Judgment_paragraph 28 · Rusal Armenal ZAO v Council of the European Union (T-512/09)

28Since the applicant, as an undertaking having its seat in Armenia, does not fall within the scope of the second supplementary provision to paragraph 1 of Article VI of the GATT and, unlike in the cases of the People’s Republic of China and the Socialist Republic of Vietnam, the documents relating to the accession of the Republic of Armenia to the Agreement establishing the WTO do not provide for derogations to Article 2.1 and 2.2 of the Anti-Dumping Agreement, Article 2.1 and 2.2 have – since Armenia’s accession – precluded the market economy third country method under Article 2(7) of the basic regulation being applied to the applicant’s exports. That is true whether the footnote accompanying paragraph (a) thereof, as inserted by Council Regulation (EC) No 905/98 of 27 April 1998 amending the [basic] regulation (OJ 1998 L 128, p. 18), is invoked or any other provision of Article 2(7). The abovementioned provisions of the GATT and the Anti-Dumping Agreement give no scope for the creation of ‘intermediate’ categories between State-trading countries and market economy countries; furthermore, the Republic of Armenia has never agreed to such a status. It follows from this that the institutions cannot establish normal value in respect of the applicant by following the market economy third country methodology as was ultimately applied in the present case pursuant to Article 2(7)(a) of the basic regulation. In those circumstances, the institutions went beyond the legal framework established by the Anti-Dumping Agreement, in conjunction with the primary law provisions such as Article 216(2) TFEU and the case-law on the application of the basic regulation in the light of the Anti-Dumping Agreement. Consequently, Article 2(7) of the basic regulation should be declared inapplicable in the present case and the contested regulation should be annulled for breach of Article 2.1 and 2.2 of the Anti-Dumping Agreement and Article 2(1) to (6) of the basic regulation. This would in no way compromise the European Union’s negotiating position in the context of the WTO.

Rusal Armenal ZAO v Council of the European Union (T-512/09)

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