31.10.2016   

EN

Official Journal of the European Union

C 402/22

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set aside the judgment of the General Court of 9 June 2016, notified to the Council on 10 June 2016, in Case T-277/13 Marquis Energy v Council of the European Union;

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reject the application at first instance brought by Marquis Energy for the annulment of the Contested Regulation (1);

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order Marquis Energy to pay the Council’s costs both at first instance and on appeal.

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refer the case back to the General Court for reconsideration;

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reserve the costs of the proceedings at first instance and on appeal in case of referral back to the General Court.

a.

First, the General Court takes the view that for finding direct concern, it is sufficient that the Applicant is a producer of bioethanol. However, this finding on direct effect cannot be reconciled with established case-law which rejects direct effect on the basis of purely economic consequences.

b.

Second, it is not clear how the mere fact that the Applicant has sold its bioethanol to domestic traders/blenders, which was subsequently resold domestically or exported by the domestic traders/blenders in significant quantities to the Union, prior to the imposition of duties, would substantially affect their market position. In order to show a substantial affectation of its market position by virtue of the introduction of the duties, it would have been necessary, at the very least, for the Applicant to establish the impact of the duties on the level of imports into the Union following the imposition of the anti-dumping duties. However, the Applicant did not provide any information in that regard, and the Contested Judgment does not contain any finding on that point either. This is both an error of law in the application of the test for individual concern, as well as a failure to state reasons.

a.

First, the General Court has wrongly interpreted the Basic Regulation when it considers that Article 9(5) of the Basic Regulation implements both Article 9.2 and Article 6.10 of the AD Agreement. On the one hand, as can be seen from the wording of Article 9(5) of the Basic Regulation, the latter provision does not deal with the question of sampling. On the other hand, Article 6.10 of the AD Agreement is implemented by Article 17 and Article 9(6) of the Basic Regulation, and not by Article 9(5) of the Basic Regulation.

b.

Second, the General Court has wrongly interpreted the term ‘supplier’ in Article 9(5) of the Basic Regulation and Article 9.2 of the AD Agreement. It follows from the logic and general scheme of Article 9(5) that only a ‘source found to be dumped and causing injury’ can be a supplier. However, as the US producers had no export price, they could not have been charged with dumping. Consequently, the General Court erred in law by qualifying them as ‘suppliers’ in the sense of Article 9(5) of the Basic Regulation and Article 9.2 of the AD Agreement.

c.

Third, the General Court has wrongly interpreted the term ‘impracticable’ in Article 9(5) of the Basic Regulation and Article 9.2 of the AD Agreement, by relying on an erroneous interpretation of Article 9(5) of the Basic Regulation in light of Article 6.10 of the AD Agreement, as well as on the Appellate Body report in EC — Fasteners (3). The latter report only deals with Article 9.2 of the AD Agreement and hence its examination of the term ‘impracticable’ only relates to the situation and treatment that Article 9(5) of the Basic Regulation provides for exporters in non-market economies. The Appellate Body therefore did not provide an interpretation of ‘impracticable’ that could be transposed to the current proceedings which do not concern exporters in nonmarket economies.