Keywords
Summary

Keywords

1. Actions for annulment - Natural or legal persons - Measures of direct and individual concern to them - Direct concern - Criteria - Regulation extending an anti-dumping duty

(EC Treaty, Art. 173, fourth para. (now, after amendment, Art. 230 EC, fourth para.); Council Regulation No 384/96, Art. 13(3) and (4))

2. Community law - Interpretation - Texts in several languages - Uniform interpretation - Taking into consideration of the various language versions and, in the case of divergence, of the purpose and general scheme of the rules at issue

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

(Council Regulation No 384/96, Art. 13(2))

4. Common commercial policy - Protection against dumping - Circumvention - Assembly operation - Right of the institutions to require production of certificates of origin - Limits

(Council Regulation No 384/96, Art. 13)

Summary

1. For a person to be directly concerned for the purposes of the fourth paragraph of Article 173 of the Treaty (now, after amendment, the fourth paragraph of Article 230 EC), the impugned Community measure 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 Community rules with the application of other intermediate rules.

A regulation extending a definitive anti-dumping duty directly affects the legal situation of an undertaking whose imports are subject to the extended duty where it follows from Article 13(3) of the basic anti-dumping regulation No 384/96, and from the regulation extending that duty, that the extended duty is to be collected by the customs authorities of the Member States, who have no discretion, and where the undertaking was exempted from the extended duty by the Commission only after significantly altering its supply procedure.

That conclusion is not invalidated by the fact that the regulation extending the duty provides that imports not constituting circumvention of the initial duty may, on certain conditions, be exempted from the extended duty, with retroactive effect to the date of the entry into force of the regulation initiating the investigation, by an act of the Commission, where it is apparent from the preamble to that regulation that, following an examination, the Commission had already considered that the undertaking concerned did not satisfy those conditions and that, consequently, the Commission's intention not to grant an exemption to that undertaking for the period preceding the date of adoption of the regulation extending the duty was not in doubt.

( see paras 61-68 )

2. The need for a uniform interpretation of Community regulations means that a particular provision should not be considered in isolation but in cases of doubt should be interpreted and applied in the light of the other official languages. Moreover, in the case of divergence between language versions, the provision in question must be interpreted by reference to the purpose and general scheme of the rules of which it forms part.

( see para. 81 )

3. Article 13(2) of the basic anti-dumping regulation No 384/96 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.

( see para. 88 )

4. In the context of an investigation into the circumvention of anti-dumping measures, there is nothing in principle to prevent the Community institutions from requesting importers, in the interests of administrative efficiency, to produce certificates of origin, even in the absence of a legal obligation, in order to prove the accuracy of the information given in their customs declarations, with a view to ensuring that the objective of Article 13 of the basic anti-dumping regulation No 384/96, namely to thwart circumvention, is attained.

However, the Community institutions cannot, without infringing Article 13(2) of the basic anti-dumping regulation No 384/96, require certificates of origin to the exclusion of any other means of proof where they are or should be aware that some of the traders concerned are unable to produce such certificates for reasons beyond their control. In those specific circumstances, such a requirement would be contrary to the principles of legal certainty and respect for the rights of defence, in so far as it makes it impossible, in a dispute likely to lead to the imposition of a pecuniary charge, to prove that such a charge does not fall to be imposed. In such specific circumstances, to refuse other means of proof is tantamount to denying the defending party the right to produce exculpatory documents (ultra posse nemo tenetur).

In those circumstances, moreover, the requirement of such evidence is not an appropriate means of attaining the objective pursued, namely to thwart circumvention of the duty initially imposed. The requirement of proof that is impossible to furnish may have the consequence that the application of the extended duty is not limited solely to imports of parts in circumstances constituting circumvention of the duty within the meaning of Article 13 of the basic anti-dumping regulation No 384/96. Such a requirement would therefore also be contrary to the principle of proportionality.

( see paras 111-113 )