Case T‑469/07

Philips Lighting Poland S.A.

and

Philips Lighting BV

v

Council of the European Union

(Dumping — Imports of integrated electronic compact fluorescent lamps (CFL‑i) originating in China, Vietnam, Pakistan and the Philippines — Expiry of anti-dumping measures — Review — Articles 4(1), 5(4) and 9(1) of Regulation (EC) No 384/96 (now Articles 4(1), 5(4), and 9(1) of Regulation (EC) No 1225/2009) — Concept of Community industry — Determination of injury — Duty to state reasons)

Summary — Judgment of the General Court (Fifth Chamber), 11 July 2013

1.      Actions for annulment — Admissibility — Dismissal of an action on the merits without first ruling on admissibility — Discretion of the EU judicature

2.      Common commercial policy — Protection against dumping — Review procedure — Investigation of the review — Decision to terminate the procedure — No obligation on the Commission to terminate the procedure once the level of support for the complaint falls below the minimum threshold of 50% of Community production

(Council Regulation No 384/96, Arts 5(4), 9(1), and 11(5), and No 1225/2009, Arts 5(4), 9(1), and 11(5))

3.      Common commercial policy — Protection against dumping — Injury — Scope of the Community industry — Discretion of the Commission — Definition of the Community industry supporting a complaint or a request during the review investigation — Collective output of producers constituting a major proportion — Reference to the minimum threshold of 25% — Lawfulness

(Council Regulations No 384/96, Arts 4(1), 5(4), and 9(1), and No 1225/2009, Arts 4(1), 5(4), and 9(1))

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

(Art. 296 TFEU)

1.      The Courts of the European Union are entitled to assess, according to the circumstances of each case, whether the proper administration of justice justifies the dismissal of the action on the merits without first ruling on its admissibility.

(see para. 61)

2.      Article 5(4) of the basic anti-dumping Regulation No 384/96 (now Article 5(4) of Regulation No 1225/2009), does not place any obligation on the Commission to terminate an anti-dumping proceeding in progress where the level of support for the complaint falls below a minimum threshold of 25% of Community production. That article concerns only the degree of support for the complaint necessary for the Commission to be able to initiate a proceeding. Under Article 9(1) of the said regulation (now Article 9(1) of Regulation No 1225/2009), the Commission is not under an obligation to terminate a procedure when a complaint is withdrawn. That must apply a fortiori when the degree of support for a complaint merely falls. Since Articles 5(4) and 9(1) of the basic regulation are applicable to review procedures, pursuant to Article 11(5) of that regulation (now Article 11(5) of Regulation No 1225/2009), the above principles also apply where the level of support for the request for a review falls below the threshold of 50% of Community production in the course of the review investigation. The institutions are thus perfectly entitled to continue the review procedure notwithstanding the fact that it was possible that the 50% threshold referred to in Article 5(4) of the basic regulation was no longer met.

Moreover, Article 9(1) of the basic regulation expressly obliges the institutions to take account of the Community interest only if they envisage terminating the procedure further to the withdrawal of the complaint.

(see paras 84-87)

3.      Article 4(1) of basic anti-dumping Regulation No 384/96 (now Article 4(1) of Regulation No 1225/2009) defines the term ‘Community industry’ as either ‘the Community producers as a whole of the like products’ or as ‘those of them whose collective output of the products constitutes a major proportion, as defined in Article 5(4) of that regulation (now Article 5(4) of Regulation No 1225/2009), of the total Community production of those like products’, it being understood that, in both cases, producers coming within the situations provided for in Article 4(1)(a) of the basic regulation may be excluded from the Community production. The institutions have a broad discretion when choosing between the two options.

Moreover, the Community industry used for the purposes of determining injury does not necessarily have to comprise the same Community producers as those making up the Community industry taken into account in order to ascertain whether the original complaint or the request for a review enjoyed sufficient support in accordance with Article 5(4) of the basic regulation. Firstly, in the latter case, the Community industry may, in the light of the wording of Article 5(4), comprise only the Community producers supporting the complaint or request for a review, whereas, in the former case, the definition may include all Community producers, regardless of whether they have expressed such support. Secondly, the definition of the Community industry for the purposes of determining injury is carried out by the institutions after the procedure has been initiated.

If, during the course of the procedure, a Community producer which at the outset supported the complaint or request for review withdraws that support or refrains from cooperating with the Commission, such a producer will not be included in the Community industry for the purposes of determining injury if the institutions decide to define that industry by using the second option provided for in Article 4(1) of the basic regulation.

The possible situations covered, expressly or by implication, in Article 9(1) of the basic regulation (now Article 9(1) of Regulation No 1225/2009) presuppose, by definition, that the 50% threshold laid down in Article 5(4) of that regulation is no longer met. When, therefore, in the exercise of their broad discretion, the institutions choose to define the Community industry using the second option in Article 4(1) of the basic regulation, the reference in that provision to Article 5(4) of the basic regulation in general as regards the expression ‘a major proportion … of the total Community production’ may only be construed as referring to the minimum threshold of 25%, and not to the 50% threshold. Such an approach is all the more necessary because the requirement that the Community industry must constitute a major proportion of the total Community production aims at ensuring that the collective output of the producers included in that industry is sufficiently representative.

(see paras 92-95)

4.      See the text of the decision.

(see paras 105-107, 109, 111-113)