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Introduction

  1. The present request for a preliminary ruling concerns the interpretation of Article 15(2) of Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (2) (‘the basic regulation’), Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’), and the validity of Council Implementing Regulation (EU) No 723/2011 of 18 July 2011 extending the definitive anti-dumping duty imposed by Regulation (EC) No 91/2009 on imports of certain iron or steel fasteners originating in the People’s Republic of China to imports of certain iron or steel fasteners consigned from Malaysia, whether declared as originating in Malaysia or not. (3) In particular, the critical question which arises from this reference is whether non-observance of certain procedural safeguards provided for by Article 15(2) of the basic regulation can lead to the annulment of the implementing regulation.
  2. The request was made in proceedings between Eurobolt BV and the Staatssecretaris van Financiën (Secretary of State for Finance, Netherlands) concerning the imposition of anti-dumping duties for the import of certain iron or steel fasteners into the European Union.

Conclusion

Accordingly, I propose that the Court should answer the questions referred by the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) as follows:

1a. Article 47 of the Charter of Fundamental Rights of the European Union, read in conjunction with Article 4(3) TEU, must be interpreted as meaning that the grounds of review cited by Article 263 TFEU may be used to plead invalidity of the European Union act at issue before a national court with a view to provoking a preliminary reference to the Court of Justice.

1b. It is for the applicant invoking the illegality of an EU act to demonstrate, first, the probability of their allegation and to provide all the information at their disposal. However, if a national court needs information that only EU institutions can provide, the principle of loyal cooperation laid down in Article 4(3) TEU requires EU institutions, when requested to do so by the national court, to provide that information as soon as possible, unless refusal to provide such information is justified by overriding reasons relating to the need to avoid any interference with the functioning and independence of the Union or to safeguard its interests.

1c. The national judge reviewing the legality is allowed to verify whether procedural rules have been complied with, whether the facts on which the contested decision is based have been accurately stated and also whether the competent institution has taken into account all the relevant facts. The judge reviewing the legality is also allowed to verify whether there is a manifest error in the appraisal of the conditions of Article 13 of the Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community.

2a. The term ‘all relevant information’ in Article 15(2) of Regulation No 1225/2009 must be interpreted as including the observations submitted by interested parties in response to the Commission’s findings on the investigation.

2b. The requirements laid down by Article 15(2) of Regulation No 1225/2009 are essential procedural requirements governing the proper conduct of proceedings. Therefore, an importer can plead infringement of Article 15(2) of Regulation No 1225/2009 if the response submitted by him was not made available to the Advisory Committee at least 10 working days prior to the meeting.

2c. The adoption of anti-dumping measures in breach of the time limit provided for by Article 15(2) of Regulation No 1225/2009 renders the act at issue void.

3. Council Implementing Regulation (EU) No 723/2011 of 18 July 2011 extending the definitive anti-dumping duty imposed by Regulation (EC) No 91/2009 on imports of certain iron or steel fasteners originating in the People’s Republic of China to imports of certain iron or steel fasteners consigned from Malaysia, whether declared as originating in Malaysia or not is invalid.