Roland v Commission (Dumping - Imports of footwear with uppers of leather originating in China and Vietnam - Judgment) [2021] EUECJ T-132/18 (09 June 2021)

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(Dumping – Imports of footwear with uppers of leather originating in China and Vietnam – Implementation of the judgment of the Court of Justice in Joined Cases C‑659/13 and C‑34/14 – Reimposition of a definitive anti-dumping duty and definitive collection of the provisional duty – Resumption of the proceeding which preceded the regulations declared invalid – Market economy treatment (MET) – Individual treatment (IT) – Desk analysis – Absence of a verification visit or a request for additional information – Non-reimbursement of anti-dumping duties – Legal basis – Legal certainty – Legitimate expectations – Non-retroactivity – Proportionality – Non-discrimination – Article 1 of Regulation (EC) No 384/96 (now Article 1 of Regulation (EU) 2016/1036) – Previous decision-making practice – Competence of national authorities and courts)

Roland SE, established in Essen (Germany), represented by S. De Knop, A. Willems and B. Natens, lawyers,

European Commission, represented by L. Armati and T. Maxian Rusche, acting as Agents,

ACTION under Article 263 TFEU for the annulment of Commission Implementing Regulation (EU) 2017/2232 of 4 December 2017 reimposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain footwear with uppers of leather originating in the People’s Republic of China and Vietnam and produced by certain exporting producers in the People’s Republic of China and Vietnam and implementing the judgment of the Court of Justice in Joined Cases C‑659/13 and C‑34/14 (OJ 2017 L 319, p. 30),

composed of A.M. Collins, President, V. Kreuschitz (Rapporteur) and G. De Baere, Judges,

having regard to the written part of the procedure and further to the hearing on 20 November 2020,

1 The applicant, Roland SE, is a retailer and importer of footwear, wholly controlled by Deichmann SE. It imports significant quantities of leather footwear into the European Union from third countries, including China and Vietnam.

2 On 23 March 2006, the Commission of the European Communities adopted Regulation (EC) No 553/2006 imposing a provisional anti-dumping duty on imports of certain footwear with uppers of leather originating in the People’s Republic of China and Vietnam (OJ 2006 L 98, p. 3).

3 On 5 October 2006, the Council of the European Union adopted Regulation (EC) No 1472/2006 imposing a definitive anti-dumping duty and collecting definitely the provisional duty imposed on imports of certain footwear with uppers of leather originating in the People’s Republic of China and Vietnam (OJ 2006 L 275, p. 1).

4 Article 1(3) of Regulation No 1472/2006 fixed the rate of that duty at 16.5% for footwear with uppers of leather (‘the products at issue’) manufactured by all companies established in China, with the exception of those manufactured by Golden Step, for which the rate was 9.7%, and at 10% for those manufactured by all companies established in Vietnam. Article 3 of that regulation provided that the regulation would enter into force on the day following its publication in the Official Journal of the European Union, which took place on 6 October 2006, and that it would remain in force for a period of two years, that is to say from 7 October 2006 until 6 October 2008.

5 On 29 April 2008, the Council extended that anti-dumping duty to imports consigned from the Macao Special Administrative Region (SAR), by adopting Regulation (EC) No 388/2008 extending the definitive anti-dumping measures imposed by Regulation No 1472/2006 on imports of certain footwear with uppers of leather originating in the People’s Republic of China to imports of the same product consigned from the Macao SAR, whether declared as originating in the Macao SAR or not (OJ 2008 L 117, p. 1).

6 On 22 December 2009, a prolonging regulation was adopted, namely Council Implementing Regulation (EU) No 1294/2009 imposing a definitive anti-dumping duty on imports of certain footwear with uppers of leather originating in Vietnam and originating in the People’s Republic of China, as extended to imports of certain footwear with uppers of leather consigned from the Macao SAR, whether declared as originating in the Macao SAR or not, following an expiry review pursuant to Article 11(2) of Council Regulation (EC) No 384/96 (OJ 2009 L 352, p. 1).

7 Article 1(3) and (4) of Implementing Regulation No 1294/2009 fixed the rate of that duty at 16.5% for the products at issue manufactured by all companies established in China, with the exception of Golden Step, and for those consigned from the Macao SAR, at 9.7% for the products at issue manufactured by Golden Step and at 10% for those manufactured by all companies established in Vietnam. Article 2 of that regulation provided that the regulation would enter into force on the day following that of its publication in the Official Journal of the European Union, which took place on 30 December 2009, and that it would be in force for a period of 15 months.

8 The anti-dumping duty expired on 31 March 2011, as indicated in the Commission Notice published in the Official Journal of the European Union on 16 March 2011 (OJ 2011 C 82, p. 4).

9 Regulation No 1472/2006 was the subject of proceedings before the General Court in the cases which gave rise to the judgments of 4 March 2010, Brosmann Footwear (HK) and Others v Council (T‑401/06, EU:T:2010:67), and of 4 March 2010, Zhejiang Aokang Shoes and Wenzhou Taima Shoes v Council (T‑407/06 and T‑408/06, EU:T:2010:68), in which the General Court dismissed the actions brought by certain companies established in China which produce and export the products at issue.

10 On appeal against those judgments, the Court of Justice, by judgments of 2 February 2012, Brosmann Footwear (HK) and Others v Council (C‑249/10 P, EU:C:2012:53), and of 15 November 2012, Zhejiang Aokang Shoes v Council (C‑247/10 P, not published, EU:C:2012:710), first, set aside those judgments of the General Court and, second, annulled Regulation No 1472/2006 in so far as it concerned those producing and exporting companies.

11 More specifically, the Court of Justice held that Regulation No 1472/2006 was vitiated by an infringement of the obligation imposed on the Commission to examine the claims of producers for market economy treatment (‘MET’) and to adjudicate upon each of those claims within a period of three months from the initiation of its investigation, in accordance with Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (OJ 1996 L 56, p. 1), as amended by Council Regulation (EC) No 461/2004 of 8 March 2004 (OJ 2004 L 77, p. 12) (replaced by Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (OJ 2009 L 343, p. 51), in turn replaced by Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on protection against dumped imports from countries not members of the European Union (OJ 2016 L 176, p. 21; ‘the basic regulation’)), and in particular Article 2(7)(b) and (c) of Regulation No 384/96 (now Article 2(7)(b) and (c) of the basic regulation), including where the Commission had decided to use the sampling method as provided for in Article 17 of Regulation No 384/96 (now Article 17 of the basic regulation) to calculate the dumping margins and the producers who had submitted those claims were not included in the sample selected (see, to that effect, judgments of 2 February 2012, Brosmann Footwear (HK) and Others v Council, C‑249/10 P, EU:C:2012:53, paragraphs 36 to 40, and of 15 November 2012, Zhejiang Aokang Shoes v Council, C‑247/10 P, not published, EU:C:2012:710, paragraphs 29 to 34).

12 Subsequently, on 19 February 2014, the Commission adopted a proposal for a Council Implementing Regulation reimposing a definitive anti-dumping duty and collecting definitely the provisional duty imposed on imports of certain footwear with uppers of leather originating in the People’s Republic of China and produced by [those undertakings] (COM/2014/087 final). By Implementing Decision 2014/149/EU of 18 March 2014 rejecting the proposal for an Implementing Regulation reimposing a definitive anti-dumping duty and collecting definitely the provisional duty imposed on imports of certain footwear with uppers of leather originating in the People’s Republic of China and produced by Brosmann Footwear (HK) Ltd, Seasonable Footwear (Zhongshan) Ltd, Lung Pao Footwear (Guangzhou) Ltd, Risen Footwear (HK) Co. Ltd and Zhejiang Aokang Shoes Co. Ltd (OJ 2014 L 82, p. 27), the Council decided to reject the Commission’s proposal on the ground that the operators had acquired a legitimate expectation that their debt was time-barred and, consequently, ‘extinguished’ (see recital 5 of that decision).

13 The judgments of the Court of Justice cited in paragraph 11 above were relied on by three importers of the products at issue, namely Puma, C & J Clark International Ltd (‘Clark’) and Timberland Europe BV, in order to challenge the relevant anti-dumping measures before the competent national courts, which subsequently referred questions to the Court of Justice for a preliminary ruling on interpretation and validity under Article 267 TFEU.

14 Thus, on 13 December 2013, 24 January and 10 December 2014, the First-tier Tribunal (Tax Chamber) (United Kingdom), the Finanzgericht München (Finance Court, Munich, Germany) and the Rechtbank Noord-Holland (District Court, Noord-Holland, Netherlands), respectively, submitted requests for a preliminary ruling to the Court of Justice under Article 267 TFEU concerning the validity and the interpretation of Regulation No 1472/2006 and Implementing Regulation No 1294/2009, and, as regards the requests of the First-tier Tribunal (Tax Chamber) and the Finanzgericht München (Finance Court, Munich), concerning the interpretation of Article 236 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1), as amended by Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 (OJ 2013 L 269, p. 1) (‘the Customs Code’).

15 The first two of those cases gave rise to the judgment of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74), by which the Court of Justice declared invalid Regulation No 1472/2006 and Implementing Regulation No 1294/2009 (together, ‘Regulation No 1472/2006 and Implementing Regulation No 1294/2009’ or ‘the regulations declared invalid’), in so far as they infringed Article 2(7)(b) and Article 9(5) of Regulation No 384/96, as amended by Regulation No 461/2004 (now Article 2(7)(b) and Article 9(5) of the basic regulation).

16 More specifically, the Court of Justice held that the regulations declared invalid had been adopted without the Council and Commission having first examined the MET claims and the individual treatment (‘IT’) claims submitted by the Chinese and Vietnamese exporting producers not sampled in the context of the investigation which had led to the adoption of those regulations (see, to that effect, judgment of 4 February 2016, C & J Clark International and Puma, C‑659/13 and C‑34/14, EU:C:2016:74, paragraphs 112 and 135).

17 In the light of that judgment, the Rechtbank Noord-Holland (District Court, Noord-Holland) informed the Court of Justice that it did not intend to maintain its request for a preliminary ruling in the third case, which was consequently removed from the register of the Court of Justice (order of 11 April 2016, Timberland Europe, C‑571/14, not published, EU:C:2016:274, paragraphs 2 and 3).

Implementation of the judgment of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14)

18 Following the judgment of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74), the Commission adopted Implementing Regulation (EU) 2016/223 of 17 February 2016 establishing a procedure for assessing certain [MET] and [IT] claims made by exporting producers from China and Vietnam, and implementing the judgment of the Court of Justice in joined cases C‑659/13 and C‑34/14 (OJ 2016 L 41, p. 3).

19 It is apparent from recital 16 of Implementing Regulation 2016/223 that the Commission decided to resume the anti-dumping proceeding at the point at which the illegality identified in the judgment of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74), had occurred and to examine whether market economy conditions prevailed for the exporting producers concerned for the period from 1 April 2004 to 31 March 2005. In accordance with recital 17 of that regulation, the Commission intended to assess, for imports of Clark and of Puma, all MET and IT claims submitted. Furthermore, as stated in recital 18 of that regulation, it decided to order the national customs authorities ‘[provisionally] not to reimburse [the anti-dumping duties collected]’. By contrast, for imports of other importers that did not have standing themselves to bring an action for annulment, and which hence could rely on the judgment of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74), in their applications for reimbursement of anti-dumping duties pursuant to Article 236 of the Customs Code, the Commission, for the sake of efficient use of resources, decided to only assess MET and IT claims of those exporting producers which were concerned by reimbursement claims that had been filed with national customs authorities in due time and form (recital 19 of Implementing Regulation 2016/223).

‘1. National customs authorities, which have received a request for re-imbursement, based on Article 236 of the … Customs Code, of anti-dumping duties imposed by [the regulations declared invalid] and collected by national customs authorities, which is based on the fact that a non-sampled exporting producer had requested MET or IT, shall forward that request and any supporting documents to the Commission.

2. Within eight months of the receipt of the request and any supporting documents, the Commission shall verify whether the exporting producer had indeed lodged an MET and IT claim. If so, the Commission shall assess that claim and reimpose the appropriate duty by means of a Commission Implementing Regulation, after disclosure … .

3. The national customs authorities shall await the publication of the relevant Commission Implementing Regulation re-imposing the duties before deciding on the claim for repayment and remission of anti-dumping duties.’

21 In proceedings relating to a claim for repayment of anti-dumping duties paid, brought before the Finanzgericht Düsseldorf (Finance Court, Düsseldorf, Germany), that court, by decision of 20 April 2016, referred a question to the Court of Justice for a preliminary ruling under point (b) of the first paragraph of Article 267 TFEU, calling into question the validity of Implementing Regulation 2016/223. In its judgment of 15 March 2018, Deichmann (C‑256/16, EU:C:2018:187), the Court of Justice reached the conclusion that consideration of that question had not revealed any factor capable of affecting the validity of that regulation.

22 On 4 December 2017, the Commission adopted Implementing Regulation (EU) 2017/2232 reimposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain footwear with uppers of leather originating in the People’s Republic of China and Vietnam and produced by certain exporting producers in the People’s Republic of China and Vietnam and implementing the judgment of the Court of Justice in Joined Cases C‑659/13 and C‑34/14 (OJ 2017 L 319, p. 30, ‘the contested regulation’).

23 The contested regulation reimposed, in accordance with Article 1(1) and (3) and Annex II thereto, a definitive anti-dumping duty at a rate of 16.5% and 10% respectively on imports of the products at issue manufactured by 70 Chinese and Vietnamese exporting producers during the period of application of the regulations declared invalid.

24 It is apparent from recital 37 of the contested regulation that the 70 Chinese or Vietnamese exporting producers in question, listed in Annex II, had submitted MET or IT claims but had not been included in the sample in the investigation which gave rise to the regulations declared invalid.

25 Annex III to the contested regulation lists exporting producers from which the Commission did not receive MET or IT claims during the investigation preceding the adoption of the regulations declared invalid. According to recital 157 of the contested regulation, the reimbursement claims relating to imports from those exporting producers therefore should not be granted.

26 In the context of a dispute concerning an application for the repayment of anti-dumping duties paid, brought before the First-tier Tribunal (Tax Chamber), that tribunal, by decision of 14 November 2016, referred a question to the Court of Justice for a preliminary ruling under point (b) of the first paragraph of Article 267 TFEU, calling into question the validity of two Commission implementing regulations which, in a similar way to the contested regulation, reimposed anti-dumping duties imposed by the regulations declared invalid.

27 The regulations in question were, first, Commission Implementing Regulation (EU) 2016/1395 of 18 August 2016 reimposing a definitive anti-dumping duty and collecting definitely the provisional duty imposed on imports of certain footwear with uppers of leather originating in the People’s Republic of China and produced by Buckinghan Shoe Mfg Co. Ltd, Buildyet Shoes Mfg., DongGuan Elegant Top Shoes Co. Ltd, Dongguan Stella Footwear Co. Ltd, Dongguan Taiway Sports Goods Limited, Foshan City Nanhai Qun Rui Footwear Co., Jianle Footwear Industrial, Sihui Kingo Rubber Shoes Factory, Synfort Shoes Co. Ltd, Taicang Kotoni Shoes Co. Ltd, Wei Hao Shoe Co. Ltd, Wei Hua Shoe Co. Ltd, Win Profile Industries Ltd, and implementing the judgment of the Court of Justice in joined cases C‑659/13 and C‑34/14 (OJ 2016 L 225, p. 52) and, second, Commission Implementing Regulation (EU) 2016/1647 of 13 September 2016 re-imposing a definitive anti-dumping duty and collecting definitely the provisional duty imposed on imports of certain footwear with uppers of leather originating in Vietnam and produced by Best Royal Co. Ltd, Lac Cuong Footwear Co., Ltd, Lac Ty Co., Ltd, Saoviet Joint Stock Company (Megastar Joint Stock Company), VMC Royal Co Ltd, Freetrend Industrial Ltd and its related company Freetrend Industrial A (Vietnam) Co, Ltd, Fulgent Sun Footwear Co., Ltd, General Shoes Ltd, Golden Star Co, Ltd, Golden Top Company Co., Ltd, Kingmaker Footwear Co. Ltd, Tripos Enterprise Inc., Vietnam Shoe Majesty Co., Ltd, and implementing the judgment of the Court of Justice in joined cases C‑659/13 and C‑34/14 (OJ 2016, L 245, p. 16).

28 In its judgment of 19 June 2019, C & J Clark International (C‑612/16, not published, EU:C:2019:508), the Court of Justice concluded that examination of that question had revealed nothing capable of affecting the validity of the two implementing regulations referred to in paragraph 27 above.

29 The applicant brought the present action by application lodged at the Court Registry on 28 February 2018.

30 By document lodged at the Court Registry on 13 March 2018, the applicant requested, pursuant to Article 69(d) of the Rules of Procedure of the General Court, that the proceedings be stayed pending the decisions of the Court of Justice closing the proceedings in Cases C‑612/16, C & J Clark International, and C‑631/16, X. The Commission submitted observations on that request within the prescribed period.

31 By decision of the President of the Third Chamber of the General Court (former composition) of 10 April 2018, the proceedings were stayed pending the decisions of the Court of Justice closing the proceedings in Cases C‑612/16, C & J Clark International, and C‑631/16, X.

32 Following the order of 17 April 2018, X (C‑631/16, not published, EU:C:2018:312), and the judgment of 19 June 2019, C & J Clark International (C‑612/16, not published, EU:C:2019:508), the proceedings in the present case were resumed on 19 June 2019.

33 On 12 July 2019, the General Court, by way of measures of organisation of procedure pursuant to Article 89(3) of the Rules of Procedure, invited the parties to comment on the potential impact of the judgments of 15 March 2018, Deichmann (C‑256/16, EU:C:2018:187), and of 19 June 2019, C & J Clark International (C‑612/16, not published, EU:C:2019:508), on the action in the present case. The parties lodged their observations within the prescribed period.

34 By decision of the President of the Third Chamber of the General Court (former composition) of 19 August 2019, Cases T‑790/16 and T‑861/16, C & J Clark International v Commission, T‑154/17, Deichmann v Commission, T‑155/17, Van Haren Schoenen v Commission, T‑347/17, FLA Europe v Commission, T‑360/17, Jana shoes and Others v Commission, T‑124/18, Wendel and Others v Commission, T‑126/18, Van Haren Schoenen v Commission, T‑127/18, Cortina and FLA Europe v Commission, T‑131/18, Deichmann v Commission, T‑141/18, Deichmann v Commission, T‑142/18, Buffalo – Boots v Commission and T‑157/18, Caprice Schuhproduktion v Commission were stayed pending the decision closing the proceedings in the present case, which has been designated as the ‘test case’.

35 Following a change in the composition of the Chambers of the General Court on 4 October 2019, pursuant to Article 27(5) of the Rules of Procedure, the Judge-Rapporteur was assigned to the Third Chamber (new composition), to which the present case was consequently allocated.

36 Acting on a proposal from the Judge-Rapporteur, the General Court (Third Chamber) decided to open the oral part of the procedure.

37 As the hearing, which was initially scheduled for 2 October 2020, was adjourned, on 9 October 2020, the General Court, by way of measures of organisation of procedure pursuant to Article 89(3)(a) of the Rules of Procedure, asked the applicant whether, in the light of the health situation associated with the COVID-19 pandemic, it still wished to state its case at a hearing. The applicant lodged its observations within the prescribed period and stated that it wished to maintain its request for a hearing.

38 The parties presented oral argument and replied to the oral questions put by the General Court at the hearing on 20 November 2020.

39 At the hearing, the applicant withdrew some of the complaints put forward in the context of the first three pleas as well as the fourth plea in its entirety, formal note of which was taken in the minutes of the hearing.

42 The applicant submits that it has standing to bring proceedings under the second limb of the fourth paragraph of Article 263 TFEU since it is directly and individually concerned by the contested regulation. The Commission disputes that assessment, taking the view that the action is admissible under the third limb of the fourth paragraph of Article 263 TFEU.

43 In that regard, it should be recalled that, in accordance with settled case-law, the conditions governing admissibility of an action laid down in the fourth paragraph of Article 263 TFEU concern an absolute bar to proceeding and are therefore for the General Court to consider of its own motion (see, to that effect, judgment of 16 May 2019, Pebagua v Commission, C‑204/18 P, not published, EU:C:2019:425, paragraph 28 and the case-law cited).

44 Under the second limb of the fourth paragraph of Article 263 TFEU, any natural or legal person may institute proceedings against an act which is of direct and individual concern to them.

45 In the first place, as regards direct concern, it must be recalled that that condition requires that the measure in question must directly affect the legal situation of the individual and leave no discretion to the addressees of that measure who are entrusted with the task of implementing it, such implementation being purely automatic and resulting solely from the rule in question without the application of other intermediate rules (see, to that effect, judgments of 5 May 1998, Dreyfus v Commission, C‑386/96 P, EU:C:1998:193, paragraph 43, and of 10 September 2009, Commission v Ente per le Ville Vesuviane and Ente per le Ville Vesuviane v Commission, C‑445/07 P and C‑455/07 P, EU:C:2009:529, paragraph 45; and order of 9 July 2013, Regione Puglia v Commission, C‑586/11 P, not published, EU:C:2013:459, paragraph 31).

46 In the present case, first, the contested regulation directly affects the applicant’s legal situation since it determines the anti-dumping duty which the applicant must pay in its capacity as an importer. Second, that regulation obliges the Member States, in particular their customs authorities, to levy that duty without leaving them any discretion. Therefore, the applicant is directly concerned by the contested regulation (see, to that effect, order of 7 March 2014, FESI v Council, T‑134/10, not published, EU:T:2014:143, paragraph 26 and the case-law cited).

47 In the second place, with regard to the requirement of individual concern to the applicant, it should be recalled that, while it is true that regulations imposing anti-dumping duties are of general application in that they apply to all the traders concerned, it is nonetheless not inconceivable that some of the provisions of those regulations may be of individual concern to certain traders (see judgments of 18 October 2016, Crown Equipment (Suzhou) and Crown Gabelstapler v Council, T‑351/13, not published, EU:T:2016:616, paragraph 25 and the case-law cited, and of 3 May 2018, Distillerie Bonollo and Others v Council, T‑431/12, EU:T:2018:251, paragraph 75 and the case-law cited).

48 It follows that measures imposing anti-dumping duties may, without losing their character as measures of general application, be of individual concern in certain circumstances to certain traders which therefore have standing to bring an action for their annulment (see, to that effect, judgment of 16 May 1991, Extramet Industrie v Council, C‑358/89, EU:C:1991:214, paragraph 14).

49 In accordance with the case-law, that may be the case for an independent importer who has established the existence of a set of factors constituting a situation peculiar to that importer, distinguishing it, as regards the measure in question, from all other traders (see, to that effect, judgments of 16 May 1991, Extramet Industrie v Council, C‑358/89, EU:C:1991:214, paragraph 17; of 28 February 2002, BSC Footwear Supplies and Others v Council, T‑598/97, EU:T:2002:52, paragraph 50; and of 19 April 2012, Würth and Fasteners (Shenyang) v Council, T‑162/09, not published, EU:T:2012:187, paragraph 28).

50 In that context, it is important to recall that, where a measure affects a group of persons who were identified or identifiable when that measure was adopted by reason of criteria specific to the members of the group, those persons might be individually concerned by that measure inasmuch as they form part of a limited class of traders and that that can be the case particularly when the measure alters rights acquired by the individual prior to its adoption (see, to that effect, judgments of 27 February 2014, Stichting Woonpunt and Others v Commission, C‑132/12 P, EU:C:2014:100, paragraph 59, and of 18 October 2016, Crown Equipment (Suzhou) and Crown Gabelstapler v Council, T‑351/13, not published, EU:T:2016:616, paragraph 36).

51 In the present case, the contested regulation was adopted for the purpose of implementing the judgment of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74). By that judgment, the Court of Justice declared Regulation No 1472/2006 and Implementing Regulation No 1294/2009 invalid in so far as they had been adopted without prior examination by the Council and the Commission of the MET and IT claims submitted to them by the Chinese and Vietnamese exporting producers not sampled in the investigation leading to the adoption of those regulations (see paragraphs 15 and 16 above).

52 Thus, the Commission decided to resume the anti-dumping proceeding at the point at which it considered that the illegality found by the Court of Justice had occurred and to examine whether those exporting producers operated under market economy conditions or could claim IT (see paragraph 19 above). However, for the sake of the efficient use of resources, the Commission decided to limit that examination – except as regards the suppliers of Clark and Puma – to the exporting producers concerned by the reimbursement claims filed with the national customs authorities by the importers (see recitals 17 and 19 of Implementing Regulation 2016/223).

53 In that regard, it should be noted that it is common ground between the parties that the applicant filed such claims with the German customs authorities.

54 The reimbursement claims filed with the national customs authorities by the importers, including those of the applicant, were, in accordance with Article 1(1) of Implementing Regulation 2016/223, forwarded to the Commission (see recitals 30 and 31 of the contested regulation). On that basis, the Commission identified the 70 Chinese or Vietnamese exporting producers listed in Annex II to the contested regulation, whose imports were subject to a definitive anti-dumping duty by the contested regulation, which had not formed part of the sample in the investigation that had led to the adoption of the regulations declared invalid and which had submitted an MET or IT claim (see recitals 32 and 37 of the contested regulation).

55 It follows that, first, it was the reimbursement claims filed by those importers, such as the applicant, with the national authorities and forwarded to the Commission which led to the adoption of the contested regulation. In other words, that regulation did not concern any Chinese or Vietnamese exporting producer which was not a supplier of an importer that had filed such a claim. Second, when that regulation was adopted, the number of reimbursement claims was determined and, consequently, the importers liable to be affected by it were identified or identifiable. The class of importers concerned by the contested regulation could no longer be extended since it consisted of all the importers that had imported the products in question during the initial period of application of the regulations declared invalid, which had already expired, and that had filed reimbursement claims with the national customs authorities. Accordingly, the applicant belongs to a limited class of importers which are distinguished from any other importer of the products in question.

56 In addition, it is apparent from recital 43 of the contested regulation that the determination of whether MET or IT prevailed for the 70 exporting producers listed in Annex II to the contested regulation was intended to ascertain the extent to which the importers concerned, such as the applicant, were entitled to receive a repayment of the anti-dumping duties they had paid on exports of those exporting producers. In its examination, the Commission concluded that MET and IT should be refused and that the anti-dumping duties imposed by the regulations declared invalid had to be reimposed (recitals 48, 58, 70 and 154 of the contested regulation). That meant, according to recital 46 of the contested regulation, that no repayment of anti-dumping duties could be awarded to the importers concerned.

57 Therefore, by adopting the contested regulation, the Commission implicitly decided on the action to be taken in respect of the reimbursement claims filed with the national customs authorities, including those of the applicant.

58 Accordingly, for the reasons set out above and having regard to the particular features of the reimposition of anti-dumping duties in the present case, the applicant must be regarded as being directly and individually concerned by the contested regulation. Its action must therefore be declared admissible, without there being any need to examine whether the contested regulation constitutes a regulatory act not entailing implementing measures and without it being necessary to rule on the admissibility of the additional documents produced by the applicant on 23 July 2020 in support of the admissibility of the action, including Annexes F.1 and F.2.

59 In support of its action, the applicant initially put forward five pleas in law. At the hearing, it withdrew some of the complaints put forward in the context of the first three pleas as well as the fourth plea in its entirety (see paragraph 39 above).

60 By its first plea in law, the applicant claims that only the Council was competent to adopt the contested regulation and that the Commission did not have a legal basis to prevent the national customs authorities from reimbursing anti-dumping duties which were not legally owed. By its second plea, it submits that the Commission infringed Article 266 TFEU by failing to adopt the measures necessary to comply with the judgment of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74). By its third plea, the applicant claims that the contested regulation infringes the general principles of legal certainty and non-retroactivity. By its fifth plea, the applicant claims that the contested regulation goes beyond what is necessary to attain the objective it pursues and therefore infringes the principle of proportionality within the meaning of Article 5(1) and (4) TEU.

61 By its first plea, the applicant submits, first, that the Commission did not have a legal basis to prevent the national customs authorities from reimbursing, in accordance with Article 236 of the Customs Code, the anti-dumping duties imposed by the regulations declared invalid. Second, the decision-making changes brought about by Regulation (EU) No 37/2014 of the European Parliament and of the Council of 15 January 2014 amending certain regulations relating to the common commercial policy as regards the procedures for the adoption of certain measures (OJ 2014 L 18, p. 1), transferring the power to adopt definitive anti-dumping measures to the Commission, are not applicable, in view of the transitional regime provided for in Article 3 of that regulation, and therefore only the Council had the competence to adopt the contested regulation.

– The complaint that there was no legal basis for preventing the reimbursement of anti-dumping duties

63 In so far as the applicant considers that the contested regulation prevents the national customs authorities from reimbursing anti-dumping duties imposed by the regulations declared invalid, it must be pointed out that nothing in the operative part of the contested regulation sets out a prohibition to that effect.

64 It is true that, in the recitals to the contested regulation, the Commission specified the consequences for reimbursement claims filed with the national customs authorities. It is apparent, inter alia, from recitals 43 to 46 of the contested regulation that the examination of MET and IT claims is intended to determine whether an individual duty rate should be granted to the exporting producers which submitted such a claim and, consequently, the extent to which the importers which imported the products in question are entitled to repayment of the anti-dumping duties that they had paid on their exports.

65 Those considerations must be read in the light of the grounds set out in the judgment of 15 March 2018, Deichmann (C‑256/16, EU:C:2018:187, paragraph 69), according to which it is only the difference, if any, between the rate set by the regulations declared invalid and the rate determined correctly on the basis of that examination that had been wrongly imposed and, as such, had to be repaid to the parties concerned.

66 Those considerations are therefore merely the logical and unavoidable consequence of the rejection of MET and IT claims in the event that, following the examination of those claims, the Commission were to find that those statuses should not be granted to the exporting producers concerned. However, that does not mean that the Commission itself decides on the applicants’ reimbursement claims or, a fortiori, prohibits their repayment.

67 Therefore, since the contested regulation does not, in itself, prevent the reimbursement of those duties, the applicant’s arguments in that regard are, as the Commission rightly submits, ineffective.

68 Furthermore, it must be recalled that Article 1(4) of Regulation No 1472/2006 and Article 1(5) of Implementing Regulation No 1294/2009 – provisions which are not covered by the declaration of invalidity made in the judgment of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74) – provide, inter alia, that ‘the provisions in force concerning customs duties shall apply’. Accordingly, and as is apparent from the judgment of 19 June 2019, C & J Clark International (C‑612/16, not published, EU:C:2019:508, paragraphs 81 to 84), the Customs Code should be applied to the anti-dumping duties reimposed by the contested regulation.

69 In that regard, it should be noted that Article 217(1) of the Customs Code provides that any amount of import duty or export duty resulting from a customs debt must be calculated by the national customs authorities as soon as they have the necessary particulars. In accordance with Article 221(1) of that code, the amount of duty must be communicated to the debtor in accordance with appropriate procedures as soon as it has been entered in the accounts, that is to say, determined by the national authorities.

70 It follows from the case-law of the Court of Justice that those operations occur after the anti-dumping duties originally imposed by regulations declared invalid have been reimposed, at the appropriate rate, by a regulation such as the contested regulation (see, to that effect, judgment of 15 March 2018, Deichmann, C‑256/16, EU:C:2018:187, paragraphs 83 and 84)

71 Consequently, and as the applicant itself acknowledges, applications for repayment and remission of duties fall within the competence of the national authorities and courts, and it is the latter – and not the Commission – which are required to give a final ruling, when applying the Customs Code, on reimbursement claims and to verify on a case-by-case basis whether such reimbursement must be granted. That is also the case here since the applicant filed reimbursement claims before the German customs authorities (see paragraph 53 above).

72 Consequently, the complaint alleging that there is no legal basis for preventing the reimbursement of the anti-dumping duties must be rejected.

73 As regards the adoption of the contested regulation, it should be recalled that, as the Court of Justice held in the judgment of 15 March 2018, Deichmann (C‑256/16, EU:C:2018:187, paragraph 52), pursuant to the principle that European Union acts must be adopted in accordance with the procedural rules in force at the time of their adoption, even in a procedure that was initiated before that date, but is still pending after that date (see judgment of 21 September 2017, Riva Fire v Commission, C‑89/15 P, EU:C:2017:713, paragraph 28 and the case-law cited), proceedings initiated on the basis of Regulation No 384/96, as amended by Council Regulation (EC) No 2117/2005 of 21 December 2005 (OJ 2005 L 340, p. 17), could, as from its repeal by Regulation No 1225/2009, as amended by Regulation No 37/2014 and repealed by the basic regulation, no longer be pursued on that basis (see Article 23 of Regulation No 1225/2009 and Article 24 of the basic regulation).

74 Since the basic regulation, in accordance with Article 25 thereof, entered into force on 20 July 2016, and the contested regulation was adopted on 4 December 2017, the latter was therefore rightly based on that basic regulation, in particular on Article 9(4) and Article 14(1) and (3), as set out in the second citation in the contested regulation.

75 In that regard, it should be noted that, first, according to Article 9(4) of the basic regulation, where the facts as finally established show that there is dumping and injury caused thereby, and the Union interest calls for intervention, a definitive anti-dumping duty is to be imposed by the Commission. Second, Article 14(1) of that regulation provides that the anti-dumping duties are to be imposed by regulation. As the Court of Justice held in the judgment of 19 June 2019, C & J Clark International (C‑612/16, not published, EU:C:2019:508, paragraph 42), those two provisions, read together, therefore empower the Commission to impose anti-dumping duties by regulation.

76 According to the Court of Justice, Article 9(4) and Article 14(1) of the basic regulation also empower the Commission to reimpose anti-dumping duties following the delivery of a judgment annulling an act or declaring it to be invalid, after the Commission has resumed the proceedings that gave rise to the regulations annulled or declared invalid by the Courts of the European Union and has thereby, in accordance with the procedural and substantive rules applicable ratione temporis, remedied the illegalities identified (see, to that effect, judgment of 19 June 2019, C & J Clark International, C‑612/16, not published, EU:C:2019:508, paragraph 43).

77 It follows that, since it refers to Article 9(4) and Article 14(1) of the basic regulation, the contested regulation has a legal basis that empowers the Commission to reimpose the anti-dumping duties imposed by the regulations declared invalid (judgment of 19 June 2019, C & J Clark International, C‑612/16, not published, EU:C:2019:508, paragraph 44).

78 Therefore, in the light of that judgment of the Court of Justice concerning Implementing Regulations 2016/1395 and 2016/1647, which correspond to the contested regulation and follow a similar approach to implementing the judgment of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74), the transitional rules laid down in Article 3 of Regulation No 37/2014, as relied on by the applicant, are irrelevant in the present case.

79 Accordingly, the complaint alleging that the Commission lacked competence must be rejected as unfounded and, consequently, the first plea must be rejected in its entirety.

80 By the second plea in law, the applicant claims that the Commission infringed Article 266 TFEU by failing to take the necessary measures to comply with the judgment of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74). It criticises the fact that, contrary to the requirements of that article, the contested regulation prohibits the repayment of the anti-dumping duties imposed by the regulations declared invalid on imports both from the exporting producers listed in Annex II to the contested regulation and from those listed in Annex III to that regulation.

82 In that respect, it should be borne in mind that Article 266 TFEU provides, in particular in its first paragraph, that the European Union institution, body, office or entity whose act has been declared void by the Court of Justice or the General Court is required to take the necessary measures to comply with the judgment of that court.

83 That obligation to act applies, by analogy, in a situation where a judgment of the Court of Justice has declared an EU act to be invalid, since the legal effect of that judgment is to require the competent institution, body, office or entity to take the necessary measures to remedy the illegality identified by the Court of Justice (see judgment of 19 June 2019, C & J Clark International, C‑612/16, not published, EU:C:2019:508, paragraph 38 and the case-law cited).

84 In this case, the illegality found by the Court of Justice in the judgment of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74) concerned only the examination of the MET or IT claims, namely the fact that the Council and the Commission had not examined the claims submitted by exporting producers not sampled in the investigation that led to the adoption of the regulations declared invalid (see paragraph 16 above). However, that judgment does not affect the other conclusions of the anti-dumping proceeding concerning the products at issue, namely those relating to dumping, injury, the causal link and the European Union interest (see, to that effect, judgments of 15 March 2018, Deichmann, C‑256/16, EU:C:2018:187, paragraph 67, and of 19 June 2019, C & J Clark International, C‑612/16, not published, EU:C:2019:508, paragraph 80).

85 Accordingly, the Commission could validly implement the judgment of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74), first, by examining the MET or IT claims submitted by the exporting producers concerned, such as the 70 exporting producers listed in Annex II to the contested regulation, which had not been sampled in the investigation that led to the adoption of the regulations declared invalid and, second, by determining, on the basis of that examination, whether the rates of the anti-dumping duties applicable to exports of the products in question by those exporting producers should be lower than the rates set out in the regulations declared invalid (see, to that effect, judgments of 15 March 2018, Deichmann, C‑256/16, EU:C:2018:187, paragraph 68, and of 19 June 2019, C & J Clark International, C‑612/16, not published, EU:C:2019:508, paragraph 49).

86 As is apparent from paragraph 84 above and as Advocate General Campos Sánchez-Bordona observed in point 105 of his Opinion in Deichmann (C‑256/16, EU:C:2017:580), the only question that remained open in the present case was to determine the duty rate (general rate or lower rate) depending on the status of the exporter having claimed MET or IT.

87 Even though, to that end, the Commission had previously, by Implementing Regulation 2016/223, suspended the repayment of the anti-dumping duties imposed by the regulations declared invalid immediately after the judgment of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74), the Court of Justice upheld that approach in its judgment of 15 March 2018, Deichmann (C‑256/16, EU:C:2018:187, paragraphs 69 to 71).

88 As regards the exporting producers listed in Annex III to the contested regulation, recital 33 of that regulation states, in essence, that the Commission did not receive MET or IT claims from those producers during the investigation which led to the adoption of the regulations declared invalid. In addition, that recital indicates that those exporting producers did not demonstrate that they were linked to any of the Chinese or Vietnamese exporting producers that had made such a claim in the context of that investigation. It follows that those exporting producers are not affected by the unlawfulness established in the judgment of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74), with the result that the Commission was not required to determine the duty rate for imports from those exporting producers.

89 As regards the claims based on an alleged prohibition on repayment of anti-dumping duties imposed by the regulations declared invalid, it should be noted that those allegations are ineffective since the contested regulation does not, as such, prohibit the reimbursement of anti-dumping duties (see paragraph 67 above). In any event, they are unfounded, since it is only the difference, if any, between the rate fixed by those regulations and the correctly determined rate, depending on the MET and IT claims, which must, where appropriate, be reimbursed to the parties concerned (see paragraph 65 above). It is apparent from recitals 43 to 48 of the contested regulation that the examination of those claims did not reveal any such difference in the present case.

90 Therefore, as the Court of Justice held in the judgment of 19 June 2019, C & J Clark International (C‑612/16, not published, EU:C:2019:508, paragraph 51), as regards Implementing Regulations 2016/1395 and 2016/1647, which correspond to the contested regulation and are based on the same approach to implementing the judgment of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74), the Commission did not infringe Article 266 TFEU.

The third plea in law, alleging infringement of the general principles of legal certainty and non-retroactivity

92 In the third plea, the applicant submits that the contested regulation infringes the general principles of legal certainty and non-retroactivity and Article 1(1) of the basic regulation, in so far as it produces effects prior to its entry into force, which is not required in order to implement the judgment of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74), or by reason of an ‘overriding matter of public interest’. In addition, the appellant invokes the Commission’s previous and subsequent practice and its legitimate expectations arising from the fact that, following the judgments of 2 February 2012, Brosmann Footwear (HK) and Others v Council (C‑249/10 P, EU:C:2012:53), and of 15 November 2012, Zhejiang Aokang Shoes v Council (C‑247/10 P, not published, EU:C:2012:710), the Council considered that a retroactive reimposition of anti-dumping measures on the products at issue infringed the principle of legal certainty.

94 In the first place, as regards the general principles of legal certainty and non-retroactivity, it must be observed that those principles were enshrined, in the area of anti-dumping measures, in the rule initially laid down in Article 10(1) of Regulation No 384/96 and subsequently reproduced, in the same terms, in Article 10(1) of Regulation No 1225/2009, then in Article 10(1) of the basic regulation (see, to that effect, judgment of 19 June 2019, C & J Clark International, C‑612/16, not published, EU:C:2019:508, paragraph 53 and the case-law cited, and the Opinion of Advocate General Campos Sánchez-Bordona in Deichmann, C‑256/16, EU:C:2017:580, point 103).

95 In addition, in the judgments of 15 March 2018, Deichmann (C‑256/16, EU:C:2018:187, paragraphs 73, 74 and 76), and of 19 June 2019, C & J Clark International (C‑612/16, not published, EU:C:2019:508, paragraphs 54 and 55), the Court of Justice approved the resumption of the procedure leading to the adoption of a regulation imposing an anti-dumping duty which had been annulled or declared invalid, with a view to reimposing anti-dumping duties that had expired, on the condition that the substantive rules in force at the time of the facts referred to in that regulation were applied.

96 In the present case, the alleged infringement of the principles of legal certainty and non-retroactivity by the contested regulation must – in view of the case-law of the Court of Justice relating to the period covered by the facts referred to in the regulations declared invalid – be assessed in the light of Article 10(1) of Regulation No 384/96 (see, to that effect, judgment of 19 June 2019, C & J Clark International, C‑612/16, not published, EU:C:2019:508, paragraph 55).

97 According to the Court of Justice, Article 10(1) of Regulation No 384/96 precludes the reimposition of the anti-dumping duties on products released for free circulation prior to the date on which the regulations declared invalid entered into force (see, to that effect, judgment of 15 March 2018, Deichmann, C‑256/16, EU:C:2018:187, paragraph 77).

98 By contrast, Article 10(1) of Regulation No 384/96 does not preclude such a resumption of the proceeding in a case in which the anti-dumping duties concerned have expired, provided that such duties are reimposed during their initial application period (judgment of 15 March 2018, Deichmann, C‑256/16, EU:C:2018:187, paragraph 78).

99 Therefore, contrary to what is claimed by the applicant, the principles of legal certainty and non-retroactivity, as enshrined in Article 10(1) of Regulation No 384/96, do not preclude an act such as the contested regulation from reimposing anti-dumping duties on imports that were made during the period of application of the regulations declared invalid (see, to that effect, judgment of 19 June 2019, C & J Clark International, C‑612/16, not published, EU:C:2019:508, paragraph 57).

100 More specifically, as noted in point 105 of the Opinion of Advocate General Campos Sánchez-Bordona in Deichmann (C‑256/16, EU:C:2017:580), retroactivity would involve the application of a subsequent provision to an already established legal situation. However, as the Advocate General stated, that is not the case here, since, first, the provisions applicable are precisely those that were in force at the time when the facts occurred and, second, the question of determining the rate to be imposed, depending on the status of the exporter having claimed MET or IT, remained open.

101 Since the contested regulation does not apply retroactively to a situation which has become definitive before its entry into force, the principle of legal certainty cannot be infringed either (see, to that effect, judgment of 28 February 2017, Canadian Solar Emea and Others v Council, T‑162/14, not published, EU:T:2017:124, paragraphs 155 and 159).

102 Therefore, following the judgment of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74), the Commission, as set out in recitals 43 to 48 of the contested regulation, reassessed the applicable anti-dumping duty rate by examining whether the exporting producers concerned operated under market economy conditions or could claim IT (see also paragraph 85 above).

103 Furthermore, in view of the fact that the illegality found by the Court of Justice in the judgment of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74), concerned only the examination of MET or IT claims, that judgment does not affect the other findings of the anti-dumping proceeding relating to the products at issue (see paragraph 84 above).

104 Accordingly, and by analogy with the ruling of the Court of Justice in the judgment of 15 March 2018, Deichmann (C‑256/16, EU:C:2018:187, paragraph 79), the principles of legal certainty and non-retroactivity, as enshrined in Article 10(1) of Regulation No 384/96, did not preclude the resumption of the anti-dumping proceeding concerning the products at issue and the adoption of the contested regulation.

105 The same is true of Article 1(1) of Regulation No 384/96, in the light of which the complaint alleging infringement of Article 1(1) of the basic regulation must be assessed ratione temporis (see paragraph 96 above). That provision lays down only basic principles for the imposition of an anti-dumping duty and does not lay down any stricter obligation as regards the requirements arising from the principles of legal certainty and non-retroactivity.

106 In any event, even assuming that the contested regulation applies retroactively, this would, exceptionally, be justified in the light of the case-law (see, to that effect, judgment of 28 February 2017, JingAo Solar and Others v Council, T‑157/14, not published, EU:T:2017:127, paragraph 156 and the case-law cited), in view of the fact that, first, the principle of the protection of legitimate expectations was duly complied with (see paragraphs 107 to 112 below), and second, the implementation of the judgment of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74), required the adoption of that regulation (see paragraphs 82 to 90 above).

107 In the second place, as regards the principle of protection of legitimate expectations, it should be noted that, in accordance with the Court of Justice’s settled case-law, the right to rely on that principle presupposes that precise, unconditional and consistent assurances originating from authorised, reliable sources have been given to the person concerned by the competent authorities of the European Union (see judgment of 5 March 2019, Eesti Pagar, C‑349/17, EU:C:2019:172, paragraph 97 and the case-law cited).

108 In the present case, since the illegality identified in the judgment of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74), concerns only the treatment of MET and IT claims, it cannot give rise to a legitimate expectation that the imports which took place during the period of application of the regulations declared invalid would no longer be subject to (reimposed) anti-dumping duties (see paragraph 84 above). On the contrary, that judgment presupposed that the Commission would examine the MET and IT claims submitted by the exporting producers concerned by that judgment and then decide on the appropriate duty rate on the basis of that examination (see paragraphs 85 and 86 above).

109 In addition, the Council’s rejection, by Implementing Decision 2014/149, of the Commission’s proposal to adopt an implementing regulation reimposing an anti-dumping duty following the judgments of 2 February 2012, Brosmann Footwear (HK) and Others v Council (C‑249/10 P, EU:C:2012:53), and of 15 November 2012, Zhejiang Aokang Shoes v Council (C‑247/10 P, not published, EU:C:2012:710) (see paragraph 12 above), also could not give rise to a legitimate expectation. First, that rejection is not binding on the Commission, which has since acquired the power to adopt such an implementing regulation (Opinion of Advocate General Campos Sánchez-Bordona in Deichmann, C‑256/16, EU:C:2017:580, point 109), and, second, the decisive factor for that rejection was that the competent national customs authorities had reimbursed the customs duties, whereas, in the present case, in accordance with Article 1(3) of Implementing Regulation 2016/223, no such reimbursement has taken place (see, to that effect, Opinion of Advocate General Campos Sánchez-Bordona in Deichmann, C‑256/16, EU:C:2017:580, point 109).

110 Furthermore, as regards the applicant’s claim that the Commission’s administrative practice confirms that the annulment of regulations imposing anti-dumping duties entails repayment of those duties, it must be pointed out that the lawfulness of such a regulation must be assessed in the light of legal rules, in particular the provisions of the basic regulation, not on the basis of alleged previous practice in taking decisions (see, to that effect, judgment of 18 October 2016, Crown Equipment (Suzhou) and Crown Gabelstapler v Council, T‑351/13, not published, EU:T:2016:616, paragraph 107).

111 Lastly, it is settled case-law that, where the institutions enjoy, as they do in the area of anti-dumping measures, a margin of discretion in the choice of the means needed to achieve their policies, traders are unable to claim that they have a legitimate expectation that the means initially chosen will continue to be employed, since those means may be altered by the institutions in the exercise of their discretionary power (see, to that effect, judgments of 7 May 1991, Nakajima v Council, C‑69/89, EU:C:1991:186, paragraph 120; of 4 March 2010, Zhejiang Aokang Shoes and Wenzhou Taima Shoes v Council, T‑407/06 and T‑408/06, EU:T:2010:68, paragraph 102 and the case-law cited; and of 20 May 2015, Yuanping Changyuan Chemicals v Council, T‑310/12, not published, EU:T:2015:295, paragraph 120 and the case-law cited).

112 Accordingly, neither the principle of the protection of legitimate expectations nor the Commission’s administrative practice precluded the adoption of the contested regulation in order to reimpose the appropriate rate of anti-dumping duty.

113 In the light of the foregoing, the third plea must be rejected in its entirety.

The fifth plea in law, alleging infringement of the principle of proportionality

114 The applicant submits that the contested regulation infringes the principle of proportionality within the meaning of Article 5(1) and (4) TFEU. More specifically, it submits that the contested regulation is not appropriate for achieving compliance with the judgment of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74) in so far as one consequence of that judgment is the repayment of the anti-dumping duties imposed by the regulations declared invalid. In the second place, the applicant maintains that the contested regulation exceeds the limits of what is necessary to meet the intended objective, since it unduly differentiates between the applicant’s situation and that of importers who obtained repayment of the same anti-dumping duties following the judgments of 2 February 2012, Brosmann Footwear (HK) and Others v Council (C‑249/10 P, EU:C:2012:53), and of 15 November 2012, Zhejiang Aokang Shoes v Council (C‑247/10 P, EU:C:2012:710). In addition, the applicant submits that the Commission placed an unreasonable burden on the 70 Chinese and Vietnamese exporting producers, since they were no longer in a position to cooperate in the review process, 12 years after submitting their MET and IT claims. In that context, the applicant criticises the Commission for, inter alia, neither conducting verification visits nor requesting additional information. In the third place, the applicant submits that the contested regulation was not the least onerous measure available, since the Commission could have ordered the repayment of the anti-dumping duties imposed by the regulations declared invalid. In the fourth place, the applicant submits that it is no longer possible to collect the reimposed duties on imports of the products at issue, having regard to the applicable limitation rules, in particular under the Customs Code.

116 In that regard, it should be noted, as a preliminary point, that only one of the complaints put forward by the applicant in the context of the fifth plea concerns the principle of proportionality. The Court will therefore examine, first, whether the Commission observed that principle when adopting the contested regulation and then the other complaints raised.

117 It should be borne in mind that the principle of proportionality set out in Article 5(4) TEU, which is one of the general principles of EU law, requires that acts adopted by EU institutions do not exceed the limits of what is appropriate and necessary in order to attain the legitimate objectives pursued by the legislation in question; where there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (see judgments of 11 January 2017, Spain v Council, C‑128/15, EU:C:2017:3, paragraph 71 and the case-law cited; of 13 March 2019, Poland v Parliament and Council, C‑128/17, EU:C:2019:194, paragraph 94 and the case-law cited; and of 12 April 2013, Du Pont de Nemours (France) and Others v Commission, T‑31/07, not published, EU:T:2013:167, paragraph 150 and the case-law cited).

118 In accordance with the case-law, while a legal consequence of a finding that an act of the European Union is invalid is that the institution that adopted the act must take the necessary measures to remedy the illegality established – the obligation set out in Article 266 TFEU in the event of annulment being applicable by analogy – that institution does nevertheless have a wide discretion in its choice of measures, it being understood that such measures must be compatible with the operative part of the judgment in question and the grounds that constitute its essential basis (see judgment of 15 March 2018, Deichmann, C‑256/16, EU:C:2018:187, paragraph 87 and the case-law cited).

119 Taking into account that wide discretion, only the manifestly inappropriate nature of those measures, having regard to the objective pursued, may affect their lawfulness (see judgment of 15 March 2018, Deichmann, C‑256/16, EU:C:2018:187, paragraph 88 and the case-law cited).

120 In the present case, the objective of the contested regulation was to correct the aspects of Regulation No 1472/2006 and of Implementing Regulation No 1294/2009 which had led to them being declared invalid by the judgment of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74) (see recital 40 of the contested regulation).

121 As indicated in paragraphs 84 to 87 above, the Court of Justice has confirmed the Commission’s approach consisting in implementing the judgment of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74), first, by suspending temporarily, by Implementing Regulation 2016/223, the reimbursement of the anti-dumping duties imposed by the regulations declared invalid and, next, by reimposing, by means of replacement acts such as the contested regulation, those anti-dumping duties at the appropriate rate in the light of the examination of the MET and IT claims (see, to that effect, judgments of 15 March 2018, Deichmann, C‑256/16, EU:C:2018:187, paragraphs 68 to 71, and of 19 June 2019, C & J Clark International, C‑612/16, not published, EU:C:2019:508, paragraphs 48 and 49). Accordingly, the contested regulation, which is based on the same approach, is not manifestly inappropriate for achieving that objective.

122 Nor, in so far as it is limited to that reimposition of duties, as confirmed by the Court of Justice, does the contested regulation manifestly go beyond what is necessary to implement the judgment of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74).

123 That finding cannot be called into question by the applicant’s other arguments.

124 As regards the applicant’s argument that the Commission placed an unreasonable burden on the 70 Chinese and Vietnamese exporting producers listed in Annex II to the contested regulation, it suffices to note that, in order to remedy the illegality found by the Court of Justice in the judgment of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74), it was for the Commission to assess, in the light of the substantive provisions of Regulation No 384/96, whether their MET and IT claims satisfied the relevant criteria, namely those set out in Article 2(7)(b) and Article 9(5) of Regulation No 384/96 (see, to that effect and by analogy, judgment of 2 February 2012, Brosmann Footwear (HK) and Others v Council, C‑249/10 P, EU:C:2012:53, paragraph 32) (see paragraphs 84, 85 and 95 above).

125 Since those claims had already been submitted to the Commission in the context of the investigation which gave rise to the regulations declared invalid, that examination did not entail an additional administrative burden for the operators concerned.

126 The Court will examine the complaint concerning the absence of a verification visit or requests for additional information in paragraphs 145 to 156 below.

127 In so far as the applicant submits that the reimbursement of the anti-dumping duties imposed by the regulations declared invalid would be a less onerous measure, it should be noted that such reimbursement is not as capable of meeting the objective of implementing the judgment of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74) as the Commission’s approach of correcting the aspects that led to those regulations being declared invalid (see paragraph 120 above).

128 It is only the difference, if any, between the rate set by the regulations declared invalid and the correctly determined rate, depending on the MET and IT claims, which must, where appropriate, be reimbursed to the parties concerned (see paragraph 65 above). Full reimbursement of the anti-dumping duties, as advocated by the applicant, is therefore not required and would even run counter to the implementation of the judgment of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74), in so far as it would no longer allow the Commission to calculate such a difference. It follows that the portion of the anti-dumping duties that had been correctly imposed would also be reimbursed, which might therefore give rise to legitimate expectations on the part of the parties concerned that that portion could no longer be collected or reimposed in the future (see also paragraph 138 below). Accordingly, it must be concluded that, in so far as the contested regulation reimposes the applicable rate of duty, in accordance with the case-law of the Court of Justice (judgment of 15 March 2018, Deichmann, C‑256/16, EU:C:2018:187, paragraph 69), it does not manifestly go beyond what is necessary to achieve that objective.

129 As the Commission rightly submits, the complaint alleging an undue distinction drawn between the applicant and other EU importers concerns discrimination, which will be examined separately in paragraphs 131 to 143 below.

130 It follows that the applicant has not shown that the contested regulation was manifestly inappropriate for the purpose of implementing the judgment of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74). Accordingly, the complaint alleging breach of the principle of proportionality must be rejected as unfounded.

– The complaint alleging discrimination against the applicant as compared to other EU importers

131 First of all, it must be borne in mind that compliance with the principles of equality and non-discrimination requires that comparable situations must not be treated differently and that different situations must not be treated in the same way unless such treatment is objectively justified (see judgment of 20 March 2019, Foshan Lihua Ceramic v Commission, T‑310/16, EU:T:2019:170, paragraph 80 and the case-law cited).

132 Furthermore, the factors which distinguish different situations, and the question whether those situations are comparable, must be determined and assessed in the light of the subject matter of the provisions in question and of the aim pursued by them (see, to that effect, judgments of 7 March 2017, RPO, C‑390/15, EU:C:2017:174, paragraph 42 and the case-law cited, and of 19 December 2019, HK v Commission, C‑460/18 P, EU:C:2019:1119, paragraph 67 and the case-law cited).

133 It is in the light of those criteria that it is necessary to examine whether the applicant’s situation was comparable to that of EU importers which had purchased the products at issue from the five Chinese exporting producers concerned by the judgments of 2 February 2012, Brosmann Footwear (HK) and Others v Council (C‑249/10 P, EU:C:2012:53), and of 15 November 2012, Zhejiang Aokang Shoes v Council (C‑247/10 P, not published, EU:C:2012:710).

134 In the present case, the objective of the contested regulation is to correct the aspects of Regulation No 1472/2006 and of Implementing Regulation No 1294/2009 which had led to them being declared invalid by the judgment of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74) (see paragraph 120 above).

135 Since those aspects relate only to the failure to examine the MET or IT claims, the judgment of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74), did not affect the other findings of the anti-dumping proceeding relating to the products at issue (see paragraph 84 above).

136 The Commission was therefore entitled, after the reimbursement of the anti-dumping duties imposed by the regulations declared to be invalid had been suspended by Implementing Regulation 2016/223, to implement the judgment of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74), by examining the claims submitted by the exporting producers concerned and by fixing, by means of the contested regulation, the rate of the anti-dumping duty applicable to their exports of the products at issue (see paragraphs 85 and 86 above). As set out in paragraphs 104 and 112 above, the principles of legal certainty, non-retroactivity and the protection of legitimate expectations do not preclude the adoption of the contested regulation.

137 By contrast, following the judgments of 2 February 2012, Brosmann Footwear (HK) and Others v Council (C‑249/10 P, EU:C:2012:53), and of 15 November 2012, Zhejiang Aokang Shoes v Council (C‑247/10 P, not published, EU:C:2012:710), the corresponding customs duties were reimbursed by the competent national authorities to importers who had purchased footwear from the five exporting producers concerned by those judgments (see recital 5 of Implementing Decision 2014/149 and recital 10 of Implementing Regulation 2016/223).

138 The Council therefore took the view that the operators could legitimately expect that, upon expiry of the three-year time limit laid down by Article 221(3) of the Customs Code, applicable pursuant to Article 1(4) of the Regulation No 1472/2006, any reimposition of the debt would be time-barred and that, consequently, the debt would be extinguished. In addition, it considered, referring to the judgments of 23 February 2006, Molenbergnatie (C‑201/04, EU:C:2006:136, paragraph 41), and of 28 January 2010, Direct Parcel Distribution Belgium (C‑264/08, EU:C:2010:43, paragraph 43), that a retroactive derogation from Article 221(3) of the Customs Code, as proposed by the Commission, was precluded as it would infringe the legitimate expectations of the operators concerned (see recital 5 of Implementing Decision 2014/149).

139 Thus, the Council decided to reject the Commission’s proposal to adopt an implementing regulation reimposing a definitive anti-dumping duty and collecting definitely the provisional duty imposed on imports of the products at issue manufactured by the five exporting producers concerned, and terminated the proceedings against them (see Article 1 of Implementing Decision 2014/149; see also paragraph 12 above).

140 In view of those factual and legal differences, it must be found that the applicant was not in a situation comparable to that of the importers which had purchased the products at issue from the five exporting producers concerned by the judgments of 2 February 2012, Brosmann Footwear (HK) and Others v Council (C‑249/10 P, EU:C:2012:53), and of 15 November 2012, Zhejiang Aokang Shoes v Council (C‑247/10 P, not published, EU:C:2012:710), even though, both in those judgments and in the judgment of 4 February 2016, C & J Clark International and Puma (C‑659/13 and C‑34/14, EU:C:2016:74), which concerns the applicant, the Court of Justice found an infringement of the obligation to first examine the MET claims (see paragraphs 11 and 16 above).

141 In particular, Implementing Regulation 2016/223 – which precludes the immediate reimbursement of anti-dumping duties imposed by the regulations declared invalid (see paragraph 18 to 21 above) – constitutes, as is apparent from point 109 of the Opinion of Advocate General Campos Sánchez-Bordona in Deichmann (C‑256/16, EU:C:2017:580), a relevant factor which gave rise to those different factual and legal situations.

142 It must be noted that Implementing Regulation 2016/223 does not form part of the subject matter of the dispute in the present case and, in any event, was upheld by the Court of Justice in the judgment of 15 March 2018, Deichmann (C‑256/16, EU:C:2018:187).

143 Since those factual and legal situations already existed when the contested regulation was adopted, the fact that those situations were treated differently by that regulation does not constitute unequal treatment, having regard to the case-law set out in paragraph 131 above.

144 Accordingly, the complaint alleging unequal treatment or discrimination against the applicant as compared to the EU importers which purchased the products at issue from the five Chinese exporting producers concerned by the judgments of 2 February 2012, Brosmann Footwear (HK) and Others v Council (C‑249/10 P, EU:C:2012:53), and of 15 November 2012, Zhejiang Aokang Shoes v Council (C‑247/10 P, not published, EU:C:2012:710), must be rejected as unfounded.

– The complaint concerning the absence of a verification visit or a request for additional information

145 First, it must be recalled that, according to settled case-law, the institutions of the EU enjoy a broad discretion in the area of anti-dumping measures by reason of the complexity of the economic, political and legal situations which they have to examine. The judicial review of such an appraisal must therefore be limited to verifying whether the procedural rules have been complied with, whether the facts on which the contested choice is based have been accurately stated, and whether there has been a manifest error in the appraisal of those facts or a misuse of powers (see judgment of 4 September 2014, Simon, Evers & Co., C‑21/13, EU:C:2014:2154, paragraph 29 and the case-law cited).

146 Next, it is important to note that the Commission was, in the context of the resumption of the anti-dumping proceeding, including when examining the MET and IT claims submitted before it in order to determine the applicable rate of duty, required to comply with the substantive rules of Regulation No 384/96.

147 In that regard, it must be noted that, pursuant to Article 6(8) of Regulation No 384/96 (now Article 6(8) of the basic regulation), the Commission must examine, as far as possible, the information which is supplied by interested parties in the context of a claim for MET or IT for accuracy. Article 16(1) of Regulation No 384/96 (now Article 16(1) of the basic regulation) authorises the Commission to carry out a visit at the premises of an exporting producer in order to deal with its MET or IT claim and to satisfy itself as to the accuracy of the information supplied therein, if the Commission considers it necessary (see, to that effect, judgment of 25 October 2011, Transnational Company “Kazchrome” and ENRC Marketing v Council, T‑192/08, EU:T:2011:619, paragraphs 294 and 295).

148 As has previously been held, it is for the Commission to assess whether a verification visit is appropriate. Thus, and contrary to the applicant’s assertion, although such a visit may be appropriate in one anti-dumping investigation, that does not mean that it will be also necessary in another investigation and that the Commission cannot, in that other investigation, confine itself to a desk analysis (see, to that effect, judgment of 25 October 2011, Transnational Company “Kazchrome” and ENRC Marketing v Council, T‑192/08, EU:T:2011:619, paragraph 298).

149 Furthermore, it follows from the case-law that the burden of proof lies with the exporting producer wishing to claim MET or IT on the basis of Article 2(7)(b) or Article 9(5), respectively, of Regulation No 384/96 (see, to that effect, judgment of 2 February 2012, Brosmann Footwear (HK) and Others v Council, C‑249/10 P, EU:C:2012:53, paragraph 32).

150 In the light of the foregoing, in the present case, the Commission was not under any obligation to either carry out a verification at the premises of the 70 exporting producers concerned or send them letters requesting additional information. Since the Commission evaluated the information submitted to it in the light of the criteria set out in Article 2(7)(c) and Article 9(5) of Regulation No 384/96, as is apparent from recitals 51 to 56 and 64 to 69 of the contested regulation, it fulfilled its obligations and acted within the limits of its broad discretion referred to in paragraph 145 above.

151 In particular, the Commission’s assessment set out in recitals 51 to 56 and 64 to 69 of the contested regulation, according to which the exporting producers concerned were not able to demonstrate that they fulfilled those criteria, appears sufficiently plausible. Accordingly, those findings are not vitiated by a manifest error of assessment.

152 That finding cannot be invalidated by the applicant’s assertion that the Commission did not follow its decision-making practice of sending exporting producers requests for additional information. In accordance with the case-law cited in paragraph 110 above, the lawfulness of a regulation imposing anti-dumping duties must be assessed in the light of legal rules, in particular the provisions of the basic regulation, not on the basis of such a practice.

153 Moreover, the two anti-dumping proceedings cited by the applicant in its written pleadings, namely those leading to the adoption, first, of Commission Regulation (EC) No 426/2005 of 15 March 2005 on imposing a provisional anti-dumping duty on imports of certain finished polyester filament apparel fabrics originating in the People’s Republic of China (OJ 2005 L 69, p. 6) and, second, of Council Regulation (EC) No 1212/2005 of 25 July 2005 imposing a definitive anti-dumping duty on imports of certain castings originating in the People’s Republic of China (OJ 2005 L 199, p. 1), are not sufficient to demonstrate an established decision-making practice.

154 On the contrary, those two proceedings even contradict the applicant’s assertions concerning the need to carry out on-the-spot verifications since, in those proceedings, as is apparent from recital 19 of Regulation No 426/2005 and recital 35 of Regulation No 1212/2005, on-the-spot investigations had been carried out only at the premises of a very small number of companies, in view of the large number of companies concerned.

155 Consequently, the assertion that the rights of defence of the exporting producers concerned and their right to a fair trial were not respected is ineffective and, at the very least, unfounded, since it is based on the incorrect premiss that a verification visit and a request for additional information were necessary in the present case.

156 In any event, the applicant cannot rely on the infringement of the rights of defence of the exporting producers which participated in the anti-dumping investigation procedure. As its complaint does not relate to its own situation, its potential justification cannot lead to the annulment of the contested regulation in so far as it relates to the applicant. Therefore, the applicant has no legal interest in raising that complaint (see, to that effect, judgments of 10 September 2015, Fliesen-Zentrum Deutschland, C‑687/13, EU:C:2015:573, paragraph 73; of 28 February 2017, JingAo Solar and Others v Council, T‑157/14, not published, EU:T:2017:127, paragraphs 64 to 72; and of 11 September 2018, Foshan Lihua Ceramic v Commission, T‑654/16, EU:T:2018:525, paragraph 35).

157 Accordingly, the complaint concerning the absence of a verification visit and a request for additional information must be rejected as unfounded.

– The complaint concerning the collection of the anti-dumping duties reimposed by the contested regulation

158 In so far as the applicant submits that the collections of the duties reimposed on the imports of the products at issue is no longer possible, it suffices to refer to the considerations set out in paragraphs 68 to 71 above.

159 Since, according to those considerations, it is the national authorities and courts which are required to give a final ruling, when applying the rules of the Customs Code, on applications for repayment and to verify on a case-by-case basis whether such repayment must be granted, the Court does not have jurisdiction to rule on the complaint relating to the collection of the anti-dumping duties reimposed by the contested regulation. It must therefore be rejected.

161 Consequently, the present action must be dismissed in its entirety, without it being necessary to rule on the admissibility of Annex D.1 to the reply and of the observations on the rejoinder contained in the response to the Court’s question of 9 October 2020, including Annex G.1 to those observations. Since those documents were submitted in support of the applicant’s arguments relating to the treatment of the repayment claims and the communication of the debt, issues which fall within the competence of the national customs authorities (see paragraphs 71 and 159 above), they are not relevant for the resolution of the present dispute.

162 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Roland v Commission (Dumping - Imports of footwear with uppers of leather originating in China and Vietnam - Judgment) [2021] EUECJ T-132/18 (09 June 2021) URL: http://www.bailii.org/eu/cases/EUECJ/2021/T13218.html Cite as: ECLI:EU:T:2021:329, EU:T:2021:329, [2021] EUECJ T-132/18

Court of Justice of the European Communities (including Court of First Instance Decisions)