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Language of document : ECLI:EU:T:2013:571

Case T‑512/09

Rusal Armenal ZAO

Council of the European Union

(Dumping — Imports of certain aluminium foil originating in Armenia, Brazil and China — Accession of Armenia to the WTO — Market economy treatment — Article 2(7) of Regulation (EC) No 384/96 — Whether compatible with the Anti-Dumping Agreement — Article 277 TFEU)

Summary — Judgment of the General Court (Second Chamber, Extended Composition), 5 November 2013

1. International agreements — Agreement establishing the World Trade Organisation — 1994 GATT — Not possible to invoke WTO agreements to challenge the legality of an EU measure — Exceptions — EU measure intended to ensure its implementation or referring thereto expressly and precisely

(Art. 263, first para., TFEU; General Agreement on Tariffs and Trade 1994; Council Regulation No 384/96)

2. Common commercial policy — Protection against dumping — Dumping margin — Determination of the normal value — Imports from another member of the WTO — Obligation on the importing country to apply rules compatible with Articles 2.1 and 2.2 of the Anti-Dumping Agreement — Exceptions — Article 2.7 of that agreement and paragraph 1 of Article VI of the 1994 GATT — Provisions contained in the instruments of accession to the WTO of the exporting country

(General Agreement on Tariffs and Trade 1994, Art. VI.1; Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994, Arts 2.1, 2.2 and 2.7; Council Regulation No 384/96, Art. 2(7))

3. Common commercial policy — Protection against dumping — Dumping margin — Determination of the normal value — Imports from non-market economy countries — List of countries regarded as non-market economy countries appearing in the footnote to Article 2(7)(a) of Regulation No 384/96 — Country having joined the WTO and still appearing on that list — Non-application of the market economy third country methodology

(Art. 277 TFEU; General Agreement on Tariffs and Trade 1994, Art. VI.1; Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994, Arts 2.1 and 2.2; Council Regulation No 384/96, Art. 2)

1. See the text of the decision.

(see para. 36)

2. The rules laid down in Article 2.1 and 2.2 of the Agreement on the Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (‘the Anti-Dumping Agreement’) concerning normal value, which implement the provisions of paragraph 1 of Article VI of the GATT are applicable unless exceptions to those rules are laid down in the Anti-Dumping Agreement itself, in the GATT, such as the second supplementary provision to paragraph 1 of Article VI of the GATT, or in the instruments of accession to the WTO of a member of that organisation. Consequently, a WTO member is, from the perspective of Article VI of the GATT and the Anti-Dumping Agreement, entitled to apply to imports from another WTO member a method for calculating normal value different from the methods laid down in Article 2.1 and 2.2 of the Anti-Dumping Agreement only on the basis of Article 2.7 of that agreement and, consequently, under the second supplementary provision to paragraph 1 of Article VI of the GATT or, as the case may be, under a particular provision to that effect in the instruments of accession of that other WTO member.

In those circumstances, Article 2(7) of the basic anti-dumping regulation No 384/96 does not allow the institutions, without infringing the Anti-Dumping Agreement, not to apply rules for calculating normal value compatible with Article 2.1 and 2.2 of that agreement even when the second supplementary provision to paragraph 1 of Article VI of the GATT does not apply and when the instruments of accession to the WTO of the exporting country do not provide for such possibility. The obligation arising from those agreements consists in applying, in respect of other WTO members, rules compatible with Article 2.1 and 2.2 of the Anti-Dumping Agreement, subject to the above reservations. In that regard, those articles comprise a set of clear, precise and detailed rules laying down the procedure for calculating the normal value of the like product and do not attach to those rules conditions making their application subject to the discretion of the WTO members. In addition, the possibility of derogating from those rules on the basis of the second supplementary provision to paragraph 1 of Article VI of the GATT, to which Article 2.7 of the Anti-Dumping Agreement refers, is delimited precisely. In particular, countries which have a complete or substantially complete monopoly of their trade and where all domestic prices are fixed by the State fall within the scope of that provision. Consequently, that legal rule is clear as to the extent of the situations which it covers, so as to allow both the Commission and the Council to assess whether a WTO member meets the relevant description and the Courts of the European Union to review that assessment and, where relevant, draw the necessary conclusions in accordance with the case-law.

In that context, when the EU legislature adopts provisions on non-market economy countries which are applicable to a WTO member included on a list of such countries, such as the list in the footnote accompanying Article 2(7)(a) of the basic regulation, its action engages the second supplementary provision to paragraph 1 of Article VI of the GATT, and requires therefore an assessment of whether that WTO member satisfies the conditions laid down by that provision.

(see paras 48-50, 52)

3. After the Republic of Armenia acceded to the WTO, its inclusion in the list in the footnote accompanying Article 2(7)(a) of basic anti-dumping regulation No 384/96 was no longer compatible with the system of rules laid down by Article 2.1 and 2.2 of the Anti-Dumping Agreement and the second supplementary provision to paragraph 1 of Article VI of the GATT, to the extent that such inclusion has the effect of making the application of Article 2(1) to (6) of the basic regulation conditional upon a successful claim by the undertaking concerned for market economy treatment and, if that claim is rejected, requires the market economy third country methodology to be applied. Thus, in the absence of evidence establishing that Armenia satisfies the criteria laid down by the second supplementary provision to paragraph 1 of Article VI of the GATT, and having regard to the fact that Armenia does not satisfy the conditions of that provision, the reference to Armenia in the footnote accompanying Article 2(7)(a) of the said regulation does not constitute a valid basis for applying the market economy third country methodology pursuant to Article 2(7)(a) and (b) of that regulation, and to that extent must be declared inapplicable pursuant to Article 277 TFEU.

(see paras 59, 60)