Case T‑385/11
BP Products North America Inc.
v
Council of the European Union
(Dumping — Subsidies — Imports of biodiesel originating in the United States — Circumvention — Article 13 of Regulation (EC) No 1225/2009 — Article 23 of Regulation (EC) No 597/2009 — Slightly modified like product — Legal certainty — Misuse of powers — Manifest errors of assessment — Duty to state reasons — Equal treatment — Principle of sound administration)
Summary — Judgment of the General Court (Fourth Chamber), 16 January 2014
1. Actions for annulment — Natural or legal persons — Measures of direct and individual concern to them — Absolute bar to proceeding — Implementing regulations extending an anti-dumping duty and countervailing duty — Manufacturing and exporting undertakings identified in the regulation or concerned by the preliminary investigations — Admissibility
(Art. 263, fourth para., TFEU; Council Regulations No 443/2011 and No 444/2011)
2. Judicial proceedings — Introduction of new pleas during the proceedings — Plea raised for the first time at the reply stage — Inadmissibility
(Rules of Procedure of the General Court, Art. 48(2))
3. Common commercial policy — Protection against dumping or subsidy by non-member countries — Establishment of an anti-dumping duty and countervailing duty — Avoidance — Implementing regulations extending the anti-dumping duty and the countervailing duty — Slightly modified like products — Concept — Discretion of the institutions — Judicial review — Limits
(Council Regulations No 597/2009, Art. 23(1) and (3)(a), and No 1225/2009, Art. 13(1))
4. Actions for annulment — Grounds — Misuse of powers — Concept
(Art. 263 TFEU)
5. Common commercial policy — Protection against dumping or subsidy by non-member countries — Establishment of an anti-dumping duty and a countervailing duty — Avoidance — Concept — Criteria for assessment
(Council Regulations No 597/2009, Art. 23(1) and (3)(a), and No 1225/2009, Art. 13(1))
6. Acts of the institutions — Statement of reasons — Obligation — Scope — Implementing regulations extending an anti-dumping duty and a countervailing duty
(Art. 296 TFEU; Council Regulations No 443/2011 and No 444/2011)
7. Common commercial policy — Protection against dumping or subsidy by non-member countries — Establishment of an anti-dumping duty and a countervailing duty — Avoidance — Implementing regulations extending an anti-dumping duty and a countervailing duty — Undertakings concerned not treated individually — No infringement of the principle of non-discrimination — No infringement of the principle of sound administration
(Council Regulations No 597/2009, Arts 20 and 23(1) and (3)(a), and No 1225/2009, Arts 11(4), and 13(1))
1. See the text of the decision.
(see paras 70-77)
2. See the text of the decision.
(see paras 91, 119)
3. As regards the extension of an anti-dumping or compensatory duty to imports of slightly modified like products originating in a country subject to the initial anti-dumping or anti-subsidy measures, as provided by Articles 23(1) of basic anti-dumping Regulation No 597/2009 and 13(1) of basic anti-dumping Regulation No 1225/2009, where those measures are circumvented, the EU institutions enjoy a wide discretion in the determination of what may be regarded as a slightly modified like product and review by the EU judicature is confined to ascertaining whether the procedural rules have been complied with, whether the facts on which the contested decision is based have been accurately stated and whether there has been any manifest error of assessment of the facts or any misuse of powers.
In particular, products which have the same essential characteristics as those products covered by the basic regulation are regarded as slightly modified like products.
In that respect, the commercial classifications that the industry confers on the products at issue and those which arise from the Combined Nomenclature are of a formal nature and do not necessarily mean that the products which are subject to those various classifications do not have the same essential characteristics for the purposes of those provisions.
Moreover, the provisions of the basic anti-dumping and anti-subsidies regulation concerning circumvention proceedings do not require it to be demonstrated that the slightly modified like products, within the meaning of those provisions, have been specifically created so as to avoid paying duties.
(see paras 92, 100, 110, 126)
4. See the text of the decision.
(see para. 120)
5. Article 13(1) of basic anti-dumping Regulation No 1225/2009 and Article 23(1) and (3)(a) of basic anti-subsidies Regulation No 597/2009 do not lay down any additional criterion for determining the existence of a circumvention by requiring that the modified product, once imported, become once again the product concerned. The practice of circumvention covered by those provisions differs from that covered by Article 13(2) of the basic anti-dumping regulation.
Moreover, those provisions do not require, in order to establish the existence of a change in the pattern of trade, that the undertakings targeted by a circumvention proceeding have previously imported the products concerned by the initial duties. Such a condition would considerably and unjustifiably restrict the scope of circumvention proceedings. Those proceedings are intended to protect European Union industry against certain imports, irrespective of the identity of the undertakings involved in those imports. Thus, in order to establish the existence of a change in the pattern of trade, it is sufficient that the institutions find the emergence of imports of the substitute product to the detriment of imports of the products affected by the initial duties, irrespective of whether or not the new imports were carried out by undertakings already affected by the initial duties.
(see paras 136, 141, 142)
6. See the text of the decision.
(see paras 157, 159-166)
7. See the text of the decision.
(see paras 172-174, 176-178)