Case T‑158/10
The Dow Chemical Company
v
Council of the European Union
(Dumping — Imports of ethanolamines originating in the United States — Definitive anti-dumping duty — Expiry of anti-dumping measures — Review — Likelihood of a continuation or recurrence of dumping — Article 11(2) of Regulation (EC) No 1225/2009)
Summary of the Judgment
1. Common commercial policy — Protection against dumping — Expiry review procedure — Retaining an anti-dumping measure — Conditions
(Council Regulation No 1225/2009, Art. 11(2), first para.)
2. Common commercial policy — Protection against dumping — Expiry review procedure — Retaining an anti-dumping measure — Conditions
(Council Regulation No 1225/2009, Arts 1 and 11(2))
3. Common commercial policy — Protection against dumping — Expiry review procedure — Possibility of changing the measures concerned — No such possibility
(Council Regulation No 1225/2009, Art. 11(2))
4. Common commercial policy — Protection against dumping — Expiry review procedure — Retaining an anti-dumping measure — Continuation of dumping — Definition
(Council Regulation No 1225/2009, Art. 11(2))
1. It is apparent from the first paragraph of Article 11(2) of the basic anti-dumping Regulation No 1225/2009, first, that the expiry of an anti-dumping measure after five years is the rule, whilst retaining it constitutes an exception. It is also clear that retention of a measure depends on the result of an assessment of the consequences of its expiry, that is, on a forecast based on hypotheses regarding future developments in the situation on the market concerned. Lastly, it is clear from that provision that the mere possibility that dumping and injury might continue or recur is insufficient to justify retaining a measure; the latter is dependent on the likelihood of continuation or recurrence of dumping and of injury actually having been established by the competent authorities on the basis of an inquiry.
(see para. 22)
2. The term ‘dumping’, as set out in Article 11(2) of the basic anti-dumping Regulation No 1225/2009, is not defined. However, having regard to the scheme of that regulation, and in the absence of any indication to the contrary, it must be held that the term ‘dumping’ set out in Article 11(2) has the same meaning as the term ‘dumping’ defined in Article 1 of the regulation which concerns the ‘principles’.
Within the meaning of Article 1 of the basic regulation, and in particular paragraphs 1 and 2 thereof, dumping refers to a product which is put into free circulation in the European Union. It is when that product is dumped and it causes injury that the institutions may, subject to other conditions, impose anti-dumping measures.
(see paras 40, 41)
3. Under Article 11(2) of the basic anti-dumping Regulation No 1225/2009, the institutions may either maintain the measures in force or let them expire. They may not change those measures to take into account, inter alia, the fact that certain undertakings did not dump.
(see para. 43)
4. The notion of continuation of dumping in Article 11(2) of the basic anti-dumping Regulation No 1225/2009 covers dumping of the product concerned from a third country and not merely dumping by certain undertakings.
In this respect, the Council commits a manifest error of assessment in finding continued dumping during a review investigation period and in finding, on that basis, a likelihood of continuation of dumping where imports from the applicant represent the great majority of imports from third countries during the review investigation period and that those imports had been effected without dumping. Since it should have found that the weighted average margin for imports of the product at issue originating in those third countries was negative, the Council cannot come to the conclusion that dumping had continued during the review investigation period, nor that there is a likelihood of continuation of dumping. In those circumstances, the Council must demonstrate that there is a likelihood of a recurrence of dumping.
(see paras 44, 45, 47)