Key facts of the case:
Appeal – Dumping – Imports of tartaric acid originating in China – Appeal brought by an intervener at first instance – Second sentence of the second paragraph of Article 56 of the Statute of the Court of Justice of the European Union – Partial interim review – Loss of market economy treatment during the review procedure – Modification of the definitive anti-dumping duty – Determination of the normal value – Article 11(9) of Regulation (EC) No 1225/2009 – Cross-appeal – Action for annulment brought by competing producers established in the European Union – Admissibility – Direct concern – Allocation of powers to comply with a judgment.
Outcome of the case:
I therefore propose that the Court should:
– set aside the judgment of 3 May 2018, Distillerie Bonollo and Others v Council (T‑431/12, EU:T:2018:251);
– refer the case back to the General Court of the European Union;
– reserve the costs relating to the main appeal;
– uphold the cross-appeal in so far as it seeks to have the second paragraph of the operative part of the judgment of 3 May 2018, Distillerie Bonollo and Others v Council (T‑431/12, EU:T:2018:251) set aside to the extent that it provides for the Council of the European Union to take the measures necessary to comply with that judgment;
– dismiss the cross-appeal as to the remainder;
– order the European Commission to bear its own costs relating to the cross-appeal and to pay four-fifths of the costs incurred by Distillerie Bonollo SpA, Industria Chimica Valenzana (ICV) SpA, Distillerie Mazzari SpA and Caviro Distillerie Srl relating to the cross-appeal;
– order Distillerie Bonollo SpA, Industria Chimica Valenzana (ICV) SpA, Distillerie Mazzari SpA and Caviro Distillerie Srl to bear one-fifth of their own costs relating to the cross-appeal; and – order the Council of the European Union and Changmao Biochemical Engineering Co. Ltd to bear their own costs relating to the cross-appeal.
42) First, the Commission argues that the General Court could not invoke the right to effective judicial protection, as enshrined in Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’), in order to adopt a broad interpretation of the condition relating to direct concern. That interpretation, according to which that requirement is satisfied when the contested EU act has a material effect on the applicant’s situation, is also inconsistent with settled case-law, which requires a legal effect on the applicant’s situation. Second, the Commission contends that, for the regulation at issue to affect the legal situation of Distillerie Bonollo, it must confer on the latter a substantive right. However, the Commission argues that Distillerie Bonollo does not have a right to require that a certain level of anti-dumping measures be imposed on competing third-country producers, given that Article 21 of the basic regulation allows the Council and the Commission to refrain from imposing measures where this would not be in the interest of the Union.
114) Fifth, I am not persuaded by the argument of the Commission and the Council that, in paragraphs 92 and 93 of the judgment under appeal, the General Court erroneously invoked the right to effective judicial protection, as enshrined in Article 47 of the Charter, to ‘enlarge’ the condition relating to direct concern.
116) While Article 47 of the Charter is indeed not intended to change the system of judicial review laid down by the Treaties, and particularly the rules relating to the admissibility of direct actions brought before the Courts of the Union, ( 61 ) this is not, in my view, what the General Court did in paragraphs 92 and 93 of the judgment under appeal.
117) The General Court did not reach the conclusion that Distillerie Bonollo was directly concerned by the regulation at issue by invoking Article 47 of the Charter. That conclusion was based on other grounds, that is, on the circumstance, mentioned in paragraph 59 of the judgment under appeal, that Distillerie Bonollo triggered the partial interim review procedure and that the anti-dumping duties imposed by that regulation were intended to offset the injury it suffered as a competitor operating on the same market as the two Chinese exporting producers. Paragraphs 92 and 93 of that judgment merely support that conclusion, which the General Court had already reached.
142) The Commission alleges that the appeal is inadmissible on the same ground as that put forward by the Council. In any event, according to the Commission, the appeal is unfounded. This is because the wording of Article 11(9) of the basic regulation refers to the methodology used ‘in the [original] investigation’, not to the methodology used for a particular company. That provision cannot be applied on a company-by-company basis. Moreover, the legislative history of that provision supports a broad interpretation of the obligation to apply the same methodology in the review investigation. Finally, Article 11(9) of the basic regulation must be seen as an expression of the principle of equal treatment, now enshrined in Article 47 of the Charter. It follows that, in the regulation at issue, the normal value should be determined on the basis of domestic sales prices for all producers not granted MET, including the two Chinese exporting producers.