Language of document : ECLI:EU:T:2015:231

Case T‑169/12

Chelyabinsk electrometallurgical integrated plant OAO (CHEMK)
and
Kuzneckie ferrosplavy OAO (KF)

v

Council of the European Union

(Dumping — Imports of ferro-silicon originating, inter alia, in Russia — Partial interim review — Calculation of the dumping margin — Change of circumstances — Lasting nature)

Summary — Judgment of the General Court (Second Chamber), 28 April 2015

1.      Common commercial policy — Protection against dumping — Procedure for partial interim review of an anti-dumping duty — Aim — Verification of the need to maintain anti-dumping measures — Conditions for removing the measure — Significant and lasting change of circumstances — Cumulative conditions

(Council Regulation No 1225/2009, Art. 11(3) and (9))

2.      Common commercial policy — Protection against dumping — Procedure for partial interim review of an anti-dumping duty — Discretion of the institutions — Judicial review — Limits

(Art. 256 TFEU; Council Regulation No 1225/2009, Art. 11(3))

3.      Common commercial policy — Protection against dumping — Procedure for partial interim review of an anti-dumping duty — Verification of the need to maintain anti-dumping measures — Method of verification — Discretion of the institutions — Retrospective and prospective analyses

(Council Regulation No 1225/2009, Art. 11(3))

4.      Common commercial policy — Protection against dumping — Procedure for partial interim review of an anti-dumping duty — Distinction from the original investigation procedure

(Council Regulation No 1225/2009, Art. 11(1) and (3))

5.      Common commercial policy — Protection against dumping — Reimbursement of anti-dumping duties — Request for repayment based on Article 11(8) of Regulation No 1225/2009 — Conditions

(Council Regulation No 1225/2009, Art. 11(8))

6.      Common commercial policy — Protection against dumping — Procedure for partial interim review of an anti-dumping duty — Verification of the need to maintain anti-dumping measures — Determination of the dumping margin — No obligation precisely to determine the dumping margin

(Council Regulation No 1225/2009, Arts 2(11) and (12), and 11(3) and (9))

7.      EU law — Principles — Rights of defence — Observance thereof in the context of administrative proceedings — Antidumping — Obligation of the institutions carefully to ensure that the undertakings concerned are informed — Scope

(Council Regulation No 1225/2009, Art. 20(2))

1.      Pursuant to Article 11(3) of Regulation No 1225/2009 on protection against dumped imports from countries not members of the European Community (‘the basic regulation’), the objective of interim review of an anti-dumping duty is to verify the need for the continued imposition of the anti-dumping measures. In that regard, the institutions must first assess the need for the continued imposition of the existing measure and, on that basis, find a not only significant but also lasting change of circumstances with regard to the dumping. If either of those cumulative conditions is not satisfied, the institutions may conclude that there is a need to continue to impose that measure in force.

It is only as a second step, once the institutions have assessed the need for the continued imposition of the existing measures and decided to amend the existing measures, that they are bound, when determining the fresh measures, by the provisions in Article 11(9) of the basic regulation conferring on them the express power and obligation to apply, in principle, the same methodology as that used in the original investigation which led to the anti-dumping duty.

(see paras 43, 49, 56, 63, 77, 91)

2.      See the text of the decision.

(see paras 44, 45, 50, 53)

3.      On an interim review of an anti-dumping duty, the review which the Commission must conduct on the change of circumstances which may justify removal of such a duty leads it to carry out not only a retrospective analysis of the development of the situation under consideration, but also a prospective analysis of the probable development of the situation, as from the adoption of the review measure, in order to assess the likely effect of removing or amending that measure.

In that prospective analysis, the institution concerned must check, in the light of the evidence adduced by the author of the review request, whether the dumping will not reappear or will not increase once more in the future, with the result that measures are no longer necessary to counteract the dumping. The need to carry out the review of a measure in force is subject to the finding (i) that the circumstances concerning the dumping have significantly changed and (ii) that those changes are lasting. If either of those cumulative conditions is not satisfied, the institutions may conclude that there is a need to continue to impose that measure in force.

Given, moreover, that the second and third subparagraphs of Article 11(3) of Regulation No 1225/2009 do not contain any indication as regards the order in which those two examinations must be conducted, and that the institutions have a wide discretion, which includes the option of carrying out a prospective assessment, if the prospective assessment does not establish the need to continue to impose the measures, it is unnecessary for the institutions to carry out a detailed retrospective assessment and, therefore, in respect of the dumping, to perform a detailed calculation of the dumping margin.

In those circumstances, the institutions may, if they consider it appropriate to do so, begin with the prospective examination and then, if they conclude that the change of circumstances on which the author of the review request relies and which resulted in a reduction or elimination of dumping found at the end of the original investigation procedure is not lasting, refrain, in the review procedure, from precisely calculating the dumping margin.

(see paras 46-51, 69, 77, 94)

4.      In the area of commercial defence measures, a review procedure differs, in principle, from the original investigation procedure, which is governed by other provisions of Regulation No 1225/2009, some of which are not intended to apply to the review procedure, in the light of the general scheme and purposes of the system.

The objective difference between the two types of proceedings lies in the fact that imports subject to a review proceeding are those on which definitive anti-dumping duties have already been imposed and in respect of which sufficient evidence has generally been adduced to establish that the expiry of those measures would be likely to result in a continuation or recurrence of dumping and injury. On the other hand, where imports are subject to an original investigation, the purpose of that investigation is precisely to determine the existence, degree and effect of any alleged dumping. The objectives of Article 11(1) of Regulation No 1225/2009 are not in any way affected by the application of the provisions of Article 11(3) of that regulation.

The objective of Article 11(1) of the basic regulation is to ensure that an anti-dumping measure remains in force only to the extent that it is necessary to counteract the dumping. The objective of Article 11(3) of that regulation is to verify the need for the continued imposition of the anti-dumping measures. Therefore, where the institutions consider that the change of circumstances is not lasting, they are entitled, without in any way undermining the objective pursued by the said Article 11(1), to conclude that the continued imposition of the measure in force is necessary.

(see paras 59, 60, 62, 63)

5.      In the area of commercial defence measures, the refund procedure referred to in Article 11(8) of Regulation No 1225/2009 makes it possible to request reimbursement of duties already paid if it is shown that the dumping margin on the basis of which duties were paid has been eliminated, or reduced to a level which is below the level of the duty in force. It is therefore exclusively retrospective, since it applies in specific cases to situations in which an anti-dumping duty has been paid although the import in question was not dumped or was dumped at a lower level.

(see para. 79)

6.      The changes of circumstances respectively referred to in Article 11(3) of Regulation No 1225/2009 and Article 11(9) of that regulation differ, first, by their object. The change of circumstances for the purpose of Article 11(3) concerns dumping and injury. By contrast, the change of circumstances referred to by the provisions of Article 11(9) concerns the parameters used, in accordance in particular with the provisions of Article 2(11) and (12) of that regulation, in respect of the methodology chosen, in the original investigation which led to the imposition of the duty, in order to calculate the dumping margin. The change of circumstances found, in accordance with the provisions of Article 11(9) of the said regulation, may result inter alia from the loss of reliability of such a parameter used in the original investigation.

Moreover, when assessing the need to continue existing measures, the institutions have a wide discretion, which includes the option of carrying out a prospective assessment. It is only when the institutions have assessed that need and decided to amend the existing measures that they are bound, when determining the fresh measures, by the provision in Article 11(9) of the regulation requiring them to apply the methodology prescribed by Article 2 of the regulation.

Article 11(9) of Regulation No 1225/2009 applies only once the existence of a lasting change of circumstances has been found, in accordance with the provisions of Article 11(3) of that regulation, and it has been decided, pursuant to those provisions, to amend the existing measures, with the result that it proves necessary to recalculate the amount of the dumping margin. Conversely, where the institutions have concluded that there was no lasting change of circumstances, Article 11(9) does not apply.

Moreover, the fact that the concept of a ‘lasting nature’ is not explicitly mentioned in Article 11(3) of the basic regulation has no effect on the question whether Article 11(9) of the basic regulation, read in conjunction with Article 2(12) of that regulation, imposes on the institutions an obligation to precisely calculate a dumping margin at the end of the interim review. Article 11(3) of the basic regulation must be interpreted, in respect of dumping, as enabling the institutions to carry out both a retrospective and prospective examination. If, at the end of the prospective examination, the institutions conclude that the change of circumstances is not lasting, they may refrain from precisely determining the dumping margin.

(see paras 90-92, 94)

7.      The requirements stemming from compliance with defence rights must be observed not only in the course of proceedings which may result in the imposition of penalties, but also in investigative proceedings prior to the adoption of anti-dumping regulations which may directly and individually affect the undertakings concerned and entail adverse consequences for them. In particular, 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. Those requirements have also been made clear in Article 20(2) of Regulation No 1225/2009.

(see para. 98)