Joined Cases C‑376/15 P and C‑377/15 P

Changshu City Standard Parts Factory
and
Ningbo Jinding Fastener Co. Ltd

v

Council of the European Union

(Appeal — Dumping — Implementing Regulation (EU) No 924/2012 — Imports of certain iron or steel fasteners originating in the People’s Republic of China — Regulation (EC) No 1225/2009 — Article 2(10) and (11) — Exclusion of certain export transactions for the purposes of calculating the dumping margin — Fair comparison between the export price and the normal value in the case of imports from a non-market economy country)

Summary — Judgment of the Court (Fourth Chamber), 5 April 2017

1. Judicial proceedings—Objection of lis pendens—Identical parties, subject matter and submissions in two appeals—Inadmissibility of the appeal lodged subsequently

2. Common commercial policy—Protection against dumping—Discretion of the institutions—Judicial review—Limits

   (Council Regulation No 1225/2009, Art. 2(11))

3. Common commercial policy—Protection against dumping—Dumping margin—Discretion of the institutions—Comparison between the normal value and the export price—Lack of comparable prices for certain types of the product under consideration—Exclusion of said types from the calculation of the dumping margin—Not permissible

   (Council Regulation No 1225/2009, Arts 1 and 2(10) and (11))

1.  See the text of the decision.

   (see paras 28-31)

2.  See the text of the decision.

   (see para. 47)

3.  It follows from Article 1 (‘Principles’) of Anti-Dumping Basic Regulation No 1225/2009 that the anti-dumping investigation concerns a specific product called ‘the product under consideration’, defined by the EU institutions at the time the investigation is initiated. That definition of ‘the product under consideration’, however, does not prevent the EU institutions from subdividing the product into individual product types or models or from relying, for the purposes of calculating the dumping margin, on model-by-model or type-by-type comparisons between the normal value and the export price.

   By contrast, in the light of its wording, objective and context, Article 2(11) of the Basic Regulation cannot be interpreted as allowing export transactions to the European Union relating to certain types of the product under consideration to be excluded from the calculation of the dumping margin. On the contrary, it follows from that provision that the EU institutions are required to take into account all those transactions for the purposes of that calculation.

   It follows that, in the absence of ‘comparable prices’, where a fair comparison cannot be made between the normal value and the export price of certain types of the product under consideration covered by the dumping investigation, the EU institutions may either decide to exclude that product type from the definition of ‘the product under consideration’ or, in accordance with Article 2(10) of the Basic Regulation, construe the normal value for that product type so as to take into consideration export transactions of that same product type for the purposes of calculating the dumping margin.

   (see paras 56, 59, 61, 67, 70)