Case T‑643/11

(publication by extracts)

Crown Equipment (Suzhou) Co. Ltd

and

Crown Gabelstapler GmbH & Co. KG

v

Council of the European Union

(Dumping — Imports of hand pallet trucks and their essential parts originating in China — Review — Article 11(2) of Regulation (EC) No 1225/2009 — Rights of defence — Error of fact — Manifest error of assessment — Obligation to state reasons)

Summary — Judgment of the General Court (Fourth Chamber), 12 December 2014

1.      Common commercial policy — Protection against dumping — Anti-dumping proceeding — Rights of defence — Right to be heard — Scope

(Charter of Fundamental Rights of the European Union, Art. 41(2); Council Regulation No 1225/2009)

2.      Common commercial policy — Protection against dumping — Anti-dumping proceeding — Right to sound administration — Scope

(Charter of Fundamental Rights of the European Union, Art. 41(2); Council Regulation No 1225/2009)

3.      Common commercial policy — Protection against dumping — Review procedure — Obligation on EU institutions to take account of all relevant and duly documented evidence — Scope

(Council Regulation No 1225/2009, Art. 11(2), third para.)

1.      Respect for the rights of the defence constitutes a fundamental principle of EU law, and the right to be heard in any proceedings forms an integral part of it, which applies to any person.

More particularly, in the context of anti-dumping investigations, it has been held that respect for the rights of the defence and the right to be heard in those investigations was of crucial importance. Respect for those rights presupposes that the undertakings concerned should have been placed in a position during the administrative procedure in which they could effectively make known their views on the correctness and relevance of the facts and circumstances alleged and on the evidence presented by the Commission in support of its allegation concerning the existence of dumping and the resultant injury.

However, respect for those rights cannot require the EU institutions to adhere to the point of view of the undertakings concerned. In order for the undertakings’ submission of views to be effective it is necessary only that they have been submitted in good time so that the EU institutions may take cognisance of them and assess, with all the requisite attention, their relevance for the content of the measure being adopted.

(see paras 38, 40, 41, 43)

2.      Although the Commission or the Council cannot be described as a ‘court or tribunal’ within the meaning of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, the Commission and the Council are nevertheless required during the administrative procedure to respect the fundamental rights of the European Union, which include the right to sound administration enshrined in Article 41 of the Charter of Fundamental Rights. In particular, it is Article 41, not Article 47 of that Charter, which governs the administrative procedure before the Commission and the Council in the matter of defence against dumped imports from non-EU countries.

In that regard, the right to sound administration presupposes a duty of diligence which requires the competent institution to examine carefully and impartially all the relevant aspects of the individual case.

(see paras 45, 46)

3.      In the context of the re-examination of anti-dumping measures approaching their expiry date, Article 11(2) of Regulation No 1225/2009 on protection against dumped imports from countries not members of the European Community requires the EU institutions to take account of all relevant and duly documented evidence presented in relation to the question as to whether the expiry of measures would be likely, or unlikely, to lead to the continuation or recurrence of dumping and injury.

The obligation to take those matters into account is satisfied in particular where the EU institutions take account of the development of the profitability, production, sales volumes, capacity utilisation rate, level of employment and productivity in the European Union during the relevant period.

(see paras 51, 52)