effect.
42 By their first to fourth grounds of appeal, the appellants challenge, in essence, the General Court’s assessments of how the Commission implemented the judgment in Eurobolt, that implementation having led in fine to the adoption of the regulation at issue.
43 It should be borne in mind, in the first place, that the first paragraph of Article 266 TFEU provides that ‘the institution … whose act has been declared void … shall be required to take the necessary measures to comply with the judgment of the Court of Justice’.
44 It follows that, where the Court rules, in proceedings under Article 267 TFEU, that an act of the European Union is invalid, its decision has the effect of requiring the institutions concerned to take the necessary measures to remedy that illegality, as the obligation laid down in Article 266 TFEU in the case of a judgment annulling a measure applies in such a situation by analogy to judgments declaring an act of the European Union to be invalid (see, to that effect, judgments of 29 June 1988, Van Landschoot, 300/86, EU:C:1988:342, paragraph 22, and of 9 September 2008, FIAMM and Others v Council and Commission, C‑120/06 P and C‑121/06 P, EU:C:2008:476, paragraph 123). Moreover, those institutions do nevertheless have a wide discretion in their choice of measures, it being understood that such measures must be compatible with the operative part of the judgment in question and the grounds that constitute its essential basis (judgments of 28 January 2016, CM Eurologistik and GLS, C‑283/14 and C‑284/14, EU:C:2016:57, paragraph 76, and of 15 March 2018, Deichmann, C‑256/16, EU:C:2018:187, paragraph 87). Taking into account that wide discretion, only the manifestly inappropriate nature of those measures, having regard to the objective pursued, may affect their lawfulness (judgment of 15 March 2018, Deichmann, C‑256/16, EU:C:2018:187, paragraph 88).
45 In addition, although the Court has considered the possibility where, because of the circumstances, it proves impossible to fulfil the obligation, owed by the institution whose act has been annulled, to take the necessary measures to comply with the judgment annulling the act (see, to that effect, judgments of 5 March 1980, Könecke Fleischwarenfabrik v Commission, 76/79, EU:C:1980:68, paragraph 9, and of 28 May 2013, Abdulrahim v Council and Commission, C‑239/12 P, EU:C:2013:331, paragraphs 64 and 80), the appellants have not, in the present case, in any way established that it was not necessary or in practice impossible for the Commission to adopt any measures to implement the judgment in Eurobolt.
46 Therefore, the General Court was fully entitled to consider, in paragraphs 49 and 77 of the judgment under appeal, that the Commission was subject, pursuant to Article 266 TFEU, to an obligation to take the necessary measures to comply with the judgment in Eurobolt.
47 Moreover, it is also common ground that Article 266 TFEU requires the institution which adopted the act annulled to take the necessary measures to comply with the judgment annulling its measure and that the annulment of an EU act does not necessarily affect the preparatory acts thereof (judgment of 28 January 2016, CM Eurologistik and GLS, C‑283/14 and C‑284/14, EU:C:2016:57, paragraph 50 and the case-law cited). The same applies by analogy to the implementation of a judgment of the Court declaring invalid an EU act. As a result, except where the irregularity found has vitiated the entire proceeding with illegality, the institution concerned has the option, in order to adopt an act intended to replace the act that has been annulled or declared invalid, to resume that proceeding only at the very point at which the irregularity was committed (judgments of 12 November 1998, Spain v Commission, C‑415/96, EU:C:1998:533, paragraph 31; of 3 October 2000, Industrie des poudres sphériques v Council, C‑458/98 P, EU:C:2000:531, paragraph 82; and of 15 March 2018, Deichmann, C‑256/16, EU:C:2018:187, paragraph 74).
48 In the present case, the irregularity found by the Court in the judgment in Eurobolt consisted in the fact that the observations submitted by Eurobolt as an interested party in response to the Commission’s findings in the anti-circumvention investigation opened on the basis of Article 13 of Regulation No 1225/2009 had not been submitted to the Advisory Committee set up by that regulation 10 business days at the latest before the meeting of that committee, in breach of Article 15(2) of that regulation.
49 However, as found by the General Court in paragraph 47 of the judgment under appeal, such an irregularity did not, as such, affect the proceeding in its entirety. The objective of the time limit laid down in Article 15(2) of that regulation was to give the Member States represented in the Advisory Committee enough time to examine that information, in an unhurried manner, before the meeting of that committee and to define a position in order to protect their respective interests. More generally, that time limit was intended to ensure that due account may be taken within the Advisory Committee of the information and observations submitted by interested parties during an investigation (see, to that effect, judgment in Eurobolt, paragraphs 48 to 51).
50 Therefore, although the failure to comply with that time limit affected the subsequent stages of the procedure for extending the definitive anti-dumping duties which was to lead to the adoption of Implementing Regulation No 723/2011, that irregularity was not, however, capable of affecting the previous stages of the decision-making process. Consequently, there was nothing to prevent the Commission from resuming that proceeding at the very point at which that irregularity occurred and, after having remedied it, adopting a new act.
51 It follows that the General Court did not err in law by holding that the Commission could, in order to implement the judgment in Eurobolt, re-open the proceeding at the stage when the essential procedural requirement had been infringed, thereby guaranteeing observance of all the procedural requirements relating to the consultation of the Advisory Committee laid down in Article 15(2) of Regulation No 1225/2009 (see, by analogy, judgment of 28 January 2016, CM Eurologistik and GLS, C‑283/14 and C‑284/14, EU:C:2016:57, paragraph 54).
52 The fact that the requirement to provide that Advisory Committee with all relevant information is an essential procedural requirement governing the proper conduct of proceedings does not amend that finding or the principles recalled in paragraphs 44 and 47 of the present judgment. Similarly, contrary to the appellants’ claims, the significance of the rights of defence in the field of anti-dumping law for the economic stakeholders concerned cannot call into question the case-law flowing from paragraphs 33 and 34 of the judgment of 13 November 1990, Fedesa and Others (C‑331/88, EU:C:1990:391).
53 Irrespective of the field concerned, the underlying function of the classification of ‘essential procedural requirement’ is to guarantee observance of the rules of competence and procedural rights. The observance of those rules and rights is not affected in any way by the resumption of the proceeding at the stage where the essential procedural requirement was infringed, where the failure to observe that requirement did not vitiate the previous stages.
54 In so far as, in the present case, the infringement of the essential procedural requirement at issue did not affect the stages of the extension procedure prior to that infringement, there was nothing to prevent the Commission from resuming the proceeding at the point at which that irregularity occurred and, after having remedied it, adopting a new act.
55 In the second place, regarding the appellants’ argument that Article 266 TFEU requires repayment of the duties previously paid where they were not legally due, it is true that this is, in principle, the case where the Court declares that a regulation imposing anti-dumping duties is invalid. However, as recalled in paragraph 44 of the present judgment, the exact scope of a declaration of invalidity by the Court in a judgment and, consequently, of the obligations that flow from it must be determined in each specific case by taking into account not only the operative part of that judgment, but also the grounds that constitute its essential basis (judgment of 15 March 2018, Deichmann, C‑256/16, EU:C:2018:187, paragraphs 62 and 63).
56 In the judgment in Eurobolt, the Court declared that Implementing Regulation No 723/2011 was invalid only on account of the infringement of the procedural rule laid down in Article 15(2) of Regulation No 1225/2009. In that judgment, the Court therefore did not in any way examine the substantive content of that implementing regulation and, consequently, neither reversed nor endorsed the rules that it contained. The appellants could not therefore expect the Commission to change its attitude on the substance of the matter (see, by analogy, judgment of 13 November 1990, Fedesa and Others, C‑331/88, EU:C:1990:391, paragraph 47).
57 In that connection, it is further appropriate to bear in mind that it is settled case-law that it is not necessary that the option of re-opening the procedure should be expressly provided for by the applicable legislation in order that the institutions which adopted an act annulled or declared invalid may avail themselves of it (see, to that effect, judgment of 28 January 2016, CM Eurologistik and GLS, C‑283/14 and C‑284/14, EU:C:2016:57, paragraph 52). Although Article 9(4), Article 13(1) and (3) and Article 14(1) and (5) of Regulation 2016/1036, read together, do not refer to the possibility of ‘re-imposing’ anti-dumping duties following the delivery of a judgment annulling an act or declaring it to be invalid, those provisions are no less apt to empower the Commission to undertake such a re-imposition, after the Commission has resumed the proceeding that gave rise to the regulation annulled or declared to be invalid by the Courts of the European Union and has thereby, in accordance with the procedural and substantive rules applicable ratione temporis, remedied the illegalities identified (see, to that effect, judgments of 19 June 2019, C & J Clark International, C‑612/16, EU:C:2019:508, paragraphs 42 and 43, and of 8 September 2022, Puma and Others v Commission, C‑507/21 P, EU:C:2022:649, paragraph 58).
58 The resumption of the administrative procedure following the delivery of the judgment in Eurobolt could, therefore, validly result in the re-imposition of anti-dumping duties provided for by Implementing Regulation No 723/2011 with respect to the products which entered free circulation during the period of application of Regulation No 91/2009. It follows that the full and immediate repayment of the relevant anti-dumping duties imposed by that implementing regulation was not necessary (see, by analogy, judgment of 8 September 2022, Puma and Others v Commission, C‑507/21 P, EU:C:2022:649, paragraph 68).
59 It is apparent from the considerations set out in paragraphs 55 to 58 of the present judgment that the General Court was fully entitled to hold, in paragraph 48 of the judgment under appeal, that the Commission had been able to resume the proceeding at the stage at which the irregularity penalised in the judgment in Eurobolt had been committed and, subsequently, re-impose the measures contained in Implementing Regulation No 723/2011, without ordering recovery of the anti-dumping duties paid by the appellants.
60 In the third place, as regards the principle of non-retroactivity, as the Court has previously held, whilst Article 10(1) of Regulation No 1225/2009, reproduced identically in Article 10(1) of Regulation 2016/1036, 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 Regulations No 1225/2009 and 2016/1036 derogate from that principle (judgment of 17 December 2015, APEX, C‑371/14, EU:C:2015:828, paragraph 48).
61 Accordingly, regarding anti-circumvention rules, the retroactive collection of anti-dumping duties extended by a regulation for their extension adopted on the basis of Article 13 of those regulations is authorised by that article only from the date on which registration of the imports, in accordance with Article 14(5) of those regulations, was made obligatory (judgment of 17 December 2015, APEX, C‑371/14, EU:C:2015:828, paragraph 49).
62 It follows that resumption of the proceeding after an extending regulation has been annulled or declared invalid cannot lead to the regulation which will be adopted at the end of that procedure re-imposing anti-dumping duties which would be applied to products entering free circulation before the date on which that registration was made obligatory. By contrast, such a resumption of the proceeding is authorised, even where the anti-dumping duties concerned have expired, provided that such duties are re-imposed only in respect of their initial application period (see, by analogy, judgment of 15 March 2018, Deichmann, C‑256/16, EU:C:2018:187, paragraphs 77 and 78), and therefore only for the period prior to that expiry, with the result that the extended measures have exclusively retroactive effect (judgment of 17 December 2015, APEX, C‑371/14, EU:C:2015:828, paragraph 47).
63 Article 10(1) of Regulation 2016/1036 did not therefore preclude the regulation at issue from re-imposing anti-dumping duties on imports that were made during the period of application of the regulation declared to be invalid by the judgment in Eurobolt (see, by analogy, judgment of 19 June 2019, C & J Clark International, C‑612/16, EU:C:2019:508, paragraph 57).
64 It follows that the General Court, similarly, did not err in law in holding, in paragraphs 55 and 61 of the judgment under appeal, that the principle of non-retroactivity, as enshrined in Article 10(1) of Regulation No 1225/2009, did not preclude the resumption of the anti-dumping proceeding concerning the products in question and the re-imposition of anti-dumping duties on imports that were made during the period of application of the regulation declared invalid by the judgment in Eurobolt.
65 In the fourth place, it is apparent from the grounds set out in paragraphs 54 to 58 and 60 to 63 of the present judgment that the Commission, in adopting the regulation at issue, did not usurp the competence of the Court of Justice under Article 264 TFEU since it did not call into question the operative part of the judgment in Eurobolt or the grounds that constitute its basis, but merely, as competent institution, adopt an extending regulation within the limits ratione temporis as described in the previous paragraph of the present judgment. As a result, it cannot be claimed that the General Court infringed its obligation to state reasons under Article 296 TFEU by holding, in paragraph 99 of the judgment under appeal, that Article 264 TFEU does not preclude the institution concerned from taking measures which can have the same effects ratione temporis as those of the decision which the Court of Justice would take if it were to apply the second paragraph of that provision, given that, as is apparent from paragraph 98 of the judgment under appeal, the appellants did not establish that the regulation at issue was incompatible with the operative part and grounds of the judgment in Eurobolt.
66 In the light of all the foregoing considerations, the first to fourth grounds of appeal must be rejected in their entirety as being unfounded.
67 By their fifth ground of appeal, which relates to paragraph 112 of the judgment under appeal, the appellants argue that the General Court misinterpreted and misapplied the principle of effective judicial protection by finding that that principle does not require full repayment of the anti-dumping duties in the present case.
68 According to the appellants, in coming to that conclusion, the General Court failed to have regard to the argument that, if the Commission were empowered to adopt acts such as the regulation at issue, the judgments of the Court of Justice would be deprived of any legal effect. Should the approach taken by the Commission in that regulation be endorsed, this would lead to no economic stakeholder having an incentive to challenge before the Court the Commission’s conduct in anti-dumping cases, with the result that the Commission’s power would remain unchecked. The Commission could always ‘cure’ any infringements established by the Court by adopting an act which produces effects in the past, as if the Court had never delivered any decision.
69 The Commission contends that the fifth ground of appeal should be rejected as unfounded.
70 By their fifth ground of appeal, the appellants claim that the General Court erred in law by holding, in paragraph 112 of the judgment under appeal, that the Commission had had regard to the appellants’ right to effective judicial protection. So doing, the General Court misapplied that right in holding that it did not require full repayment of the anti-dumping duties imposed by the regulation declared to be invalid by the judgment in Eurobolt.
71 In that connection, it is apparent from paragraph 112 of the judgment under appeal that the General Court held that, by remedying the procedural irregularity penalised by the judgment in Eurobolt, that is to say, by ensuring that the competent Advisory Committee’s deliberation took place in full compliance with the essential procedural requirements laid down by the applicable legislation and confirming the findings of the investigation which had not been not disputed by the judgment in Eurobolt, the Commission had fulfilled its obligation under Article 266 TFEU to take the necessary measures to comply with that judgment and had had regard to the appellants’ right to effective judicial protection.
72 The appellants maintain, in essence, that, in coming to that conclusion, the General Court failed to have regard to the argument that, if the Commission were empowered to adopt acts such as the regulation at issue, the decisions of the Court of Justice would be deprived of any legal effect.
73 That ground of appeal is, however, based on an incorrect premiss. As observed by the Advocate General in point 64 of his Opinion, there was, on the date when the regulation at issue was adopted, no decision of the EU Courts finding that Implementing Regulation No 723/2011 was unlawful on the substance.
74 As observed in paragraph 56 of the present judgment, in the judgment in Eurobolt, the Court merely found that the implementing regulation was invalid on the basis of a procedural irregularity which was capable, as is apparent from the examination of the first to fourth grounds of the present appeal, of being remedied.
75 The General Court was therefore entitled to find, in paragraph 112 of the judgment under appeal, that, by remedying that procedural irregularity, the Commission had had regard to the effective judicial protection of the appellants by ensuring that the deliberation of the competent Advisory Committee took place in full compliance with the essential procedural requirements laid down by the applicable legislation.
76 In the light of the foregoing considerations, the fifth ground of appeal must be rejected as being unfounded.
77 By their sixth ground of appeal, which relates to paragraphs 129, 134, 138, 144, 148 and 154 of the judgment under appeal, the appellants argue that the General Court misinterpreted and misapplied Article 13(1) of Regulation 2016/1036, Article 5(1) and (2) TEU and the principle of good administration by finding that the regulation at issue has a proper legal basis.
78 The appellants submit, as a preliminary point, that the General Court appears to have misinterpreted the scope of the second plea raised in support of their action for annulment. By that plea, the appellants maintained that Regulation No 91/2009, in so far as it had been ruled unlawful and consequently repealed in 2016, could not constitute a proper legal basis for adopting the regulation at issue in 2020, as that regulation was ‘ancillary’ to Regulation No 91/2009 which imposed the definitive anti-dumping duty.
79 The appellants raise, in essence, four arguments in support of the sixth ground of appeal. First, they claim that the General Court based its reasoning incorrectly on the judgment of 17 December 2015, APEX (C‑371/14, EU:C:2015:828), since the legal basis of the contested measure was not at issue in that judgment. Second, the General Court invoked Article 207 TFEU as a legal basis for adopting, in general, anti-dumping measures and, consequently, the regulation at issue, while Regulation No 91/2009, which was unlawful, could not constitute a proper legal basis for the regulation at issue. Third, the General Court also overlooked a crucial factor by finding that the repeal of Regulation No 91/2009 had not affected the validity thereof. The crucial factor is that the Commission, which repealed that regulation in 2016 because it was unlawful, wrongly ‘revived’ it in 2020 to serve as the legal basis of the regulation at issue. Fourth, the General Court erred in finding that the legality of Regulation No 91/2009 cannot be assessed under WTO law. The appellants do not claim that the infringements of WTO law in that regulation vitiate the regulation at issue, but specify that that regulation could not serve as a legal basis for the regulation at issue.
80 The Commission maintains that the sixth ground of appeal is ineffective, as it is based on the incorrect hypothesis that the legal basis of the regulation at issue is Regulation No 91/2009. It submits that, in any event, that ground of appeal is unfounded.
81 By their sixth ground of appeal, the appellants maintain, in essence, that Regulation No 91/2009 was repealed in 2016 on account of its unlawfulness, so that it cannot constitute the legal basis of the regulation at issue adopted in 2020, as that regulation is ancillary to Regulation No 91/2009.
82 In the first place, it must be borne in mind that, when it intends to re-impose definitive anti-dumping duties, the Commission must comply with the principles governing the temporal application of the law and the requirements relating to the principles of legal certainty and the protection of legitimate expectations. This requires the application of the substantive rules in force at the date of the facts in issue even if those rules are no longer in force when an EU institution adopts an act, provided that the provision which forms the legal basis of an act and empowers the EU institution to adopt the act in question is in force when the act is adopted. Similarly, the procedure for adopting that act must be carried out in accordance with the rules in force at the time of adoption (judgment of 14 June 2016, Commission v McBride and Others, C‑361/14 P, EU:C:2016:434, paragraph 40).
83 As recalled in paragraph 57 of the present judgment, Articles 13 and 14(1) of Regulation 2016/1036, read together, do indeed empower the Commission to ‘re-impose’, after an annulment or declaration of invalidity on grounds which it is possible to remedy, anti-dumping duties by adopting a new regulation.
84 As stressed by the Advocate General in point 44 of his Opinion, although it is self-evident that anti-dumping duties can only be extended if they have been validly imposed in the first place, it is not the act imposing those duties that constitutes the legal basis for extending them, but rather Regulation 2016/1036. Moreover, the ancillary nature of the regulation at issue in relation to Regulation No 91/2009 affects only the temporal scope of the first regulation. As is apparent, in essence, from paragraph 62 of the present judgment, a regulation extending anti-dumping duties relates only to a period during which the initial measure imposing that duty is or was itself applicable (see, to that effect, judgment of 17 December 2015, APEX, C‑371/14, EU:C:2015:828, paragraphs 53 and 54).
85 It follows that, in the present case, the provisions of Regulation 2016/1036 referred to by the regulation at issue, that is to say, Article 13 and Article 14(1), constitute the valid legal bases of the regulation at issue. The General Court did not therefore err in law when it found, in paragraphs 125 and 128 of the judgment under appeal, that the regulation at issue was adopted on the basis of those provisions, not on the basis of the provisions of Regulation No 91/2009.
86 In the second place, contrary to the appellants’ claim, the General Court did not ‘miss the point’ in referring, in paragraph 136 of the judgment under appeal, to Article 207 TFEU. Although the General Court referred to that provision of primary law, it did so in order to reject the appellants’ argument relating to the breach of the principle of the conferral of powers laid down in Article 5(1) and (2) TEU, not to justify the legal basis of the regulation at issue. Article 207(2) TFEU is the provision of primary law empowering the EU legislature to adopt rules conferring on the Commission implementing power to adopt anti-circumvention regulations, which the legislature did in Article 13 and Article 14(1) of Regulation 2016/1036.
87 In the third place, the General Court cannot be criticised for having referred, in paragraphs 129 and 134 of the judgment under appeal, to the judgment of 17 December 2015, APEX (C‑371/14, EU:C:2015:828) on the ground that, in that judgment, the Court of Justice did not rule on the argument that an unlawful regulation cannot constitute the legal basis of the regulation at issue.
88 First, as observed by the Advocate General in point 57 of his Opinion, the General Court’s findings relating to EU acts in the light of WTO rules and rulings are not vitiated by any error of law. As the Court has previously held, the validity of Regulation No 91/2009 cannot be assessed by reference to the DSB reports of 28 July 2011 and 12 February 2016 (see, to that effect, judgment of 9 July 2020, Donex Shipping and Forwarding, C‑104/19, EU:C:2020:539, paragraphs 45 to 48). Second, the repeal of an EU act by its author cannot be regarded as a finding of unlawfulness of that act with ex tunc effect, since such a repeal produces effects only for the future.
89 The General Court did not therefore err in law by holding, in paragraph 138 of the judgment under appeal, that the repeal ex nunc of the anti-dumping duties imposed by Regulation No 91/2009, following the DSB decision of 12 February 2016, did not affect its validity.
90 Indeed, as acknowledged specifically by the Court of Justice in paragraph 54 of the judgment of 17 December 2015, APEX (C‑371/14, EU:C:2015:828), while it follows from the ancillary nature of a measure extending a definitive anti-dumping duty that the extended measures cannot apply beyond the expiry of the measures which they extend, the decision to impose the former must not necessarily be taken before the latter have expired.
91 The sixth ground of appeal must therefore be rejected as being unfounded.
92 By their seventh ground of appeal, which relates to paragraphs 164 to 167 of the judgment under appeal, the appellants argue that the General Court committed three errors of law by holding that the regulation at issue could definitively prohibit the repayment of the anti-circumvention duties paid by them on the basis of Implementing Regulation No 723/2011 and instruct the customs authorities to recover the duties previously repaid. So doing, the General Court misinterpreted and misapplied Article 13(1) of Regulation 2016/1036, Article 5(1) and (2) TEU and the principle of good administration.
93 First, the appellants claim that the General Court was wrong to find that the prohibition on repayment of the unduly paid duties is ‘nothing more than the logical consequence’ of the re-imposition of anti-circumvention duties, whilst it is settled case-law that decisions on requests for repayment of unduly paid duties is an exclusive competence of the customs authorities. Second, the General Court misinterpreted the case-law of the Court of Justice empowering the Commission to issue directions to customs authorities. That case-law concerns the hypothesis of a temporary prohibition issued by the Commission on the repayment of duties paid pending the reopening of an anti-dumping proceeding and the re-imposition of duties, not a definitive prohibition on repayment. Third, the General Court wrongly concluded that the Commission could definitively prohibit repayment of the duties because the purpose of a temporary prohibition, permitted by the Court of Justice, is ‘to enable and prepare’ a definitive prohibition. Definitive decisions on repayment are an exclusive competence of customs authorities.
94 The Commission contends that the present ground of appeal is ineffective in part and unfounded in part.
95 By their seventh ground of appeal, the appellants submit, in essence, that the General Court erred in law by holding that the regulation at issue could definitively prohibit the repayment of the duties invalidated by the judgment in Eurobolt, in breach of Article 5(1) and (2) TEU.
96 In that connection, it is apparent from the case-law of the Court of Justice that the full and immediate repayment of the anti-dumping duties concerned by the declaration of invalidity of the regulation which imposes them is not necessary in all circumstances. The Commission, in those same circumstances, has competence to issue directions to the customs authorities in order to comply with the obligation to implement the judgment declaring that that regulation is invalid (see, to that effect, judgments of 15 March 2018, Deichmann, C‑256/16, EU:C:2018:187, paragraphs 59, 60, 70 and 71, and of 19 June 2019, C & J Clark International, C‑612/16, EU:C:2019:508, paragraph 48).
97 Admittedly, in the cases which gave rise to the case-law cited in the previous paragraph, the directions at issue concerned a temporary prohibition on repayment, not, as in the present case, a definitive prohibition. However, as the General Court observed correctly in paragraph 167 of the judgment under appeal, the purpose of a temporary prohibition on repayment is to enable and prepare a possible permanent prohibition if, following the resumption of the anti-circumvention investigation, the invalidated duties are re-imposed. The prohibition on repayment of unduly paid duties is therefore nothing more than the logical consequence of the re-imposition of those duties following a proceeding entirely free from defects.
98 Contrary to the appellants’ claim, although it is for the customs authorities to repay import or export duties, that power can be exercised, in accordance with the first subparagraph of Article 116(1) of the Customs Code, only on account of an error by the competent authorities or where it is established that the customs debt initially notified exceeds the amount payable, that the products were defective or did not comply with the terms of the contract, or on grounds of equity.
99 In the present situation, as the anti-dumping duties set by the regulation at issue were identical to those established by Implementing Regulation No 723/2011, it was within the Commission’s competence under Article 14(1) of Regulation 2016/1036 to prohibit the repayment of previously collected duties (see, by analogy, judgment of 15 March 2018, Deichmann, C‑256/16, EU:C:2018:187, paragraphs 57 and 58).
100 By re-imposing the anti-dumping duties through the regulation at issue, the Commission maintained the protection of the EU industry without, however, imposing on the appellants any obligation that went beyond the obligations resulting from Implementing Regulation No 723/2011, without the illegalities identified in the judgment in Eurobolt (see, by analogy, judgment of 8 September 2022, Puma and Others v Commission, C‑507/21 P, EU:C:2022:649, paragraph 68).
101 In the light of the foregoing considerations, the seventh ground of appeal must be rejected in its entirety as being unfounded.
102 Since none of the grounds put forward by the appellants in support of their appeal has been upheld, the appeal must be dismissed in its entirety.
103 Under Article 138(1) of the Rules of Procedure, which is applicable to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
104 Since the Commission has applied for costs against the appellants and they have been unsuccessful, they must be ordered to bear their own costs and to pay those incurred by the Commission.