Brosmann Footwear (HK) Ltd and Others v Council of the European Union.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Arestis
• ECLI: ECLI:EU:C:2012:53
• Date: 02 February 2012
• Docket Number: C-249/10
• Procedure Type: Recurso de casación - fundado

JUDGMENT OF THE COURT (Third Chamber)

2 February 2012 ( *1 )

‛Appeal — Dumping — Regulation (EC) No 1472/2006 — Imports of certain footwear with uppers of leather originating in China and Vietnam — Regulation (EC) No 384/96 — Articles 2(7), 9(5) and 17(3) — Market economy treatment — Individual treatment — Sampling’

In Case C-249/10 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 18 May 2010,

Brosmann Footwear (HK) Ltd, established in Kowloon (China),

Seasonable Footwear (Zhongshan) Ltd, established in Zhongshan (China),

Lung Pao Footwear (Guangzhou) Ltd, established in Guangzhou (China),

Risen Footwear (HK) Co. Ltd, established in Kowloon,

represented by L. Ruessmann, A. Willems, S. De Knop and C. Dackö, avocats,

appellants,

the other parties to the proceedings being:

Council of the European Union, represented by J.-P. Hix and R. Szostak, acting as Agents, and by G. Berrisch, Rechtsanwalt, and N. Chesaites, Barrister,

defendant at first instance,

European Commission, represented by T. Scharf and H. van Vliet, acting as Agents,

Confédération européenne de l’industrie de la chaussure (CEC),

interveners at first instance,

THE COURT (Third Chamber),

composed of K. Lenaerts, President of the Chamber, J. Malenovský, R. Silva de Lapuerta, G. Arestis (Rapporteur) and D. Šváby, Judges,

Advocate General: P. Mengozzi,

Registrar: C. Strömholm, Administrator,

having regard to the written procedure and further to the hearing on 25 May 2011,

after hearing the Opinion of the Advocate General at the sitting on 6 September 2011,

gives the following

Judgment

1 By their appeal, Brosmann Footwear (HK) Ltd (‘Brosmann’), Seasonable Footwear (Zhongshan) Ltd, Lung Pao Footwear (Guangzhou) Ltd (‘Lung Pao’) and Risen Footwear (HK) Co. Ltd claim that the Court should set aside the judgment of the General Court of the European Union of 4 March 2010 in Case T-401/06 Brosmann Footwear (HK) and Others v Council [2010] ECR II-671, (‘the judgment under appeal’), by which that court dismissed their action for the partial annulment of Council Regulation (EC) No 1472/2006 of 5 October 2006 imposing a definitive anti-dumping duty and collecting definitely the provisional duty imposed on imports of certain footwear with uppers of leather originating in the People’s Republic of China and Vietnam (OJ 2006 L 275, p. 1, ‘the contested regulation’).

Legal framework

2 The provisions governing the application of anti-dumping measures by the European Union (‘EU’) are set out in Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (OJ 1996 L 56, p. 1), as amended by Council Regulation (EC) No 461/2004 of 8 March 2004 (OJ 2004 L 77, p. 12, ‘the basic regulation’).

3 As regards the conditions for the grant of market economy treatment (‘MET’), Article 2(7) of the basic regulation provides: (a) In the case of imports from non-market economy countries …, normal value shall be determined on the basis of the price or constructed value in a market economy third country, or the price from such a third country to other countries, including the Community, or where those are not possible, on any other reasonable basis, including the price actually paid or payable in the Community for the like product, duly adjusted if necessary to include a reasonable profit margin. An appropriate market economy third country shall be selected in a not unreasonable manner, due account being taken of any reliable information made available at the time of selection. Account shall also be taken of time-limits; where appropriate, a market economy third country which is subject to the same investigation shall be used. The parties to the investigation shall be informed shortly after its initiation of the market economy third country envisaged and shall be given 10 days to comment. (b) In anti-dumping investigations concerning imports from … the People’s Republic of China, normal value will be determined in accordance with paragraphs 1 to 6, if it is shown, on the basis of properly substantiated claims by one or more producers subject to the investigation … that market economy conditions prevail for this producer or producers in respect of the manufacture and sale of the like product concerned. When this is not the case, the rules set out under subparagraph (a) shall apply. (c) A claim under subparagraph (b) must be made in writing and contain sufficient evidence that the producer operates under market economy conditions, that is if: — decisions of firms regarding prices, costs and inputs, including for instance raw materials, cost of technology and labour, output, sales and investment, are made in response to market signals reflecting supply and demand, and without significant State interference in this regard, and costs of major inputs substantially reflect market values, — firms have one clear set of basic accounting records which are independently audited in line with international accounting standards and are applied for all purposes, — the production costs and financial situation of firms are not subject to significant distortions carried over from the former non-market economy system, in particular in relation to depreciation of assets, other write-offs, barter trade and payment via compensation of debts, — the firms concerned are subject to bankruptcy and property laws which guarantee legal certainty and stability for the operation of firms, and — exchange rate conversions are carried out at the market rate. A determination whether the producer meets the abovementioned criteria shall be made within three months of the initiation of the investigation, after specific consultation of the Advisory Committee and after the Community industry has been given an opportunity to comment. This determination shall remain in force throughout the investigation.’

4 Article 3 of the basic regulation, entitled ‘Determination of injury’, provides in paragraphs 1, 2 and 7 thereof as follows: ‘1. Pursuant to this Regulation, the term “injury” shall, unless otherwise specified, be taken to mean material injury to the Community industry, threat of material injury to the Community industry or material retardation of the establishment of such an industry and shall be interpreted in accordance with the provisions of this Article. 2. A determination of injury shall be based on positive evidence and shall involve an objective examination of both (a) the volume of the dumped imports and the effect of the dumped imports on prices in the Community market for like products; and (b) the consequent impact of those imports on the Community industry. … 7. Known factors other than the dumped imports which at the same time are injuring the Community industry shall also be examined to ensure that injury caused by these other factors is not attributed to the dumped imports under paragraph 6. Factors which may be considered in this respect include the volume and prices of imports not sold at dumping prices, contraction in demand or changes in the patterns of consumption, restrictive trade practices of, and competition between, third country and Community producers, developments in technology and the export performance and productivity of the Community industry.’

5 As regards the conditions for the initiation of an anti-dumping investigation, Article 5(2) to (4) of the basic regulation provides: ‘2. A complaint under paragraph 1 shall include evidence of dumping, injury and a causal link between the allegedly dumped imports and the alleged injury … ... 3. The Commission shall, as far as possible, examine the accuracy and adequacy of the evidence provided in the complaint to determine whether there is sufficient evidence to justify the initiation of an investigation. 4. An investigation shall not be initiated pursuant to paragraph 1 unless it has been determined, on the basis of an examination as to the degree of support for, or opposition to, the complaint expressed by Community producers of the like product, that the complaint has been made by or on behalf of the Community industry. The complaint shall be considered to have been made by or on behalf of the Community industry if it is supported by those Community producers whose collective output constitutes more than 50% of the total production of the like product produced by that portion of the Community industry expressing either support for or opposition to the complaint. However, no investigation shall 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.’

6 Under Article 9(5) and (6) of the basic regulation: ‘5. An anti-dumping duty shall be imposed in the appropriate amounts in each case, on a non-discriminatory basis on imports of a product from all sources found to be dumped and causing injury, except as to imports from those sources from which undertakings under the terms of this Regulation have been accepted. The Regulation imposing the duty shall specify the duty for each supplier or, if that is impracticable, and in general where Article 2(7)(a) applies, the supplying country concerned. Where Article 2(7)(a) applies, an individual duty shall, however, be specified for the exporters which can demonstrate, on the basis of properly substantiated claims that: (a) in the case of wholly or partly foreign owned firms or joint ventures, exporters are free to repatriate capital and profits; (b) export prices...