Case C-422/02 P
Europe Chemi-Con (Deutschland) GmbH
v
Council of the European Union
(Appeal – Anti-dumping measures – Regulation terminating anti-dumping proceedings – Retroactivity – Equal treatment – Non-discrimination – Imports of certain large aluminium electrolytic capacitors from Japan)
Opinion of Advocate General Jacobs delivered on 29 April 2004
Judgment of the Court (First Chamber), 27 January 2005
Summary of the Judgment
Common commercial policy – Protection against dumping – Principle of equal treatment of imports from different countries – Scope as regards products from different countries all subject to dumping but some subject to a procedure for review of a definitive duty and others to an initial investigation
(Council Regulation No 384/96, Arts 5, 9 (5), and 11 (2))
There is an objective difference between the initial investigation procedure intended to establish whether there is a practice of dumping and the procedure for review of an anti-dumping measure which is about to expire. Whereas imports subject to a review proceeding are those on which definitive anti-dumping duties have already been imposed and in respect of which sufficient evidence has generally been adduced to establish that the expiry of those measures would probably result in the continuation or recurrence of dumping and injury, where imports are subject to an initial investigation, the purpose of that investigation is precisely to determine the existence, the degree and the effect of any alleged dumping even if the initiation of such an investigation presupposes the existence of sufficient evidence to justify the initiation of that procedure.
It follows that the collection of anti-dumping duty until the conclusion of the review procedure to which it is subject, although no duty of that type is collected during the same period on comparable products originating in a country for which an initial investigation is conducted, does not constitute an infringement of the principle of equal treatment.
Moreover, the Council is not obliged to refrain from applying Article 11(2) of the basic anti-dumping regulation No 384/96, providing for the continued collection of anti-dumping duty pending the outcome of the review, under the principle of non-discrimination set out in Article 9(5) of that regulation. The principle laid down by that provision does not require the Council, where it decides to terminate a review proceeding on the ground that no definitive anti-dumping duty was imposed on imports in a comparable situation to those subject to review but coming from other sources and having been subject to an initial investigation, to restore absolute equality of treatment as regards the collection of import duty on imports in those different situations.
(see paras 50-52)
JUDGMENT OF THE COURT (First Chamber)27 January 2005(1)
(Appeal – Anti-dumping measures – Regulation terminating anti-dumping proceedings – Retroactivity – Equal treatment – Non-discrimination – Imports of certain large aluminium electrolytic capacitors from Japan)
In Case C-422/02 P,
applicant,
defendant at first instance,
intervener at first instance,
THE COURT (First Chamber),,
after hearing the Opinion of the Advocate General at the sitting on 29 April 2004,
gives the following