Case C‑349/16
T.KUP SAS
v
Belgische Staat
(Request for a preliminary rulingfrom the Nederlandstalige rechtbank van eerste aanleg Brussel)
(Reference for a preliminary ruling — Dumping — Regulation (EC) No 1472/2006 — Imports of certain footwear with uppers of leather originating in China and Vietnam — Validity of Implementing Regulation (EU) No 1294/2009 — Expiry review of anti-dumping measures — Unrelated importers — Sampling — European Union interest)
Summary — Judgment of the Court (Eighth Chamber), 15 June 2017
Questions referred for a preliminary ruling—Assessment of validity—Admissibility—Need to provide the Court with the reasons justifying the need for an answer to the questions referred for a preliminary ruling
(Art. 267 TFEU; Statute of the Court of Justice, Art. 23; Rules of Procedure of the Court of Justice, Art. 94(c))
Common commercial policy—Protection against dumping—Expiry review procedure—Investigation—Sampling—Sample composition—Discretion of the Commission—Judicial review
(Council Regulation No 384/96, Arts 6 (8), 11 (2) and (5), 17 (1); Council Regulation No 1294/2002)
Common commercial policy—Protection against dumping—Expiry review procedure—Assessment of the Union interest—Need for a new balancing of the various relevant interests—Consideration of the positions of the parties concerned—Burden of proof
(Council Regulation No 384/96, Art. 21(1), (2), (3) and (7))
See the text of the decision.
(see paras 16-18)
In that regard, it should be noted that, in accordance with Article 17(1) of the Basic Anti-Dumping Regulation, in cases where the number of complainants, exporters or importers, of types of product or transactions is large, the composition of a sample is likely to be determined according to two alternative methods. The investigation may be limited to a reasonable number of parties, products or transactions by using samples which are statistically representative on the basis of information available at the time of the selection. It may however, at the discretion of the institutions, also be limited to the largest volume of production, sales or exports which can reasonably be investigated within the time available.
It follows that, where they select the second sampling method, the institutions of the Union have some discretion, relating to the prospective assessment of what it is reasonably possible for them to accomplish in the conduct of their investigation within the prescribed time-limit.
The reviews must, in accordance with Article 11(5) of the Basic Anti-Dumping Regulation, be carried out expeditiously and normally be concluded within 12 months of the date of their initiation, stating that the institutions are also required, under Article 6(8) of the Basic Anti-Dumping Regulation, to examine for accuracy as far as possible the information provided by the parties and upon which their findings are based.
It should be noted, moreover, that the Court has already held that the institutions enjoyed a broad discretion in the choice of sampling (see, to that effect, judgment of 10 September 2015, Fliesen-Zentrum Deutschland, C‑687/13, EU:C:2015:573, paragraph 93), so that the EU Courts must, in the context of their review, restrict themselves to verifying that that choice is not based on incorrectly established facts or vitiated by a manifest error of appraisal.
(see paras 27, 30-32)
It should be noted, next, that Article 21(1) of the Basic Anti-Dumping Regulation requires the institutions of the Union, which are called upon to determine whether it is in the Union interest to adopt or to extend anti-dumping measures, to appreciate all the interests at stake taken as a whole, including the interests of the Union industry and users and consumers, paying particular attention to the need to eliminate the trade distorting effects of injurious dumping and to restore effective competition. Such a determination may be made only if all the parties have been given the opportunity to make their views known pursuant to Article 21(2) thereof.
Article 21(2) of the Basic Anti-Dumping Regulation thus provides for the right of various parties, including importers, first, to make their views known and to submit information to the Commission and, secondly, to present observations on the information submitted by the other parties. Article 21(3) of that regulation provides also for the right of all the parties, at their request, to be heard by the Commission, under certain conditions.
The examination of the Union interest in the adoption or maintenance of an anti-dumping measure thus constitutes a very strict procedural operation which requires a balancing of the interests of all the parties and the assessment of complex economic situations implying a limited review by the European Union judicature.
It should, however, be noted in that regard that, although the institutions must take all the different interests into account, by ensuring that the parties had the possibility to express their point of view, it is for those parties to adduce evidence in support of their claims. Article 21(7) of the Basic Anti-Dumping Regulation provides thus that information is only to be taken into account where it is supported by actual evidence which substantiates its validity.
(see paras 42-44, 47)