ORDER OF THE GENERAL COURT (Fifth Chamber)
21 January 2014 (*)
(Action for annulment – Dumping – Imports of ceramic tiles originating in China – Definitive anti-dumping duty – Absence of individual concern – Regulatory act entailing implementing measures – Inadmissibility)
In Case T‑596/11,
Bricmate AB, established in Stockholm (Sweden), represented by C. Dackö, A. Willems and S. De Knop, lawyers,
applicant,
v
Council of the European Union, represented by J.‑P. Hix and B. Driessen, acting as Agents, assisted initially by G. Berrisch and A. Polcyn, and subsequently by A. Polcyn, lawyers,
defendant,
supported by
European Commission, represented by M. França and A. Stobiecka-Kuik, acting as Agents,
and by
Cerame-Unie AISBL, established in Brussels (Belgium),
Asociación Española de Fabricantes de Azulejos y Pavimentos Cerámicos (ASCER), established in Castellón de la Plana (Spain),
Confindustria Ceramica, established in Sassuolo (Italy),
Casalgrande Padana SpA, established in Casalgrande (Italy),
Etruria Design Srl, established in Modena (Italy),
represented by V. Akritidis and Y. Melin, lawyers,
interveners,
APPLICATION for annulment of Council Implementing Regulation (EU) No 917/2011 of 12 September 2011 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of ceramic tiles originating in the People’s Republic of China (OJ 2011 L 238, p. 1),
THE GENERAL COURT (Fifth Chamber),
composed of A. Dittrich, President, J. Schwarcz (Rapporteur) and V. Tomljenović, Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1 By notice of initiation of 19 June 2010, the European Commission initiated an anti-dumping proceeding concerning imports of ceramic tiles originating in the People's Republic of China (OJ 2010 C 160, p. 20) (‘the notice of initiation’). The investigation of dumping and injury covered the period from 1 April 2009 to 31 March 2010. Examination of trends for the purposes of assessing injury and causation covered the period from 1 January 2007 to 31 March 2010. The investigation covered all ceramic tiles imported under headings 6907 and 6908 of the Combined Nomenclature in Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 1987 L 256, p. 1), as amended by Council Regulation (EC) No 254/2000 of 31 January 2000 (OJ 2000 L 28, p. 16) (‘the CN’).
2 The applicant, Bricmate AB, was selected with six other companies to form part of the sample of independent importers. On 10 September 2010, it submitted a response to the Commission’s questionnaire, which it supplemented on 10 December 2010.
3 On 16 March 2011 the Commission adopted Regulation (EU) No 258/2011 imposing a provisional anti-dumping duty on imports of ceramic tiles originating in the People’s Republic of China (OJ 2011 L 70, p. 5; ‘the provisional regulation’). On 15 April 2011 the applicant gave the Commission its reponse to that regulation. On 4 July 2011, the Commission sent the applicant a general disclosure document on the basis of which it proposed to recommend to the Council of the European Union that the latter should impose definitive anti-dumping measures and replied to the applicant’s comments of 15 April 2011. On 11 July 2011, the applicant submitted its observations on the documents which had been sent to it by the Commission on 4 July 2011. Following the intervention by the hearing officer, it supplemented its comments on 15 July 2011. By letter of 27 July 2011, the Commission replied to the applicant’s observations, with the latter submitting comments to that reply on 23 August 2011.
4 On 12 September 2011 the Council adopted Implementing Regulation (EU) No 917/2011 of 12 September 2011 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of ceramic tiles originating in the People’s Republic of China (OJ 2011 L 238, p. 1; ‘the contested regulation’). Article 1 of that regulation provides as follows:
‘1. A definitive anti-dumping duty is hereby imposed on imports of glazed and unglazed ceramic flags and paving, hearth or wall tiles; glazed and unglazed ceramic mosaic cubes and the like, whether or not on a backing, currently falling within CN codes 6907 10 00, 6907 90 20, 6907 90 80, 6908 10 00, 6908 90 11, 6908 90 20, 6908 90 31, 6908 90 51, 6908 90 91, 6908 90 93 and 6908 90 99, and originating in the People’s Republic of China.
2. The rate of the definitive anti-dumping duty applicable to the net, free-at-Union-frontier price, before duty, of the products described in paragraph 1 and manufactured by the companies listed below shall be as follows:
Company | Duty | TARIC Additional Code |
Dongguan City Wonderful Ceramics Industrial Park Co., Ltd; Guangdong Jiamei Ceramics Co., Ltd; Qingyuan Gani Ceramics Co. Ltd, Foshan Gani Ceramics Co. Ltd | 26.3 % | B011 |
Guangdong Xinruncheng Ceramics Co. Ltd | 29.3 % | B009 |
Shandong Yadi Ceramics Co., Ltd | 36.5 % | B010 |
Companies listed in Annex I | 30.6 % | |
All other companies | 69.7 % | B999 |
…’
5 On 15 September 2011, the Commission sent the applicant a final letter replying to its observations of 23 August 2011.
Procedure and forms of order sought
6 By application lodged at the Registry of the General Court on 24 November 2011, the applicant brought the present action.
7 By separate document lodged at the Court Registry on 16 January 2012, the Council raised an objection of inadmissibility under Article 114(1) of the Rules of Procedure of the General Court.
8 By document lodged at the Court Registry on 27 January 2012, the Commission applied to intervene in support of the form of order sought by the Council.
9 By document lodged at the Court Registry on 5 March 2012, the applicant submitted its observations on the objection of inadmissibility.
10 By document lodged at the Court Registry on 12 March 2012, Cerame-Unie, Asociación Española de Fabricantes de Azulejos y Pavimentos Cerámicos (ASCER), Confindustria Ceramica, Casalgrande Padana SpA and Etruria Design Srl (together, ‘Cerame‑Unie and Others’) applied to intervene in support of the form of order sought by the Council. By document lodged at the Court Registry on 13 April 2012, the applicant raised objections to the intervention of ASCER, of Confindustria Ceramica, of Casalgrande Padana SpA and of Etruria Design Srl. The Council did not raise any objection.
11 By order of 16 April 2012, the President of the Second Chamber of the General Court granted the Commission leave to intervene. The latter, by its statement in intervention, which was limited to the issue of the admissibility of the action, lodged at the Court Registry on 14 May 2012, supported the objection of inadmissibility raised by the Council.
12 By order of 11 July 2012, the President of the Second Chamber of the General Court granted Cerame-Unie and Others leave to intervene.
13 By way of measures of organisation of procedure, the Court (Second Chamber) requested the parties to produce certain documents and to reply to a number of questions. The parties acceded to that request within the prescribed period.
14 Following a change in the composition of the Chambers of the Court, the Judge‑Rapporteur was assigned to the Fifth Chamber, to which the present case has therefore been assigned.
15 The applicant claims that the Court should:
– annul the contested regulation;
– order the Council and the interveners to pay the costs.
16 The Council contends that the Court should:
– dismiss the action as being inadmissible;
– order the applicant to pay the costs;
– in the alternative, stay its proceedings in the present procedure pending the resumption of proceedings in Case T-134/10 FESI v Council.
17 The Commission contends that the Court should:
– dismiss the action as inadmissible;
– order the applicant to pay the costs.
18 Cerame-Unie and Others claim that the Court should:
– dismiss the action as inadmissible;
– order the applicant to pay the costs.
Law
19 Pursuant to Article 114(1) and (4) of the Rules of Procedure, the Court may, if a party so requests, rule on the objection of inadmissibility without considering the merits of the case. Under paragraph 3 of that article, unless the Court otherwise decides, the remainder of the proceedings is to be oral. In the present case, the Court considers that it has sufficient information from the documents before it and that there is no need to proceed to the oral stage of the proceedings.
20 The plea of inadmissibility raised by the Council comprises two parts. First, the Council claims that the applicant is not individually concerned by the regulation which it seeks to have annulled. Second, the Council claims that the contested regulation entails implementing measures within the meaning of the fourth paragraph of Article 263 TFEU.
The first part, alleging that the applicant is not individually concerned
21 The Council and the interveners claim in essence that the institutions did not use the sales prices supplied by the applicant either to establish the export price in order to determine whether dumping had occurred or to calculate the anti-dumping duty itself. They also take the view that the applicant is neither dependent on imports of the products at issue from China nor concerned by the contested regulation in a manner that differs from that of other independent importers.
22 The applicant considers, first, that it is, essentially, individually differentiated because of the alleged use of information which it had supplied for the purpose of constructing the export price, the dumping margin, or even to calculate the anti-dumping duty itself. Second, it claims to have been individually concerned by the contested regulation by reason of certain attributes which are peculiar to it and which differentiate it from all other persons within the meaning of the judgment in Case C‑358/89 Extramet Industrie v Council [1991] ECR I‑2501, paragraphs 16 and 17, and of the judgment in Case T‑598/97 BSC Footwear Supplies and Others v Council [2002] ECR II‑1155, paragraph 48.
23 In that regard, it should be borne in mind that, although it is true that, in the light of the criteria set out in the fourth paragraph of Article 263 TFEU, regulations imposing anti-dumping duties are, by virtue of their nature and scope, of a general nature in that they apply generally to the economic operators concerned, certain of their provisions may none the less be of individual concern to particular traders (Joined Cases 239/82 and 275/82 Allied Corporation and Others v Commission [1984] ECR 1005, paragraph 11; Case T‑597/97 Euromin v Council [2000] ECR II‑2419, paragraph 43; BSC Footwear Supplies and Others v Council, cited in paragraph 22 above, paragraph 43; and judgment of 19 April 2012 in Case T‑162/09 Würth and Fasteners (Shenyang) v Council, not published in the ECR, paragraph 21).
24 It follows that measures imposing anti-dumping duties may, without losing their character as regulations, be of individual concern in certain circumstances to certain traders, who therefore have standing to bring an action for their annulment (Extramet Industrie v Council, cited in paragraph 22 above, paragraph 14).
25 In the first place, the European Union Courts have held that certain provisions of regulations imposing anti-dumping duties may be of individual concern to those of the producers and exporters of the product in question who are charged with practising dumping on the basis of data relating to their commercial activities. That is generally the case where producers or exporters are able to demonstrate that they were identified in the measures adopted by the Commission or the Council, or were concerned by the preliminary investigations (see, to that effect, Allied Corporation and Others v Commission, cited in paragraph 23 above, paragraphs 11 and 12; Euromin v Council, cited in paragraph 23 above, paragraph 45; and BSC Footwear Supplies and Others v Council, cited in paragraph 22 above, paragraph 45).
26 In the second place, certain provisions of regulations imposing anti-dumping duties are also of individual concern to those of the importers of the product at issue whose resale prices were taken into account for the construction of export prices and which are, therefore, concerned by the findings relating to the existence of dumping (Joined Cases C‑133/87 and C‑150/87 Nashua Corporation and Others v Commission and Council [1990] ECR I‑719, paragraph 15; Case C‑156/87 Gestetner Holdings v Council and Commission [1990] ECR I‑781, paragraph 18; BSC Footwear Supplies and Others v Council, cited in paragraph 22 above, paragraph 46).
27 The Court of Justice has also held that importers associated with exporters in non-member countries on whose products anti-dumping duties have been imposed may challenge the regulations imposing such duties, particularly where the export price has been calculated on the basis of their selling prices on the European Union market (see BSC Footwear Supplies and Others v Council, cited in paragraph 22 above, paragraph 47 and the case-law cited) as well as in the case where it was not the existence of dumping which was established on the basis of the resale prices of those importers but the calculation of the anti-dumping duty itself (see, to that effect, Joined Cases C‑305/86 and C‑160/87 Neotype Techmashexport v Commission and Council [1990] ECR I‑2945, paragraphs 19 and 20, and order of 27 January 2006 in Case T-278/03 Van Mannekus v Council, not published in the ECR, paragraph 119).
28 In the third place, the Court of Justice has held that an original equipment manufacturer, without it being necessary to categorise it as an importer or exporter, was individually concerned by the provisions of the regulation establishing anti-dumping duties relating to the dumping practices of the producer from which it had bought the products because of the particular features of its business dealings with that producer. The Court of Justice took the view that it was in order to reflect those particular features that the Council had fixed a certain profit margin in constructing the normal value, which had then been taken into account in calculating the dumping margin on the basis of which the anti-dumping duty had been set, with the result that the original equipment manufacturer was concerned by the findings relating to the existence of the dumping complained of (see, to that effect, Nashua Corporation and Others v Commission and Council, cited in paragraph 26 above, paragraphs 17 to 20, and Gestetner Holdings v Council and Commission, cited in paragraph 26 above, paragraphs 20 to 23).
29 Such recognition of the right of certain categories of traders to bring an action for the annulment of an anti-dumping regulation cannot, however, prevent other traders from also being able to claim that they are individually concerned by such a regulation by reason of certain attributes which are peculiar to them and which differentiate them from all other persons (Extramet Industrie v Council, cited in paragraph 22 above, paragraph 16).
30 The Court of Justice has recognised that that was the case in respect of an independent importer which had established the existence of a set of factors constituting a situation which was peculiar to it and which differentiated it, as regards the measure in question, from all other traders. In particular, the independent importer concerned had proved, first, that it was the largest importer of the product forming the subject-matter of the anti-dumping measure and, at the same time, the end-user of the product, secondly, that its business activities depended to a very large extent on those imports and, thirdly, that those activities were seriously affected by the contested regulation in view of the limited number of manufacturers of the product concerned and of the difficulties which it encountered in obtaining supplies from the sole European Union producer, which, moreover, was its main competitor for the processed product (judgments in Extramet Industrie v Council, cited in paragraph 22 above, paragraph 17, and in BSC Footwear Supplies and Others v Council, cited in paragraph 22 above, paragraph 50; order in Van Mannekus v Council, cited in paragraph 27 above, paragraph 122).
31 In the present case, it must be observed, first, that Bricmate does not belong to any of the three categories of operators referred to in paragraphs 25 to 28 above which the case-law has recognised as having a direct right of action against regulations imposing anti-dumping duties.
32 Indeed, as the applicant itself confirms, it is an independent importer.
33 As regards the applicant’s argument that it should be treated in the same way as an associated importer, this cannot be accepted. It is apparent, first, from Article 2(9) of Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (OJ 2009 L 343, p. 51; corrigendum at OJ 2010 L 7, p. 22) (‘the basic regulation’), that, where it appears that the export price is unreliable because of an association or a compensatory arrangement between the exporter and the importer or a third party, the export price may be constructed on the basis of the price at which the imported products are resold for the first time to an independent buyer. Second, the amount of the anti-dumping duty which may have to be paid is determined, in accordance with Article 1(2) of the contested regulation, by the net, free-at-Union-frontier price, before duty. In both cases, those prices correspond, for the associated importers, to the customs value within the meaning of Article 30(2)(c) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1; ‘the Community Customs Code’). Under that provision, the customs value is based essentially on the price at which the imported products are sold by the importer in question to persons not connected with the vendor. Unlike independent importers, associated importers are therefore in a position to influence, by means of the resale prices charged for the products in question to independent buyers, the export price and the amount of the anti-dumping duty payable (see, to that effect, Neotype Techmashexport v Commission and Council, cited in paragraph 27 above, paragraph 20).
34 Independent importers cannot therefore be treated in the same way as associated importers for the purposes of examining whether they are individually concerned by a regulation imposing definitive anti-dumping duties.
35 The applicant submits, by reference to recital 59 in the preamble to the provisional regulation and to recital 111 in the preamble to the contested regulation, that it should have been regarded as being individually concerned in so far as its data had been used to construct the export price, to determine the dumping margin, and even for the calculation of the anti-dumping duty itself. Those arguments cannot, however, be accepted.
36 In the present case, the applicant has not contested recital 60 in the preamble to the provisional regulation, according to which the dumping margins were established by comparing the individual ex-works export prices of the sampled exporters to the domestic sales prices or to the constructed normal value, as appropriate. Next, as the Council, the Commission and Cerame-Unie and Others claim, it is apparent from recital 59 in the preamble to the provisional regulation and from recital 80 in the preamble to the contested regulation that the export price was calculated on the basis of the export prices actually paid or payable by the first independent customer, other than that by associated producers or exporters. When Chinese producers-exporters made sales through an associated importer within the European Union, the institutions had constructed the export price in accordance with Article 2(9) of the basic regulation. To construct the export price, the starting point was the price at which the associated importer sold the product to the first independent buyer. The institutions then made adjustments to that price to take account of all costs incurred between importation and resale, including sales costs, general and administrative expenses and profit. In that context, the institutions had considered that the associated importers’ actual profit was not reliable because of the relationship existing between the exporting producers and the associated importers. It is apparent from the replies of the Council and the Commission to the questions put by the Court, that, instead, they had used the average profit made by the seven sampled independent importers of the product at issue, including the applicant, and not by a sole independent importer, as might result from the last sentence of recital 59 in the preamble to the provisional regulation.
37 However, even if the information on the applicant’s profit had been used by the institutions, along with the information on the profit of the other independent importers included in the sample, in order to replace the profit, judged to be unreliable, of the associated importers, and which accordingly formed one of the factors for constructing the export price, that could not suffice as a basis for the view that the applicant was accordingly concerned by the findings as to the existence of dumping. That fact must rather be included in the more general context of its participation in the administrative procedure leading to the adoption of the contested regulation (see, by analogy, Würth and Fasteners (Shenyang) v Council, cited in paragraph 23 above, paragraph 32). Since any cooperating sampled independent importer is liable to provide a number of facts which could be taken into account by the institutions during the investigation, a contrary solution would run counter to well-established case-law, according to which, although participation by an undertaking in an anti-dumping proceeding may be taken into account, amongst other factors, in order to establish whether that undertaking is individually concerned by the regulation introducing anti-dumping duties adopted at the conclusion of that proceeding, if there are no other factors giving rise to a particular situation which distinguishes that undertaking from all other traders, with respect to the measure in question, such participation does not, of itself, give rise to a right for the undertaking to bring a direct action against that regulation (BSC Footwear Supplies and Others v Council, cited in paragraph 22 above, paragraph 61).
38 Recital 111 in the preamble to the contested regulation, on which the applicant bases certain of its arguments designed to prove that the information which it had supplied had been used for the purposes of determining the export price in the context of establishing whether dumping had occurred, or even in the context of the calculation of the anti-dumping duty itself, is worded as follows:
‘One party claimed that the calculations disclosed to the parties regarding the calculation of the export price did not correspond to the explanation given in recital 76 of the provisional Regulation. Upon verification, it is confirmed that there was a textual error in that recital. Indeed at provisional stage, the adjustment of the level of trade was made to the ex-works sales prices of the Union producers to unrelated customers on the Union market and no adjustment for post-importation costs was made in the calculation of the average export price. At the definitive stage, the CIF Union frontier prices of exporting producers of the country concerned were adjusted for the existing custom duties and for post-importation costs (costs incurred at Union port for importation, transportation and warehouse expenses which are incurred before the resale by importers), on the basis of the information provided by the cooperating unrelated importers.’
39 It is apparent from this that the export price which is referred to in recital 111 in the preamble to the contested regulation is the cif price, including the cost of the goods, insurance and freight necessary to take the goods to the European Union port, used to calculate price-undercutting, in the context of evaluating the injury suffered by the European Union industry. By contrast, the export price used in the context of determining whether dumping exists is an ex-works sales price which does not include insurance and freight costs. This is the price at the gate of the producer-exporter’s works. It follows that the information supplied by the sampled independent importers, including the applicant, which is included in recital 111 in the preamble to the contested regulation, was not used in the context of establishing whether dumping had occurred, but in the context of calculating price undercutting, and thus in the context of evaluating the injury suffered by the European Union industry. Moreover, that conclusion is supported by the fact that that recital is included under the headings ‘D. Injury’ and ‘3. Price undercutting’.
40 The information at issue also cannot be considered to have been used to calculate the anti-dumping duty itself, since the latter was established on the basis of dumping margins and not on injury margins, as is apparent from recital 198 in the preamble to the contested regulation.
41 In any event, in the first place, the case-law cited in paragraphs 25 and 26 above states that associated importers whose retail prices were used to calculate the anti-dumping duty itself may be individually differentiated with regard to an anti-dumping regulation. However, first, the applicant cannot be treated in the same was as an associated importer and, second, it is not its retail prices which were used by the institutions, but its costs incurred at the level of a European Union port for the importation, transport and storage prior to resale.
42 In the second place, even if the view were to be taken that the information referred to in the last sentence of recital 111 in the preamble to the contested regulation had, by reason of Article 9(4) of the basic regulation, an indirect influence on the establishment of the rate of anti-dumping duty, in the sense that the institutions had had recourse to dumping margins to establish it because the price undercutting margins were higher, it is clear that the use by the institutions of the information provided by the sampled independent importers, as the costs after importation (costs incurred at the level of a European Union port for the importation, transport and storage before resale by the importers) must be understood only in the more general context of the latters’ participation in the administrative procedure leading to the adoption of the contested regulation, and not as a circumstance which individually differentiates them with regard to the contested regulation (see, by analogy, Würth and Fasteners (Shenyang) v Council, cited in paragraph 23 above, paragraph 32).
43 For the remainder, the information provided by the independent importers, including the applicant, was used only in the context of the evaluation of the European Union interest in establishing anti-dumping duties. It is settled case-law that, although participation by an undertaking in an anti-dumping proceeding may be taken into account, amongst other factors, in order to establish whether that undertaking is individually concerned by the regulation introducing anti-dumping duties adopted at the conclusion of that proceeding, if there are no other factors giving rise to a particular situation which distinguishes that undertaking from all other traders, with respect to the measure in question, such participation does not, of itself, confer on the undertaking a right to bring a direct action against that regulation (see Würth and Fasteners (Shenyang) v Council, cited in paragraph 23 above, paragraph 34 and the case-law cited).
44 Nor is it possible to accept the applicant’s argument, based on Advocate General Jacob’s Opinion in Extramet Industrie v Council, cited in paragraph 22 above, point 66, according to which any undertaking whose participation in the procedure before the Commission may be considered to have affected the result of that procedure ought to be entitled to bring an action against the anti-dumping regulation at issue. It is important to note that neither the Court of Justice in Extramet Industrie v Council, cited in paragraph 22 above, nor the General Court in its case-law subsequent to that judgment has maintained that criterion for the purposes of assessing locus standi.
45 Secondly, as regards the question whether the applicant may be considered to be individually concerned, in regard to the contested regulation, by reason of certain attributes which are peculiar to it and which differentiate it from all other persons, within the terms of Extramet Industrie v Council, cited in paragraph 22 above, it must be borne in mind that neither that judgment nor the judgment in BSC Footwear Supplies and Others v Council, cited in paragraph 22 above, drew up an exhaustive list of criteria to which the situation of independent importers must correspond. It is therefore possible that other factors might, to that end, be taken into consideration by the European Union Courts.
46 However, the facts alleged by the applicant are not sufficient for it to be regarded as being individually concerned within the terms of Extramet Industrie v Council, cited in paragraph 22 above. In this regard, it must be borne in mind that the action in the case which gave rise to the judgment in Extramet Industrie v Council, cited in paragraph 22 above, was declared admissible because of the particular situation in which the applicant found itself, particularly because of the fact that it was the largest importer and the end-user of the product forming the subject-matter of the anti-dumping measure and that there was a limited number of producers of the product concerned and one single European Union producer, with regard to which it encountered difficulties in obtaining supplies (Extramet Industrie v Council, cited in paragraph 22 above, paragraph 17).
47 Bricmate’s situation, however, is not in any way similar to that of the applicant in the case which gave rise to the judgment in Extramet Industrie v Council, cited in paragraph 22 above.
48 At the outset, it must be stated that the applicant is neither the largest importer nor the end-user of the products at issue.
49 Next, as regards its alleged dependence on imports of the products at issue from China, the applicant put forward an argument based on the percentage of its turnover, represented by the sale of ceramic tiles, and on the proportion which those imports represent. However, it did not state to what extent that situation, even if it is regarded as having been substantiated to the requisite legal standard, would be sufficient to differentiate it from all other traders importing the products at issue. The possibility that other European Union importers may import quantities comparable to those stated by the applicant, or even larger quantities in terms of turnover, is in no way discounted.
50 The applicant also relied on two refusals to supply following requests made to a Brazilian producer and to a European Union producer. If it is assumed that these have been established, those refusals to supply, in the light of their small number, cannot, in view of the very large number of producers both within the European Union and in non-member countries, constitute evidence that it was impossible for the applicant to obtain supplies of the products at issue, in terms of quantity and quality, in the packaging and with the marking requested, on other markets, or even consistent evidence establishing an overall trend to that effect.
51 Furthermore, the applicant has not shown that its relatively small size, even if assumed to have been established, had to be considered to be a factor liable to create dependency with regard to the Chinese manufacturers. In particular, the applicant has not established in any way that the lower level of orders placed with Chinese manufacturers by a relatively small importer, such as itself, in comparison with the level of orders placed with those manufacturers by larger importers cannot be met by the equally limited offer of one or more manufacturers of the product at issue on markets other than the Chinese market.
52 Furthermore, contrary to what the applicant claims, recital 145 in the preamble to the provisional regulation did not recognise that the applicant would be unable to obtain supplies on markets other than the Chinese market. It merely repeated the applicant’s arguments, presented during the administrative proceedings, whilst adding that, according to other importers, supplies from suppliers on other markets ought to be possible. In addition, recital 146 in the preamble to that regulation, quoted by the Council, concludes that ‘the imposition of measures would not hamper Union importers from buying similar products from other sources’.
53 Consequently, the applicant has not demonstrated that it was dependent on imports of the products at issue from China.
54 It necessarily follows that the applicant is also not justified in claiming that the imposition of the anti-dumping duties at issue, which concern only the imports of the products at issue from China, necessarily had serious consequences for its economic activities.
55 In any event, the evidence provided by the applicant does not allow the conclusion to be drawn that the economic consequences suffered by it would be so much more significant, or even different, that those with which other importers were faced that they could be considered to constitute a factor indicating that the applicant was individually affected by the contested regulation. The case-law has already stated in this regard that the fact that certain operators are more affected, in economic terms, by a measure than their competitors is not sufficient for them to be regarded as being individually concerned by that measure (order of 13 November 2008 in Case T-301/06 Lemaître Sécurité v Commission, not published in the ECR, paragraph 24).
56 It is also important to state, as the Council, the Commission and Cerame-Unie and Others have correctly done, first, that the increased price of the products at issue is merely a typical consequence of any regulation establishing definitive anti-dumping duties, burdening in the same way all importers which specialise in the importation and resale of ceramic tiles, such as the applicant, and, second, that it is also normal that the sales of imported products, forming the subject-matter of an anti-dumping investigation, increase substantially prior to the imposition of duties, since consumers anticipate that the prices of those products may increase, but that such growth decreases after those duties have been imposed, as in the applicant’s case, or is even reversed, since demand has already been saturated. It has therefore not been shown that the level of sales will become permanently established in the future at a level that is lower than that prior to the introduction of the anti-dumping duties in dispute.
57 Furthermore, the applicant’s allegation that the imposition of anti-dumping duties in excess of 30.6% would involve, and already involves, a decrease in the growth of sales is not supported by evidence relating to the causal link between that decrease in sales and the imposition of those duties. A decrease in growth may be linked to a variety of factors, such as the current economic crisis, for example, which involves a decrease in spending by households and undertakings. The applicant’s argument to that effect is therefore unfounded.
58 It follows that the applicant has not shown that the imposition of anti-dumping duties at issue would have serious consequences for its economic activities such as to differentiate it, with regard to the contested regulation, from all other persons within the terms of the judgment in Extramet Industrie v Council, cited in paragraph 22 above.
59 It follows from paragraphs 46 to 58 above that the applicant has not been able to establish other factors constituting a situation which is peculiar to it and which is capable of differentiating it, as regards the measures in question, from all other traders.
60 It follows from the all of the foregoing that the applicant is not individually concerned by the contested regulation.
The second part, alleging the existence of implementing measures for the contested regulation
61 The Council and the interveners contend, in essence, that the contested regulation entails implementing measures which the applicant may challenge before the national authorities.
62 The applicant claims that the contested regulation imposes immediate legal obligations on importers, without the need for any implementing measures either at European-Union or Member-State level and without the Member-State authorities having any discretion in the implementation of the contested regulation.
63 As regards, more specifically, tax notices and decisions ordering the release of goods, the applicant expresses the view that these cannot be considered to be measures implementing anti-dumping regulations. The applicant argues that it follows from Article 201 of the Community Customs Code that the customs debt is incurred by the applicant when it declares imports from China in accordance with the codes referred to in Article 1 of the contested regulation. In practice, the customs clearance activities are normally carried out entirely by the importer or the customs agent, which acts as the latter’s representative. If the tariff code declared is subject to anti-dumping duty, it is then up to the importer or the customs agent to calculate it and to declare the amount. This gives rise to a ‘tax order’, which is communicated to the importer. However, at that stage, there is normally no physical inspection carried out by the customs agents in order to check the accuracy of the data. Consequently, no ‘act’ is adopted by the customs authorities which is capable of being regarded as a measure ‘implementing’ the customs debt for anti-dumping duties. Therefore, a tax order is only a means of communicating the debt; it does not give rise to that debt.
64 In that regard, in addition to the possibilities for actions for annulment against European Union measures already available to natural persons under the fourth paragraph of Article 230 EC, the fourth paragraph of Article 263 TFEU also provides that ‘[a]ny natural or legal person may, under the conditions laid down in the first and second paragraphs, institute proceedings against … a regulatory act which is of direct concern to them and does not entail implementing measures’ (see, to that effect, judgment in Case C‑583/11 P Inuit Tapiriit Kanatami and Others v Parliament and Council [2013] ECR, paragraphs 55 and 57).
65 First of all, it must be observed that the contested regulation, which was adopted by the Council on the basis of Article 9 of the basic regulation, is a regulatory act for the purposes of the fourth paragraph of Article 263 TFEU. The contested regulation is of general application in that it applies to objectively determined situations and produces legal effects with respect to categories of persons envisaged in general and in the abstract (see also paragraph 23 above). Furthermore, the contested regulation is not a legislative act since it was not adopted in accordance with either the ordinary legislative procedure or the special legislative procedure within the meaning of paragraphs 1 to 3 of Article 289 TFEU (see, to that effect, order of 5 February 2013 in Case T‑551/11 BSI v Council, not published in the ECR, paragraph 43 and the case-law cited).
66 The existence of implementing measures for the contested regulation, under the fourth paragraph of Article 263 TFEU, must be examined in the light of the objective which it pursues, namely to enable natural and legal persons to bring an action against acts of general application which are not legislative acts, which are of direct concern to them and which do not entail implementing measures, thereby avoiding a situation in which such a person would have to break the law in order to have access to justice (see the Opinion of Advocate General Kokott in Case C‑274/12 P Telefónica v Commission [2013] ECR, points 39 to 41, and order in Case T‑381/11 Eurofer v Commission [2012] ECR, paragraph 60).
67 It is therefore necessary to examine whether the European Union regulatory act is implemented by another act which is capable of forming the subject-matter of an action by the person to whom it is addressed either before the General Court or before the courts and tribunals of the Member States, since it is clear that recovery measures and measures determining recovery satisfy that condition (see, to that effect, Case T‑221/10 Iberdrola v Commission [2012] ECR, paragraph 46, and order in BSI v Council, cited in paragraph 65 above, paragraph 58).
68 In the present case it is common ground that, pursuant to Article 14(1) of the basic regulation, the anti-dumping duty imposed by Article 1 of the contested regulation is levied by the Member States’ customs authorities on imports of the products at issue from the time at which the latter regulation entered into force (see, to that effect, Joined Cases T‑74/97 and T‑75/97 Büchel v Council and Commission [2000] ECR II‑3067, paragraph 50 and the case-law cited).
69 According to Article 62 et seq. of the Community Customs Code, imported goods require a customs declaration. In that context, the role of the customs authorities is limited to a possible check of the documentation and of the imported goods and, in particular, to acceptance or rejection of that customs declaration (order in BSI v Council, cited in paragraph 65 above, paragraph 47).
70 Under Article 217(1) of the Community Customs Code, ‘[e]ach and every amount of import duty … resulting from a customs debt, hereinafter called “amount of duty”, shall be calculated by the customs authorities as soon as they have the necessary particulars’.
71 In accordance with Article 221(1) of the Community Customs Code, as soon as it has been entered in the accounts, the amount of duty is to be communicated to the debtor in accordance with appropriate procedures, that is to say, drawn up by the national authorities. That communication therefore constitutes, from the point of view of the debtor, a measure for implementation of the contested regulation, taken in regard to that debtor by the national authorities. Such a measure for implementation of an anti-dumping regulation, such as that challenged in the present case, exists even in the case where the amount of duty entered in the customs declaration corresponds to the amount determined by the customs authorities. Pursuant to the second subparagraph of Article 221(2) of the Community Customs Code, it is the ‘release of the goods by the customs authorities [which is to] be equivalent to communication to the debtor of the amount of duty entered in the accounts’ (see, to that effect, Iberdrola v Commission, cited in paragraph 67 above, paragraph 46; judgment of 12 September 2013 in Case T‑457/11 Valeo Vision v Commission, not published in the ECR, paragraph 76; and order in BSI v Council, cited in paragraph 65 above, paragraphs 49 and 58).
72 It must therefore be concluded from the foregoing that the customs system, as established by the Community Customs Code and in the context of which the contested regulation was adopted, provides that the collection of duties fixed by the latter regulation takes place in each case on the basis of the measures adopted by the national authorities (order in BSI v Council, cited in paragraph 65 above, paragraph 53).
73 As the Council and Commission correctly state, the applicant may, under Articles 243 to 246 of the Community Customs Code, and without having first to infringe the contested regulation, challenge such national measures for implementation of the regulation, and, in that context, plead that it is unlawful before the national courts, which may, prior to ruling, invoke the provisions of Article 267 TFEU (see, to that effect, order in Case T‑91/05 Sinara Handel v Council and Commission [2007] ECR II‑245). That conclusion is, furthermore, confirmed both by settled case-law, according to which any challenge to the existence of the customs debt comes within the exclusive competence of the national authorities, on the basis of Article 236 of the Community Customs Code, the decisions of which may be challenged before the national courts (see, to that effect, Case T‑195/97 Kia Motors Nederland and Broekman Motorships v Commission [1998] ECR II‑2907, paragraph 36, and judgment of 18 June 2012 in Case T‑159/09 Biofrescos v Commission, not published in the ECR, paragraph 11), and by the judgments of the Court of Justice, delivered in cases in which it ruled on requests for a preliminary ruling concerning assessments of the validity of various regulations establishing anti-dumping duties which formed the basis of the national implementing measures challenged before national courts (Case C‑16/90 Nölle [1991] ECR I‑5163; Case C‑26/96 Rotexchemie [1997] ECR I‑2817; Case C‑351/04 Ikea Wholesale [2007] ECR I‑7723; and Case C‑338/10 GLS [2012] ECR).
74 Furthermore, in order to assess whether the contested regulation entails implementing measures for the purposes of the fourth paragraph of Article 263 TFEU, the question as to whether or not that regulation allows a degree of discretion to the authorities responsible for its implementation is, contrary to the applicant’s submissions, irrelevant. Although lack of discretion is a criterion which must be examined in order to determine whether the condition that an applicant must be directly concerned has been satisfied, the requirement of an act which does not entail implementing measures, laid down in the fourth paragraph of Article 263 TFEU, constitutes a condition which is distinct from the condition of direct concern to the applicant (see order of 23 September 2008 in Case T‑195/07 Lafarge Cement v Commission, not published in the ECR, paragraph 22 and the case-law cited, and order in BSI v Council, cited in paragraph 65 above, paragraph 56). If those who drafted that provision had not wished to make the admissibility of the right of appeal of individuals against regulatory acts subject to a condition additional to that of direct concern, they would not have included a reference to the absence of implementing measures for those regulatory acts.
75 It follows that the contested regulation entails implementing measures according to the fourth paragraph of Article 263 TFEU.
76 The action must therefore be dismissed as being inadmissible.
Costs
77 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Council.
78 Furthermore, in accordance with the first subparagraph of Article 87(4) of the Rules of Procedure, the institutions which have intervened in the proceedings are to bear their own costs. Consequently the Commission, which intervened in support of the Council, must bear its own costs.
79 Finally, Cerame-Unie and Others must bear their own respective costs, in accordance with the third subparagraph of Article 87(4) of the Rules of Procedure.
On those grounds,
THE GENERAL COURT (Fifth Chamber)
hereby orders:
1. The action is dismissed as being inadmissible.
2. Bricmate AB shall bear its own costs and shall pay those incurred by the Council of the European Union.
3. The European Commission shall bear its own costs.
4. Cerame-Unie AISBL, Asociación Española de Fabricantes de Azulejos y Pavimentos Cerámicos (ASCER), Confindustria Ceramica, Casalgrande Padana SpA and Etruria Design Srl shall bear their own respective costs.
Luxembourg, 21 January 2014.