Judgment of the General Court Seventh Chamber, Extended Composition, 21 December 2022, EOC Belgium v Commission, T-747/20

• Date: 21 December 2022
• Year: 2022

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FEU Treaty create a right, on the part of a competitor of an undertaking benefiting from a national

measure, not to be subject to competition distorted by such a measure. It concluded that a

Commission decision that had been adopted in the field of State aid and was liable to place an

economic operator in an unfavourable competitive position could be regarded as directly affecting

the legal situation of that operator. In the present case, the General Court holds, in the same way, that

the interests of some of the users of the product concerned in having their competitive situation

protected from the distortion which might result from a measure adopted by the Commission under

the basic anti-dumping regulation

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fall within the Union interest within the meaning of Article 21(1)

of that regulation, given that the objective of that regulation is not merely to restore the competitive

position of Union industry producers, but also to preserve effective competition within the internal

market. Consequently, users of the product concerned, such as the applicants, have the right not to

be subject to distorted competition caused by an act adopted by the Commission under the basic

regulation. In view of the existence of that right, the exemption at issue, which is capable of infringing

it, has effects on the legal situation of the applicants and is therefore of direct concern to them.

Thirdly, as regards the classification of the provision governing the exemption at issue as a

challengeable act, the Court holds that the requirement, introduced by the judgment in IBM, for the

binding legal effects of the contested measure to be capable of affecting the interests of the applicant,

by bringing about a distinct change in its legal position, is not applicable to natural or legal persons

who are not addressees of the contested act and already meet the conditions laid down in the third

limb of the fourth paragraph of Article 263 TFEU.

As to the substance, the Court rejects a plea alleging infringement of Article 9(5) of the basic anti-

dumping regulation which had been raised on the basis that the exemption at issue discriminates

between PVA users within the European Union. Under that provision, anti-dumping duties must 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. In that regard, the Court holds,

having regard to the way in which the corresponding provision of the Agreement on Implementation

of Article VI of the Anti-Dumping Agreement

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– namely the first sentence of Article 9.2 thereof – has

been interpreted by the WTO bodies involved in the dispute settlement process, that Article 9(5) of

the basic anti-dumping regulation cannot be interpreted as meaning that the discrimination to which

it refers covers a difference in the treatment of users of the product concerned established in the

territory of the WTO member imposing the anti-dumping duties.

In addition, the Court observes that it is not apparent from the documents in the file that the

exemption at issue would give rise to de facto discrimination between Chinese exporters of PVAs.

In the light of those considerations, the Court dismisses the action in its entirety.

Judgment of the General Court (Seventh Chamber, Extended Composition), 21 December

2022, EOC Belgium v Commission, T-747/20

Anti-dumping – Imports of certain polyvinyl alcohols originating in the People’s Republic of China –

Definitive anti-dumping duties – Exemption of imports for a particular end-use – Severability – Regulatory

act entailing implementing measures – Direct concern – Challengeable act – First subparagraph of

Article 9(5) of Regulation (EU) 2016/1036 – Duty imposed on a non-discriminatory basis – Equal treatment

and non-discrimination

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Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on protection against dumped imports from

countries not members of the European Union (OJ 2016 L 176, p. 21; ‘the basic anti-dumping regulation’), Article 21(1).

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Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (OJ 1994 L 336, p. 103).