Case T‑435/15

Kolachi Raj Industrial (Private) Ltd

v

European Commission

(Dumping — Import of bicycles consigned from Cambodia, Pakistan and the Philippines — Extension to those imports of the definitive anti-dumping duty imposed on imports of bicycles originating in China — Implementing Regulation (EU) 2015/776 — Article 13(2)(a) and (b) of Regulation (EC) No 1225/2009 — Assembly operations — Provenance and origin of bicycle parts — Certificates of origin — Insufficient evidentiary value — Manufacturing costs of bicycle parts)

Summary — Judgment of the General Court (Seventh Chamber), 10 October 2017

1. Actions for annulment — Natural or legal persons — Measures of direct and individual concern to them — Absolute bar to proceeding — Implementing Regulation extending an anti-dumping duty — Manufacturing and exporting undertakings identified in the regulation or concerned by the preliminary investigations — Admissibility

   (Art. 263, fourth para., TFEU; Commission Regulation No 2015/776)

2. Actions for annulment — Jurisdiction of the EU judicature — Substitution of an institution’s grounds for a decision — Not permissible

   (Arts 263 TFEU and 264 TFEU)

3. Common commercial policy — Protection against dumping — Circumvention — Assembly operation — Parts, constituting 60% or more of the total value of the parts of the assembled product, originated in a country subject to measures — Extension of anti-dumping duty — Use of parts imported from a third country — Determination of the origin of the parts used

   (Council Regulation No 1225/2009, Art. 13(1) and (2))

4. Common commercial policy — Protection against dumping — Circumvention — Assembly operation — Parts, constituting 60% or more of the total value of the parts of the assembled product, originated in a country subject to measures — Extension of anti-dumping duty — Use of parts imported from a third country — Evidentiary value of the (Form A) certificates of origin used to show the origin of the parts used

   (Commission Regulation No 2454/93, Art. 97k; Council Regulation No 1225/2009, Arts 6(8), 13(1) and (2), and (18))

1.  See the text of the decision.

   (see paras 50-55)

2.  See the text of the decision.

   (see paras 64-66, 68)

3.  As a preliminary point, it must be recalled that, under Article 13(1) of the basic antidumping regulation No 1225/2009, anti-dumping duties imposed pursuant to that regulation may be extended to imports from third countries of like products, slightly modified or not, or parts thereof, when circumvention of the measures in force is taking place. Article 13(2) of that regulation provides that an assembly operation is to be considered to circumvent the measures in force where the conditions set out in subparagraphs (a) to (c) are satisfied. More particularly, it follows from Article 13(2)(a) and (b) of that regulation that an assembly operation is to be deemed to constitute circumvention where parts having a value of 60% or more of the total value of the parts of the assembled product are from the country subject to measures.

   In that context, Article 13(2) of the basic regulation must be interpreted as meaning that an assembly operation in the Community or in a non-member country is to be regarded as circumventing the measures in force where, as well as satisfying the other conditions referred to in that provision, the parts constituting 60% or more of the total value of the parts of the assembled product are from countries subject to the measures, unless the trader concerned provides the Community institutions with proof that those parts originated in another country. Such proof may be provided in different situations, and not just in the case of a transhipment.

   It follows that, as a general rule, although it is sufficient to refer simply to where the parts used for assembling the final product are ‘from’ for the purposes of applying Article 13(2)(b) of the basic regulation, it may be necessary, in case of doubt, to verify whether the parts ‘from’ a third country in actual fact originate in another country. It follows that the term ‘are from’, for the purposes of Article 13(2)(a) of the basic regulation, must be understood as referring to the imports concerned and, therefore, the export country.

   As regards determining whether the parts from a third country, in fact, originate from another country, such as the country subject to measures, the Commission cannot apply Article 13(2)(b) of the basic regulation ‘by analogy’ in order to determine the origin of those parts. Article 13(2)(b) does not constitute a rule of origin and the criteria laid down by that article are substantially different from those relating to the rules of origin.

   (see paras 77, 78, 81-84, 87, 112, 114)

4.  Under Article 97k(1) of Regulation No 2454/93 laying down provisions for the implementation of Regulation No 2913/92 establishing the Community Customs Code, it falls to the beneficiary country to comply or to ensure compliance with the rules of origin and with the rules for completion and issue of ‘Form A’ certificates of origin. The ‘Form A’ certificates of origin are preferential certificates of origin, which enable the exporter to prove the origin of the product which he is exporting.

   Nevertheless, although the ‘Form A’ certificates of origin have evidentiary value in relation to the origin of the goods to which they relate, that is not absolute. Such a certificate, completed by a third country, cannot bind the Union authorities with regard to the origin of those goods by preventing them from verifying the origin by other means where there is objective, sound and consistent evidence creating a doubt as to the true origin of the goods covered by those certificates. In that regard, it is clear from the case-law that the verifications carried out after importation would in large measure be deprived of their usefulness if the use of such certificates could, of itself, justify granting a remission of customs duties.

   As regards the production, in the context of a procedure seeking to extend a definitive anti-dumping duty to assembly operations circumventing the measures in force, of ‘Form A’ certificates of origin to prove the origin of the parts used in the assembly operations covered, it is clear, in addition, from Article 6(8) of the basic antidumping regulation No 1225/2009 that, except in the circumstances provided for in Article 18 of that regulation, relating to non-cooperation, the information which is supplied by interested parties and upon which the Commission intends to base its findings must be examined for accuracy as far as possible. Accordingly, that provision, in like manner, justifies, not only the possibility, but also the duty on the part of the Commission to verify the documents submitted to it. Understandably, that duty, as far as anti-dumping is concerned, is to be performed without prejudice to the specific procedures laid down for that purpose in favour of the customs authorities.

   (see paras 95, 98, 99)