Case C‑592/17

Skatteministeriet

v

Baby Dan A/S

(Request for a preliminary ruling from the Vestre Landsret)

(Reference for a preliminary ruling — Common Customs Tariff — Combined Nomenclature — Tariff classification — Headings and subheadings 4421, 7326, 73181590, 73181900 and 94039010 — Article specially designed to mount child safety gates — Dumping — Validity of Regulation (EC) No 91/2009 — Imports of certain iron or steel fasteners originating in China — World Trade Organisation (WTO) Anti-Dumping Agreement — Regulation (EC) No 384/96 — Article 3(2) and Article 4(1) — Definition of Community industry)

Summary — Judgment of the Court (Ninth Chamber), 15 November 2018

1. Customs union — Common Customs Tariff — Tariff headings — Article which allows a moveable child safety gate to be mounted to a wall or a door frame — Classification under subheading 90211090 of the Combined Nomenclature

   (Council Regulation No 2658/87, Annex I)

2. International agreements — Agreement establishing the World Trade Organisation — GATT 1994 — Not possible to invoke WTO agreements to challenge the legality of an EU measure — Exceptions — EU measure intended to ensure its implementation or referring thereto expressly and precisely — None

   (Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade, ‘1994 Anti-Dumping Agreement’, Council Regulations No 384/96, as amended by Regulation No 461/2004, Recital 5, No 1515/2001, Art. 1, No 91/2009, No 924/2012 and No 2016/278)

3. Common commercial policy — Protection against dumping — Injury — Concept of Community industry — Discretion of the Commission — Definition of Community industry — Limitation to producers having supported the complaint at the origin of the anti-dumping investigation — Lawfulness

   (Council Regulation No 384/96, as amended by Regulation No 461/2004, Arts 4(1) and 5(4))

1.  The Combined Nomenclature listed in Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, in the versions resulting, successively, from Commission Regulation (EC) No 1214/2007 of 20 September 2007, and from Commission Regulation (EC) No 1031/2008 of 19 September 2008, must be interpreted as meaning that an article, such as that at issue in the main proceedings, which allows a movable child safety gate to be mounted to a wall or a door frame, does not constitute part of those gates and must be classified under subheading 73181590 of the Combined Nomenclature.

   In the judgment of 11 June 2015, Baby Dan (C‑272/14, not published, EU:C:2015:388, paragraphs 29 to 40), the Court considered that the characteristics and objective properties of the article at issue allowed it to be classified under CN heading 7318 as ‘screws, bolts, nuts, coach screws, … and similar articles, of iron or steel’. It should be noted that, solely because of that classification in CN heading 7318, that article constitutes a ‘part of general use’ within the meaning of Note 2(a) to CN Section XV. It follows that the classification of the article at issue under CN heading 7318 precludes, in accordance with that Note 2(a), the classification of that article as a ‘part’ of another product, here, a child safety gate (see, by analogy, judgment of 12 December 2013, HARK, C‑450/12, EU:C:2013:824, paragraph 40).

   Since the article in issue is a screw or bolt that cannot be described as ‘coach screws or other wood screws’, or ‘screw hooks and screw rings’ or ‘self-tapping screws’, that article is to be classified under one of the subheadings of CN subheading 731815. Since the article at issue has a head which is not ‘slotted’, ‘cross-recessed’ or ‘hexaganol’, it should be classified under CN subheading 73181590, entitled ‘Others’.

   (see paras 47, 52, 53, 61, 62, operative part 1)

2.  Examination of the fourth question referred has not revealed any factors of such a kind as to affect the validity of Council Regulation (EC) No 91/2009 of 26 January 2009 imposing a definitive anti-dumping duty on imports of certain iron or steel fasteners originating in the People’s Republic of China.

   Firstly, it should be recalled that, having regard to the provisions of the WTO enabling Regulation and, in particular, Article 1 thereof, as well as to the recommendations of the DSB, the Council adopted Implementing Regulation No 924/2012, which, while confirming the injurious dumping determined in the original investigation, amended certain anti-dumping duties from the date of entry into force of that regulation. Accordingly, in so far as, in the light of the implementing regulations subsequent to the contested regulation, namely Implementing Regulations No 924/2012 and 2016/278, the Union excluded repayment of anti-dumping duties paid under the contested regulation, it should be considered that it did not in any way intend to give effect to a specific obligation assumed in the context of the WTO (see, by analogy, judgment of 27 September 2007, Ikea Wholesale, C‑351/04, EU:C:2007:547, paragraph 35).

   Second, although it is true that recital 5 of the Basic Regulation states that the language of the Anti-Dumping Agreement should be brought into EU legislation ‘as far as possible’, that expression must be understood as meaning that, even if the EU legislature intended to take into account the rules of the Anti-Dumping Agreement when adopting the Basic Regulation, it did not, however, show the intention of transposing all of those rules in that regulation (judgments of 16 July 2015, Commission v Rusal Armenal, C‑21/14 P, EU:C:2015:494, paragraph 52, and of 4 February 2016, C & J Clark International and Puma, C‑659/13 and C‑34/14, EU:C:2016:74, paragraph 90).

   (see paras 69, 71, 72, operative part 2)

3.  Article 4(1) of the Basic Regulation defines the concept of ‘Community industry’ by reference to ‘the Community producers as a whole of the like products’, or to ‘those of [those producers] whose collective output of the products constitutes a major proportion, as defined in Article 5(4), of the total Community production of those products’. That last provision states, inter alia, that no investigation is to be initiated when Community producers expressly supporting the complaint account for less than 25% of total production of the like product produced by the Community industry. In that regard, the Court has already held that the 25% threshold refers to ‘total production of the like product produced by the Community industry’ and relates to the percentage of Community producers out of that total production which support the complaint. By the reference to that threshold, Article 4(1) of the Basic Regulation thus simply makes clear that a combined output of the Community producers supporting the complaint and not reaching 25% of the total Community production of the like product cannot, in any event, be regarded as sufficiently representative of the Community production. It follows that the definition of the Community industry within the meaning of Article 4(1) of the Basic Regulation may be limited only to those Community producers having supported the complaint at the origin of the anti-dumping investigation.

   (see paras 78-81)