Commercial policy – dumping – legality of EU institutions’ acts according to WTO rules – Decision T-84/2007

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On 18 September 2000, the Council of the European Union adopted Regulation (EC) No 1995/2000 imposing a definitive anti-dumping duty and collecting definitively the provisional duties imposed on imports of solutions of urea and ammonium nitrate originating in Algeria, Belarus, Lithuania, Russia and Ukraine, and terminating the anti-dumping proceeding in respect of imports originating in the Slovak Republic. The measures imposed on imports of solutions of urea and ammonium nitrate (‘solutions of UAN’ or ‘the product concerned’) originating in Lithuania lapsed after the enlargement of the European Union (‘EU’) on 1 May 2004.

On 20 June 2005, a request for an expiry review pursuant to Article 11(2) of the basic anti-dumping regulation (Regulation 384/96) was lodged with the Commission of the European Communities following the publication on 17 December 2004 of a notice of impending expiry of certain anti-dumping and countervailing measures. This request was lodged by the European Fertiliser Manufacturers Association. Having determined, after consulting the Advisory Committee, that sufficient evidence existed for the initiation of an expiry review of the anti-dumping measures applicable to imports of solutions of UAN originating in Algeria, Belarus, Russia and Ukraine, the Commission published, on 22 September 2005, a notice of initiation of an expiry review of those measures, pursuant to Article 11(2) of the basic regulation.

The Council adopted Council Regulation (EC) No 1911/2006 imposing a definitive anti‑dumping duty on imports of solutions of [UAN] originating in Algeria, Belarus, Russia and Ukraine following an expiry review pursuant to Article 11(2) of the basic regulation. According to the contested regulation, the Council decided to maintain the anti-dumping measures applicable to imports of UAN originating, inter alia, in Russia. In that regard, the Council imposed a definitive anti-dumping duty on imports of mixtures of urea and ammonium nitrate in aqueous or ammoniacal solution originating, inter alia, in Russia. The applicant, an exporting producer in Russia, is one of the undertakings concerned by that anti-dumping duty.

According to the Court, when the Council and the Commission, acting under the basic regulation, adopt specific protective measures against dumping, they enjoy a wide discretion by reason of the complexity of the economic, political and legal situations they have to examine. It follows that review of such assessments by the Courts of the Union must be limited to verifying whether the relevant procedural rules have been complied with, whether the facts on which the contested choice is based have been accurately stated and whether there has been a manifest error of assessment of the facts or a misuse of power.

In that connection, it is apparent from settled case-law that, in view of their nature and structure, the WTO agreements are not in principle among the rules in the light of which the Courts of the European Union are to review the legality of measures of the EU institutions under the first paragraph of Article 230 EC. However, where the European Union intended to implement a particular obligation assumed in the context of the WTO, or where the EU measure refers expressly to precise provisions of the WTO agreements, it is for the Courts of the European Union to review the legality of the EU measure in question in the light of the WTO rules

It is apparent from recital 5 to the basic regulation that the purpose of that regulation is, inter alia, to transpose into EU law as far as possible the new and detailed rules contained in the 1994 Anti‑Dumping Agreement, which include, in particular, those relating to the calculation of the dumping margin, so as to ensure a proper and transparent application of those rules. The Community therefore adopted the basic regulation in order to satisfy its international obligations arising from the 1994 Anti‑Dumping Agreement and, by means of Article 2(5) of that regulation, it intended to implement the particular obligations laid down by Article 2.2.1.1. of the 1994 Anti-Dumping Agreement. It follows that Article 2(5) of the basic regulation must, so far as possible, be interpreted in the light of Article 2.2.1.1 of the 1994 Anti‑Dumping Agreement.

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