Petrotub SA and Republica SA v Council of the European Union.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: La Pergola
• ECLI: ECLI:EU:C:2003:4
• Date: 09 January 2003
• Docket Number: C-76/00
• Procedure Type: Recurso de anulación

Case C-76/00 P


Petrotub SA and Republica SA
v
Council of the European Union

«(Appeal – Protection against dumping – Determination of the dumping margin – Choice of the asymmetrical calculation method – Article 2.4.2 of the Agreement on Implementation of Article VI of the GATT – Statement of reasons – Determination of normal value – Taking into account of sales made using compensation – Statement of reasons)»

Opinion of Advocate General Jacobs delivered on 25 April 2002

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Judgment of the Court (Fifth Chamber), 9 January 2003

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Summary of the Judgment

1..

Appeals – Pleas in law – Admissibility – Conditions – Submission of arguments also raised before the Court of First Instance – No effect

(Art. 225 EC; EC Statute of the Court of Justice, Art. 51, first para.; Rules of Procedure of the Court of Justice, Art. 112(1)(c))

2..

Common commercial policy – Protection against dumping – Dumping margin – Comparison between the normal value and the export price – Use of the asymmetrical method – Conditions

(Council Regulation No 384/96, Art. 2(11))

3..

International agreements – Agreement establishing the World Trade Organisation – GATT 1994 – Direct effect – None – Not possible to rely on the WTO agreements to contest the lawfulness of a Community act – Exceptions – Community measure intended to implement a GATT or WTO rule or expressly and specifically referring thereto

(Art. 230 EC; General Agreement on Tariffs and Trade 1994)

4..

Common commercial policy – Protection against dumping – Dumping margin – Rules relating to the calculation of the dumping margin, contained in the GATT 1994 Anti-dumping Code – Transposition into Community law by the basic anti-dumping regulation – Effect – Obligation to state reasons for the choice of recourse to the asymmetrical method

(EC Treaty, Art. 190 (now Art. 253 EC); Council Regulation No 384/96, Art. 2(11); Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade, 1994 Anti-dumping Code, Art. 2.4.2)

5..

Community law – Interpretation – Methods – Interpretation in the light of international agreements concluded by the Community

6..

Acts of the institutions – Statement of reasons – Obligation – Scope

(EC Treaty, Art. 190 (now Art. 253 EC))

7..

Common commercial policy – Protection against dumping – Dumping margin – Determination of the normal value – Taking into account, by way of exception, of the prices charged between parties which have a compensatory arrangement with each other – Need to justify recourse to the exception

(EC Treaty, Art. 190 (now Art. 253 EC); Council Regulation No 384/96, Art. 2(1), first and third subparas)

1.

Since, in the context of an appeal, the appellant clearly identified, in accordance with Article 225 EC, the first paragraph of Article 51 of the Statute of the Court of Justice and Article 112(1)(c) of the Rules of Procedure, the aspects of the contested judgment which are criticised and the legal arguments which specifically support its appeal, the fact that the arguments in support of a plea raised were also set forth at first instance cannot entail their inadmissibility. see paras 28, 71

2.

It is clear from the actual wording of Article 2(11) of the basic anti-dumping regulation (Regulation No 384/96) that the existence of a dumping margin is normally to be established using one of the two symmetrical methods and that recourse to the asymmetrical method, by way of an exception to that rule, may be had only on the twofold condition that, on the one hand, the pattern of export prices differs significantly among different purchasers, regions or time periods and, on the other hand, the symmetrical methods do not reflect the full degree of dumping being practised. The Council cannot therefore claim that the effect of that provision is that, having made a choice, in the exercise of its discretion, as between the two symmetrical methods, it is sufficient for it to satisfy itself that the symmetrical method thus chosen does not reflect the full degree of dumping being practised in order for it then to be entitled to use the asymmetrical method. see paras 49-50

3.

Having regard to their nature and structure, the WTO Agreement and the agreements and understandings annexed to it are not in principle among the rules in the light of which the Court is to review the legality of measures adopted by the Community institutions, pursuant to the first paragraph of Article 230 EC. However, where the Community intended to implement a particular obligation assumed in the context of the WTO, or where the Community measure refers expressly to precise provisions of the agreements and understandings contained in the annexes to the WTO Agreement, it is for the Court to review the legality of the Community measure in question in the light of the WTO rules. see paras 53-54

4.

Since the preamble to the basic anti-dumping regulation (Regulation No 384/96), and more specifically the fifth recital therein, shows that the purpose of that regulation is, inter alia , to transpose into Community law as far as possible the new and detailed rules contained in the 1994 Anti-dumping Code, 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, it must be held that the Community adopted the basic regulation in order to satisfy its obligations arising from the 1994 Anti-dumping Code and therefore intended, by means of Article 2(11) of that regulation, to implement the particular obligations laid down by Article 2.4.2 of that code. Although it is true that it was not expressly specified in Article 2(11) of the basic regulation that the explanation required by Article 2.4.2 of the 1994 Anti-dumping Code had to be given by the Community institution where recourse is had to the asymmetrical method in order to determine the dumping margin, that omission does not mean that the Community intended to exempt itself from that obligation since it may be explained by the existence of Article 190 of the Treaty (now Article 253 EC). Once Article 2.4.2 is transposed by the Community, the specific requirement to state reasons laid down by that provision can be considered to be subsumed under the general requirement imposed by Article 190 of the Treaty for acts adopted by the institutions to state the reasons on which they are based. see paras 55-56, 58

5.

Community legislation must, so far as possible, be interpreted in a manner that is consistent with international law, in particular where its provisions are intended specifically to give effect to an international agreement concluded by the Community. see para. 57

6.

The statement of reasons required by Article 190 of the Treaty (now Article 253 EC) must be appropriate to the act at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent Community court to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 190 must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question. see para. 81

7.

As far as concerns dumping, the determination of normal value constitutes one of the essential steps required to prove the existence of any dumping. In that regard, it follows from the first and third subparagraphs of Article 2(1) of the basic anti-dumping regulation (Regulation No 384/96) that, in principle, prices between parties which have a compensatory arrangement with each other may not be taken into account in determining normal value, and that there is no exception to this, unless it is determined that those prices are unaffected by the relationship. The requirements of the obligation to state reasons are therefore not satisfied by the Council regulation imposing definitive anti-dumping duties on imports, which merely states that it had been found that sales made using compensation were indeed made in the ordinary course of trade. Such a peremptory statement, which amounts to no more than a reference to the provisions of Community law, does not contain any explanatory element of such a kind as to enlighten the parties concerned and the Community judicature as to the reasons which led the Council to consider that the prices charged in connection with those sales made using compensation had not been affected by the relationship, and therefore that statement does not enable the parties concerned to know whether those prices were, by way of exception, correctly taken into consideration for the purpose of calculating normal value, or whether this latter circumstance may constitute a flaw affecting the legality of the contested regulation. see paras 82, 85-88

JUDGMENT OF THE COURT (Fifth Chamber)
9 January 2003 (1)

((Appeal – Protection against dumping – Determination of the dumping margin – Choice of the asymmetrical calculation method – Article 2.4.2 of the Agreement on Implementation of Article VI of the GATT – Statement of reasons – Determination of...