Appeal brought on 14 September 2023 by European Commission against the judgment of the General Court (Fifth Chamber, Extended Composition) delivered on 5 July 2023 in Case T-126/21, Nevinnomysskiy Azot and NAK "Azot" v Commission

(Case C-568/23 P)

Language of the case: English

Parties

Appellant: European Commission (represented by: G. Luengo and P. Němečková, Agents)

Other parties to the proceedings: AO Nevinnomysskiy Azot, AO Novomoskovskaya Aktsionernaya Kompania NAK "Azot", Fertilizers Europe

Form of order sought

The appellant claims that the Court should:

set aside the judgment of the General Court (Fifth Chamber, Extended Composition) of 5 July 2023 in Case T-126/21¹ Nevinnomysskiy Azot and NAK "Azot" v. Commission and dismiss the remainder of the claims at first instance as unfounded; and

order the Applicants at first instance to pay the costs of the appeal and of the first instance.

Pleas in law and main arguments

First, the General Court erred in interpreting Article 11(2) of (EU) Regulation 2016/1036¹ (‘the Basic Regulation’) as preventing the Commission from initiating an expiry review on the basis of the Consolidated Request. Nothing in Article 11(2) of the Basic Regulation restricts the Commission’s obligation to duly examine whether a request to initiate an investigation (be it an original investigation or a review investigation) contains “sufficient evidence”.

Second, the General Court erred in applying Article 11(2) of the Basic Regulation when considering in this case that an alternative dumping calculation based on Russian domestic prices of Ammonium Nitrate altered the substance of the Original Request so that the Commission could not rely on it in deciding to initiate the expiry review. Even if the Commission would be limited in it is analysis to the claims or arguments made in the original expiry review request as to why injurious dumping was likely should the measures lapse, in the case at hand, the alternative dumping calculation provided by the Union producers after having filed the expiry review request merely supplemented or corroborated the allegation of likelihood of dumping should the measures lapse, which was based on evidence showing continuation of dumping in the original request. That the original allegation was based on a dumping calculation using a constructed normal value whereas the additional dumping calculation used actual domestic prices of ammonium nitrate does not change the essence of the claim originally made (namely, likelihood of dumping should the measures lapsed). Both calculations undisputedly showed dumping and, thus, served as evidence corroborating the continuation of dumping.

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¹ EU:T:2023:376

¹ 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).