Case T-314/06

Whirlpool Europe Srl

v

Council of the European Union

(Dumping – Imports of certain combined refrigerator-freezers originating in South Korea – Definition of the product concerned – Rights of the defence – Advisory Committee – Duty to state reasons – Choice of the method used to define the product concerned – Article 15(2) and Article 20(5) of Regulation (EC) No 384/96 (now Article 15(2) and Article 20(5) of Regulation (EC) No 1225/2009))

Summary of the Judgment

1.      Procedure – Intervention – Extent of the intervener’s procedural rights linked to the date on which the application to intervene was made

(Rules of Procedure of the General Court, Arts 115(1) and 116(6))

2.      European Union law – Principles – Rights of the defence – Observance thereof in the context of administrative proceedings – Antidumping

(Council Regulations Nos 384/96, Art. 20 and 1225/2009, Art. 20)

3.      Common commercial policy – Protection against dumping – Investigation – Consultation of the Member States in the Advisory Committee

(Council Regulations Nos 384/96, Art. 15(2) and 1225/2009, Art. 15(2))

4.      Acts of the institutions – Statement of reasons – Obligation – Scope – Regulations imposing anti-dumping duties

(Art. 296 TFEU)

5.      Common commercial policy – Protection against dumping – Investigation – Definition of the product concerned

(Council Regulation No 384/96, Art. 1)

1.      Under Article 116(6) of the Rules of Procedure, an intervener which makes an application to intervene after the expiry of the period of six weeks, laid down in Article 115(1) of the Rules of Procedure, from the date of publication in the Official Journal of the notice of initiation of proceedings is entitled only to participate in the oral procedure, to receive a copy of the Report for the Hearing and to submit its observations on the basis of that report at the hearing.

(see para. 59)

2.      Respect for the rights of the defence is a fundamental principle of European Union law, in accordance with which the undertakings affected by an investigation which terminates in the adoption of an anti-dumping regulation must be placed in such a position during the administrative procedure that they can effectively make known their views on the correctness and relevance of the facts and circumstances alleged. That requirement is implemented in Article 20 of basic anti-dumping Regulation No 384/96 (now Article 20 of Regulation No 1225/2009).

In that regard, where the Commission has sent the applicant the revised definitive disclosure document and given it a deadline within which to make its representations, and the applicant has made its representations within the prescribed deadline following which the Commission submitted to the Council its proposal for the definitive regulation several days after the revised definitive disclosure document had been sent to the applicant, no infringement of the applicant’s rights of defence can be found. In addition, the fact that a draft proposal for a definitive regulation submitted to the Council is distributed within the Commission in accordance with a written procedure in order to gain the approval of the members of the institution does not call into question the possibility for the applicant to make itself heard effectively, since the Commission may, if necessary, stop the written procedure or amend its draft proposal in response to the representations made by the interested parties.

(see paras 74-78)

3.      Failure to respect the period prescribed in Article 15(2) of basic anti-dumping Regulation No 384/96 cannot, in itself, constitute an infringement of an essential procedural requirement which is liable to render unlawful the procedure for consulting the Member States in the Advisory Committee and, consequently, the definition of the product concerned adopted in the regulation imposing a definitive anti-dumping duty.

According to recital 17 in the preamble to Regulation No 461/2004, which amended the basic regulation in that regard, information provided to Member States in the Advisory Committee ‘should’ be sent at the latest 10 days before the date of a meeting set by the chairman of the Advisory Committee ‘[i]n order to provide Member States with sufficient time to consider this information’. It can be inferred from the wording of that recital and, in particular, from the use of the conditional (‘should’) that failure to observe the period of notice at issue does not render the procedure for consulting the Member States in the Advisory Committee null and void; rather, the requirements of Article 15(2) Regulation No 384/96 may be satisfied where the Member States are actually given enough time to examine the information which they are provided with by the chairman of the Advisory Committee.

In that regard, where it has not established that the Member States lacked the time necessary to be able to take proper note of the information relating to the new definition of the product concerned adopted by the Commission and that the Advisory Committee was thus not able to give its opinion in full knowledge of the facts, but, on the contrary, the question of the definition of the product concerned had been discussed in detail by the representatives of the Member States at the various meetings of the Advisory Committee held during the investigation and that that definition had been addressed, inter alia, in the documents relating to the definitive measures which the Commission sent to the Member States more than 10 working days prior to the meeting of the Advisory Committee, the failure to comply with the period prescribed in Article 15(2) of Regulation No 384/96 could not have had an impact on the outcome of the consultation procedure or, consequently, on the definition of the product concerned finally adopted in the regulation imposing a definitive anti-dumping duty.

(see paras 91-96)

4.      Provided that a regulation imposing definitive anti‑dumping duties falls within the general scheme of a series of measures, it cannot be required that its statement of reasons specify the often very numerous and complex matters of fact and law dealt with in the regulation or that the institutions adopt a position on all the arguments relied on by the parties concerned. On the contrary, it is sufficient for the institution which adopted the measure to set out the facts and the legal considerations having decisive importance in the scheme of the contested regulation.

It is true that the statement of reasons for a regulation imposing anti‑dumping duties must be assessed by taking account, inter alia, of the information which has been communicated by the European Union institutions to the interested parties and the submissions made by those parties during the investigation procedure. However, the institutions are not required to give specific reasons for a decision not to take account of the various arguments raised by the interested parties. It is sufficient that the regulation contain clear justification for the main points of their analysis, provided that that justification is capable of casting light on the reasons why they rejected the relevant arguments raised by the parties during the administrative procedure.

Moreover, a regulation imposing anti‑dumping duties following an investigation procedure has to be reasoned only as regards all the elements of fact and of law that are relevant for the purposes of the findings made in it. The statement of reasons for such a measure does not seek to explain the development of the position of the institutions during the administrative procedure and is thus not aimed at justifying the differences between the solution adopted in the final measure and the provisional position set out in the documents sent to the interested parties during that procedure to enable them to submit their observations. That obligation thus also does not require the institutions to explain why a position which they envisaged at a certain stage of the administrative procedure turned out to be unfounded.

(see paras 114-116)

5.      The purpose of the definition of the product concerned in an anti-dumping investigation is to aid in drawing up the list of the products which will, if necessary, be subject to the imposition of anti-dumping duties. For the purposes of that process, the European Union institutions may take account of a number of factors, such as, inter alia, the physical, technical and chemical characteristics of the products, their use, interchangeability, consumer perception, distribution channels, manufacturing process, costs of production and quality.

In that regard, the claim that physical differences can justify making a distinction between products only when they matter to consumers cannot be upheld. The European Union institutions may take account of a number of factors when defining the product concerned, among which the physical, technical and chemical characteristics of the products are naturally important, but without necessarily having priority. It cannot therefore be considered that the differences in the physical or technical characteristics are relevant only when they are reflected in consumer perception.

(see paras 138, 141)