Contents
Judgment of the General Court (Seventh Chamber, Extended Composition)21 December 2022note(Dumping — Imports of certain polyvinyl alcohols originating in China — Definitive anti-dumping duties — Exemption of imports for a particular end-use — Action for annulment — Severability — Regulatory act entailing implementing measures — Whether directly concerned — Challengeable act — Admissibility — First subparagraph of Article 9(5) of Regulation (EU) 2016/1036 — Duty imposed on a non-discriminatory basis — Equal treatment)In Case T‑746/20,Grünig KG, established in Bad Kissingen (Germany), represented by Y. Melin and I. Fressynet, lawyers,vEuropean Commission, represented by K. Blanck, G. Luengo and M. Gustafsson, acting as Agents,THE GENERAL COURT (Seventh Chamber, Extended Composition),composed, at the time of its deliberations, of R. da Silva Passos, President, V. Valančius, I. Reine, L. Truchot (Rapporteur) and M. Sampol Pucurull, Judges,Registrar: H. Eriksson, administratorhaving regard to the written part of the procedure,further to the hearing on 9 June 2022,gives the following
Judgment
1By its action under Article 263 TFEU, the applicant, Grünig KG, seeks annulment of Article 1(4) of Commission Implementing Regulation (EU) 2020/1336 of 25 September 2020 imposing definitive anti-dumping duties on imports of certain polyvinyl alcohols originating in the People’s Republic of China (OJ 2020 L 315, p. 1).
I.Background to the dispute
2On 25 September 2020, the European Commission adopted Implementing Regulation 2020/1336.
3By Article 1(1) of Implementing Regulation 2020/1336, the Commission imposed the anti-dumping duties referred to in paragraph 1 above.
4By Article 1(4) of Implementing Regulation 2020/1336, the Commission created an exemption from those duties (‘the exemption at issue’). That provision reads as follows:‘Products described in paragraph 1 shall be exempted from the definitive anti-dumping duty if they are imported for the manufacturing of dry-blend adhesives, produced and sold in powder form for the carton board industry. Such products shall be placed under the end-use procedure referred to in Article 254 of Regulation (EU) No 952/2013 in order to demonstrate that they are imported exclusively for the abovementioned use.’
5In paragraph 6.3.4 of Implementing Regulation 2020/1336, which is found in the part of that regulation concerning the interest of the European Union and is headed ‘Adhesives producers’, the Commission set out the reasons why it had decided to exempt imports of certain polyvinyl alcohols (‘PVAs’) from the definitive anti-dumping duties imposed by that regulation. That exemption, which applies to manufacturers of dry-blend adhesives, is intended to protect their interests against the negative impact that the imposition of those duties might have on their situation.
6The applicant is a company established in Germany which imports PVAs and manufactures liquid adhesives from PVAs.
II.Forms of order sought
7The applicant claims that the Court should:– annul Article 1(4) of Implementing Regulation (EU) 2020/1336;– order the Commission to pay the costs.
8The Commission contends that the Court should:– dismiss the action;– order the applicant to pay the costs.
III.Law
9As the Commission has raised several pleas of inadmissibility, it is necessary to consider the admissibility of the action.
A.Admissibility
10First of all, the Commission submits that the action is inadmissible on the grounds (i) that Article 1(4) of Implementing Regulation 2020/1336 is not severable from the rest of that regulation, (ii) that that regulation entails implementing measures, and (iii) that it is not of direct or individual concern to the applicant.
11Second, the Commission maintains that the applicant cannot rely on the right to an effective remedy in order to establish that it has standing to bring the action.
12Lastly, in the event that the Court considers the applicant to be directly concerned by Article 1(4) of Implementing Regulation 2020/1336, the Commission contends that that provision is not a challengeable act.
13The applicant submits that its action is admissible.
1.Whether Article 1(4) of Implementing Regulation 2020/1336 is severable
14It is clear from the settled case-law of the Court of Justice that the partial annulment of an EU act is possible only if the elements whose annulment is sought may be severed from the remainder of the act. In that regard, the Court of Justice has repeatedly held that the requirement of severability is not satisfied in the case where the partial annulment of an act would have the effect of altering its substance (see judgment of 9 November 2017, SolarWorld v Council, C‑204/16 P, EU:C:2017:838, paragraph 36 and the case-law cited).
15Consequently, review of whether elements of an EU act are severable requires consideration of the scope of those elements in order to assess whether their annulment would alter the spirit and substance of the act (see judgment of 9 November 2017, SolarWorld v Council, C‑204/16 P, EU:C:2017:838, paragraph 37 and the case-law cited).
16In the present case, the only provision that the applicant seeks to have annulled is Article 1(4) of Implementing Regulation 2020/1336 (see paragraph 7 above), which creates the exemption at issue.
17Such an exemption, in so far as it provides for an exception to a rule establishing anti-dumping duties, is, in principle, severable from the regulation laying down that rule.
18In the judgment of 9 November 2017, SolarWorld v Council (C‑204/16 P, EU:C:2017:838, paragraphs 44 to 53), which is relied on by the Commission, the Court of Justice set out factors enabling it to be determined in which situations an exemption from anti-dumping duties may not be severable from the regulation establishing those duties.
19The case which gave rise to the judgment of 9 November 2017, SolarWorld v Council (C‑204/16 P, EU:C:2017:838) concerned Council Implementing Regulation (EU) No 1238/2013 of 2 December 2013 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of crystalline silicon photovoltaic modules and key components (i.e. cells) originating in or consigned from the People’s Republic of China (OJ 2013 L 325, p. 1).
20The Court of Justice determined that Article 3(1) of Regulation No 1238/2013, which provided that imports of certain products invoiced by companies from which the Commission had accepted undertakings were exempt from the anti-dumping duties imposed by Article 1 of that regulation, was not severable from the remaining provisions of that regulation or, in particular, from those imposing the duties in question (judgment of 9 November 2017, SolarWorld v Council, C‑204/16 P, EU:C:2017:838, paragraph 55).
21The Court of Justice held that while, on a formal level, imposition of the duties appeared to be the rule and exemption from those duties, after an undertaking had been given, appeared to be the exception, in reality the two provisions were separate and complementary measures which sought to achieve a common goal (judgment of 9 November 2017, SolarWorld v Council, C‑204/16 P, EU:C:2017:838, paragraphs 44 to 53).
22The Court of Justice based that conclusion on the presence of a set of factors. In the first place, it observed that the same objectives were pursued by the measure imposing the duties and by the measure creating an exemption. Thus, in the case before it, both the imposition of duties and the acceptance of undertakings had been designed to eliminate the injurious effect on the Union industry of dumping relating to crystalline silicon photovoltaic modules and their key components (judgment of 9 November 2017, SolarWorld v Council, C‑204/16 P, EU:C:2017:838, paragraphs 44 to 48). In the second place, the Court of Justice observed that the two provisions at issue were complementary. It based that conclusion on their economic consequences (judgment of 9 November 2017, SolarWorld v Council, C‑204/16 P, EU:C:2017:838, paragraphs 49 to 51). In the third place, and lastly, the Court of Justice observed that the exemption was not exceptional in nature. In stated, in that regard, that the exemption applied to 70% of imports of the products concerned (judgment of 9 November 2017, SolarWorld v Council, C‑204/16 P, EU:C:2017:838, paragraphs 52 and 53).
23The approach taken by the Court of Justice in the case giving rise to the judgment of 9 November 2017, SolarWorld v Council (C‑204/16 P, EU:C:2017:838), is therefore based on a set of factors characterising a particular situation in which what might, at first sight, appear to be a pure exemption, and thus an exception to a rule, is in fact an integral part of the contested measure, and accordingly not severable.
24It is therefore necessary, in order to determine whether the exemption at issue is severable, to consider whether such factors are present in the case at hand.
25In the first place, it should be observed that an imposition of anti-dumping duties, such as that effected, in the present case, by Article 1(1) of Implementing Regulation 2020/1336, is intended to eliminate the injurious effect of the alleged dumping on the Union industry (see, to that effect, judgment of 9 November 2017, SolarWorld v Council, C‑204/16 P, EU:C:2017:838, paragraph 46).
26However, Article 21(1) of 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 regulation’) permits the Commission, with a view to protecting, in particular, the interests of users of the product concerned, not to adopt anti-dumping measures even where dumping and injury have been established.
27In the present case, the exemption at issue, which was adopted pursuant to Article 21 of the basic regulation, is intended, as is apparent from recital 625 of Implementing Regulation 2020/1336, to protect the interests of certain PVA users, more specifically producers of dry-blend adhesives, from the negative impact that the imposition of anti-dumping duties might have on their situation.
28The objective of the exemption at issue is therefore different from that pursued by Article 1(1) of Implementing Regulation 2020/1336, referred to in paragraph 25 above, whereas, in the case which gave rise to the judgment of 9 November 2017, SolarWorld v Council (C‑204/16 P, EU:C:2017:838), the imposition of the anti-dumping duties and the exemption from those duties pursued the same objective (see paragraph 22 above).
29In the second place, in the case giving rise to the judgment of 9 November 2017, SolarWorld v Council (C‑204/16 P, EU:C:2017:838), the Council of the European Union, which was the originator of the contested regulation, had put in place trade defence measures constituting a set or ‘package’ made up of two separate and complementary measures, the first being the imposition of anti-dumping duties and the second the exemption from those anti-dumping duties of companies from which the Commission had accepted undertakings (judgment of 9 November 2017, SolarWorld v Council, C‑204/16 P, EU:C:2017:838, paragraph 44).
30In contrast, in the present case, the exemption at issue is not complementary but ancillary to the imposition of the anti-dumping duties.
31The ancillary nature of the exemption at issue, in relation to the imposition of the anti-dumping duties, is apparent from the place occupied by the recitals relating to the exemption at issue within the statement of reasons for Implementing Regulation 2020/1336. Those recitals appear in the sole part of Implementing Regulation 2020/1336 which is devoted to the interests of adhesive producers and the potential negative impact of the imposition of the anti-dumping duties on those producers. The justification for the exemption at issue was thus restricted by the Commission to the only part of Implementing Regulation 2020/1336 devoted to it, which is an indication that the Commission was giving it ancillary status.
32In the third place, in recital 628 of Implementing Regulation 2020/1336, the exemption at issue is described as ‘exception[al]’, its scope being ‘strictly limited to dry-blend adhesives and under no circumstances [covering] any other products (for example, liquid adhesives) produced by adhesive producers’.
33In that regard, the Commission itself, in examining, in recital 627 of Implementing Regulation 2020/1336, the effects that introducing the exemption at issue would produce, noted that the adhesives market segment represented 17% of EU consumption, and that the only producer of dry-blend adhesives that came forward represented only 4% of that segment.
34In contrast, the exemption in the case which gave rise to the judgment of 9 November 2017, SolarWorld v Council (C‑204/16 P, EU:C:2017:838), inasmuch as it applied to 70% of imports of the products concerned (see paragraph 22 above), was not exceptional in nature.
35It follows from the considerations set out in paragraphs 25 to 34 above that none of the features identified by the Court of Justice in the case which gave rise to the judgment of 9 November 2017, SolarWorld v Council (C‑204/16 P, EU:C:2017:838), and referred to in paragraph 22 above, are to be found in the present case.
36Moreover, there is nothing else in the evidence in the file to indicate that the exemption at issue is not an exception to the rule imposing the anti-dumping duties, but an alternative and complementary measure in relation to that rule, designed to achieve the same objective (see paragraph 21 above).
37Accordingly, the exemption at issue is severable from the rule imposing the anti-dumping duties.
38It should be added that Article 1(4) of Implementing Regulation 2020/1336 is not limited to laying down, in the first sentence, the exemption at issue. The second sentence of the provision (see paragraph 4 above) provides that, where the exemption applies, the PVA is to be placed under the end-use procedure referred to in Article 254 of Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code (OJ 2013 L 269, p. 1), in order to demonstrate that they are imported exclusively for the use referred to in paragraph 4 above.
39The sole objective of the latter provision is to designate the customs procedure applicable to imports of PVAs benefiting from the exemption at issue.
40Given that the exemption at issue, the principle of which is laid down by the first sentence of Article 1(4) of Implementing Regulation 2020/1336, is severable from the remainder of that regulation, the rule merely designating the customs procedure applicable to products benefiting from that exemption, contained in the second sentence of that article, inherits the severable status of that exemption.
41Consequently, having regard to the conclusion set out in paragraph 37 above, Article 1(4) of Implementing Regulation 2020/1336 is, in its entirety, severable from the other provisions of that regulation.
42In the light of the considerations set out above, the other arguments advanced by the Commission, namely, first, the fact that the anti-dumping duties are imposed by the same article of Implementing Regulation 2020/1336 that creates the exemption, second, the infrequent use of exemptions such as that at issue, third, the detailed reasoning relating to the exemption at issue, fourth, the number of observations submitted by economic operators when the exemption was examined, fifth, the significant economic consequences that the annulment of the exemption would have for Cordial, the manufacturer of dry-blend adhesives whose situation was taken into consideration by the Commission in Implementing Regulation 2020/1336, and for its customers, and sixth, the determination shown by the Commission in adopting that regulation in spite of reticence on the part of certain Member States, cannot call the severability of Article 1(4) of Implementing Regulation 2020/1336 into question.
43The plea of inadmissibility raised by the Commission must therefore be dismissed.
2.The conditions of admissibility laid down in the fourth paragraph of Article 263 TFEU
44It must be observed that the fourth paragraph of Article 263 TFEU provides for two situations in which natural or legal persons are accorded standing to institute proceedings against an act not addressed to them. First, such proceedings may be instituted if the act is of direct and individual concern to them. Second, such persons may bring proceedings against a regulatory act not entailing implementing measures if that act is of direct concern to them (judgments of 19 December 2013, Telefónica v Commission, C‑274/12 P, EU:C:2013:852, paragraph 19, and of 18 October 2018, Internacional de Productos Metálicos v Commission, C‑145/17 P, EU:C:2018:839, paragraph 32).
45The conditions of admissibility laid down in the fourth paragraph of Article 263 TFEU must be interpreted in the light of the fundamental right to effective judicial protection, as enshrined in Article 47 of the Charter of Fundamental Rights of the European Union, but such an interpretation cannot have the effect of setting aside those conditions, which are expressly laid down in the FEU Treaty (judgment of 3 December 2020, Changmao Biochemical Engineering v Distillerie Bonollo and Others, C‑461/18 P, EU:C:2020:979, paragraph 55 and the case-law cited).
46In the present case, the applicant is not the addressee of Implementing Regulation 2020/1336. Accordingly, it can only have standing to bring the action if it is in one of the two situations referred to in paragraph 44 above.
47The admissibility of the present action should be examined by reference to the second situation referred to in paragraph 44 above.
48It is necessary to determine, first, whether Implementing Regulation 2020/1336 is a regulatory act, second, whether or not it entails implementing measures, and third, whether it directly affects the applicant’s situation.
(a)Whether Implementing Regulation 2020/1336 is a regulatory act
49According to the case-law, regulatory acts are acts of general application which are not legislative acts (judgment of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council, C‑583/11 P, EU:C:2013:625, paragraph 61, and order of 28 October 2020, Sarantos and Others v Parliament and Council, C‑84/20 P, not published, EU:C:2020:871, paragraph 29).
50It is necessary to determine, in the first place, whether Article 1(4) of Implementing Regulation 2020/1336 is of general application and, in the second place, whether it is a legislative act.
51In the first place, it is apparent from its wording that Article 1(4) of Implementing Regulation 2020/1336 is of general application, in that it applies to objectively determined situations and entails legal effects for categories of persons envisaged in a general and abstract manner (see paragraph 4 above).
52The general application of Article 1(4) of Implementing Regulation 2020/1336 is confirmed by the statement of reasons for that regulation, recital 630 of which reads as follows:‘In this regard …, the Commission clarified that the [exemption at issue] is not [specific to Cordial], but applies to all dry-blend adhesives producers in a non-discriminatory manner …’
53In the second place, as is apparent from recitals 672 and 673 of Implementing Regulation 2020/1336, the Commission adopted that regulation after submitting a draft of it to the appeal committee in accordance with Article 5(5) of Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers (OJ 2011 L 55, p. 13).
54It follows from the considerations set out in paragraphs 49 to 53 above that Implementing Regulation 2020/1336 is not a legislative act, as it was not adopted following either the ordinary legislative procedure or the special legislative procedure as referred to in Article 289(1) and (2) TFEU (see, to that effect, orders of 5 February 2013, BSI v Council, T‑551/11, not published, EU:T:2013:60, paragraph 43, and of 14 September 2021, Far Polymers and Others v Commission, T‑722/20, not published, EU:T:2021:598, paragraph 55).
55As the two conditions referred to in paragraphs 49 and 50 above are satisfied, it must be concluded that Implementing Regulation 2020/1336, Article 1(4) of which contains the exemption at issue, is in the nature of a regulatory act. This characterisation is not challenged by the Commission, moreover. It is therefore necessary to consider whether or not the exemption entails implementing measures.
(b)The lack of implementing measures
56The expression ‘does not entail implementing measures’ within the meaning of the third limb of the fourth paragraph of Article 263 TFEU must be interpreted in the light of the objective of that provision, which, as is apparent from its drafting history, is to ensure that individuals do not have to break the law in order to have access to a court. Where a regulatory act directly affects the legal situation of a natural or legal person without requiring implementing measures, that person could be denied effective judicial protection if he or she did not have a legal remedy before the EU judicature for the purpose of challenging the legality of the regulatory act. In the absence of implementing measures, a natural or legal person, although directly concerned by the act in question, would be able to obtain judicial review of the act only after having infringed its provisions, by pleading that those provisions are unlawful in proceedings initiated against them before the national court (judgments of 19 December 2013, Telefónica v Commission, C‑274/12 P, EU:C:2013:852, paragraph 27, and of 6 November 2018, Scuola Elementare Maria Montessori v Commission, Commission v Scuola Elementare Maria Montessori and Commission v Ferracci, C‑622/16 P to C‑624/16 P, ‘the judgment in Montessori’, EU:C:2018:873, paragraph 58).
57By contrast, where a regulatory act entails implementing measures, judicial review of compliance with the EU legal order is ensured irrespective of whether those measures were adopted by the European Union or the Member States. Natural or legal persons who are unable, because of the conditions of admissibility in the fourth paragraph of Article 263 TFEU, to challenge an EU regulatory act directly before the EU judicature are protected against the application to them of such an act by the ability to challenge the implementing measures which the act entails (judgments of 19 December 2013, Telefónica v Commission, C‑274/12 P, EU:C:2013:852, paragraph 28, and of 6 November 2018, Montessori, C‑622/16 P to C‑624/16 P, EU:C:2018:873, paragraph 59).
58In the field of anti-dumping duties, the customs code established by Regulation No 952/2013 provides that duties imposed by a regulation such as Implementing Regulation 2020/1336 are collected pursuant to measures adopted by the national authorities, which must be regarded as ‘implementing measures’ (see, to that effect, judgments of 18 October 2018, Internacional de Productos Metálicos v Commission, C‑145/17 P, EU:C:2018:839, paragraphs 59 and 60, and of 19 September 2019, Trace Sport, C‑251/18, EU:C:2019:766, paragraph 31, and order of 5 February 2013, BSI v Council, T‑551/11, not published, EU:T:2013:60, paragraphs 45 to 53).
59However, in assessing whether a regulatory act entails implementing measures, reference should be made exclusively to the subject matter of the action (judgments of 19 December 2013, Telefónica v Commission, C‑274/12 P, EU:C:2013:852, paragraph 31, and of 6 November 2018, Montessori, C‑622/16 P to C‑624/16 P, EU:C:2018:873, paragraph 61). Furthermore, where an applicant seeks only the partial annulment of an act, it is solely any implementing measures which that part of the act may entail that must, as the case may be, be taken into consideration (judgment of 18 October 2018, Internacional de Productos Metálicos v Commission, C‑145/17 P, EU:C:2018:839, paragraph 53).
60It is only Article 1(4) of Implementing Regulation 2020/1336 that is challenged by the applicant.
61Consequently, and contrary to the Commission’s submissions, it is not necessary, in order to determine whether there are implementing measures in the present case, to take into consideration the implementing measures which are necessarily entailed, under the case-law cited in paragraph 58 above, by Article 1(1) of Implementing Regulation 2020/1336, which imposes anti-dumping duties (see paragraph 3 above).
62Furthermore, that question – whether a regulatory act entails implementing measures – should be assessed by reference to the position of the person pleading the right to bring proceedings under the third limb of the fourth paragraph of Article 263 TFEU. It is therefore irrelevant whether the act in question entails implementing measures with regard to other persons (judgments of 19 December 2013, Telefónica v Commission, C‑274/12 P, EU:C:2013:852, paragraph 30, and of 6 November 2018, Montessori, C‑622/16 P to C‑624/16 P, EU:C:2018:873, paragraph 61).
63It is not disputed that the applicant, which imports PVAs for the sole purpose of manufacturing liquid adhesives, cannot benefit from the exemption at issue.
64Consequently, even if the end-use procedure referred to in Article 254 of Regulation No 952/2013, to which reference is made in the second sentence of Article 1(4) of Implementing Regulation 2020/1336 (see paragraph 4 above), entails the adoption of implementing measures by the national authorities, those measures cannot apply to the applicant.
65Thus, the Commission’s argument that, first, Cordial and the other beneficiaries of the exemption at issue are required to obtain authorisation from the customs authorities, pursuant to Regulation No 952/2013, in order to benefit from that exemption, and second, that such an exemption is an implementing measure in relation to Article 1(4) of Implementing Regulation 2020/1336, is irrelevant.
66It is true that the applicant could request the benefit of the exemption at issue in order to obtain a refusal from the customs authorities that it would be able to challenge.
67However, a refusal to grant a request submitted by an applicant to the national authorities cannot be regarded as an implementing measure of an EU act where it can be said that it would be artificial to require that applicant to make such a request (see, to that effect, judgment of 6 November 2018, Montessori, C‑622/16 P to C‑624/16 P, EU:C:2018:873, paragraphs 66 and 67).
68Given that, in the present case, the applicant does not meet the eligibility conditions which, under Implementing Regulation 2020/1336, must be satisfied in order to benefit from the exemption at issue, it would be artificial to require it to request the benefit of that exemption from the customs authorities and to challenge the act refusing that request before a national court, so as to prompt that court to make a reference to the Court of Justice on the validity of Article 1(4) of Implementing Regulation 2020/1336 (see, to that effect, judgments of 6 November 2018, Montessori, C‑622/16 P to C‑624/16 P, EU:C:2018:873, paragraphs 65 and 66, and of 28 October 2020, Associazione GranoSalus v Commission, C‑313/19 P, not published, EU:C:2020:869, paragraph 41).
69It follows from the considerations set out in paragraphs 56 to 68 above that, contrary to the Commission’s submissions, the exemption at issue does not entail implementing measures with regard to the applicant.
70In the absence of implementing measures, it is necessary to consider the condition relating to direct concern.
(c)Whether the applicant is directly concerned
71According to settled case-law of the Court of Justice, the condition that a natural or legal person must be directly concerned by the decision against which the action is brought, laid down in the fourth paragraph of Article 263 TFEU, requires two cumulative criteria to be met, namely, first, the contested measure must directly affect the legal situation of the individual and, second, it must leave no discretion to its addressees who are entrusted with the task of implementing it, such implementation being purely automatic and resulting from the EU rules alone without the application of other intermediate rules (judgments of 5 May 1998, Dreyfus v Commission, C‑386/96 P, EU:C:1998:193, paragraph 43; of 13 March 2008, Commission v Infront WM, C‑125/06 P, EU:C:2008:159, paragraph 47; and of 6 November 2018, Montessori, C‑622/16 P to C‑624/16 P, EU:C:2018:873, paragraph 42).
(1)The second criterion: no discretion left to the addressees entrusted with the task of implementing the contested measure
72It should be pointed out that the second criterion is not relevant in relation to a measure which, like the one at issue in the present case, does not entail implementing measures with regard to the applicant (see, to that effect, judgment of 7 July 2015, Federcoopesca and Others v Commission, T‑312/14, EU:T:2015:472, paragraph 38 to 40).
73In any event, Article 14(1) of the basic regulation, which is headed ‘General provisions’, provides as follows:‘Provisional or definitive anti-dumping duties shall be imposed by regulation, and collected by Member States in the form, at the rate specified and according to the other criteria laid down in the regulation imposing such duties …’
74Thus, the Member States responsible for implementing the anti-dumping regulations do not, in principle, have any discretion (see, to that effect, judgments of 3 December 2020, Changmao Biochemical Engineering v Distillerie Bonollo and Others, C‑461/18 P, EU:C:2020:979, paragraph 59, and of 18 October 2016, Crown Equipment (Suzhou) and Crown Gabelstapler v Council, T‑351/13, not published, EU:T:2016:616, paragraph 24).
75In the present case, by making eligibility for the exemption subject to the sole condition that the products concerned have been imported for the manufacturing of dry-blend adhesives produced and sold in powder form for the carton board industry, Article 1(4) of Implementing Regulation 2020/1336 does not leave any discretion to the national customs authorities responsible for its implementation.
76As to the rule in Article 1(4) of Implementing Regulation 2020/1336 concerning the placement of PVAs under the end-use procedure referred to in Article 254 of Regulation No 952/2013, that provision, the sole purpose of which is to designate the customs procedure under which imports of PVAs benefiting from the exemption at issue are to be placed (see paragraph 39 above), cannot, for that reason, call the purely automatic nature of the exemption into question. Furthermore, the wording of that provision, which does not make placement under the end-use procedure subject to any further condition, beyond that relating to the exemption for PVAs, also leaves no discretion to the national customs authorities.
77Accordingly, the second criterion referred to in paragraph 71 above, which in any event was not put in issue by any of the parties, is satisfied.
(2)The first criterion: direct effects on the legal situation of the applicant
78In support of its submission that that the action is admissible, the applicant relies on its situation as a user of PVAs which is in competition with the beneficiaries of the exemption at issue. With regard to the condition of direct concern, it asks the Court to take the same approach as was taken by the Court of Justice, in the field of State aid, in the judgment of 6 November 2018, Montessori (C‑622/16 P to C‑624/16 P, EU:C:2018:873). It states that the exemption at issue puts it in an unfavourable competitive position compared to manufacturers of dry-blend adhesives.
79In that regard, it is apparent from settled case-law that the fact that an EU act puts an economic operator in an unfavourable competitive position is not, in itself, a valid basis for holding that that the legal situation of that operator is directly affected by that act nor that it is directly concerned by it (see, to that effect, judgments of 28 April 2015, T & L Sugars and Sidul Açúcares v Commission, C‑456/13 P, EU:C:2015:284, paragraphs 34, 36 and 37; of 17 September 2015, Confederazione Cooperative Italiane and Others v Anicav and Others, C‑455/13 P, C‑457/13 P and C‑460/13 P, not published, EU:C:2015:616, paragraphs 47 to 49; and of 28 February 2019, Council v Growth Energy and Renewable Fuels Association, C‑465/16 P, EU:C:2019:155, paragraph 81).
80However, in paragraph 43 of the judgment of 6 November 2018, Montessori (C‑622/16 P to C‑624/16 P, EU:C:2018:873), the Court of Justice held that a Commission decision, adopted in the field of State aid, which, by leaving intact all the effects of a national measure which was favourable to competitors, placed an economic operator in an unfavourable competitive position, could be regarded as directly affecting the legal situation of that operator.
81As is apparent from paragraphs 43 and 52 of the judgment of 6 November 2018, Montessori (C‑622/16 P to C‑624/16 P, EU:C:2018:873), the Court of Justice based its approach on the observations that the objective of the rules on State aid was to preserve competition, and that the State aid provisions of the FEU Treaty created 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.
82In the field of anti-dumping, Article 21(1) of the basic regulation provides as follows:‘A determination as to whether the Union’s interest calls for intervention shall be based on an appreciation of all the various interests taken as a whole, including the interests of the domestic industry and users and consumers. A determination pursuant to this Article shall only be made where all parties have been given the opportunity to make their views known pursuant to paragraph 2. In such an examination, the need to eliminate the trade distorting effects of injurious dumping and to restore effective competition shall be given special consideration. Measures, as determined on the basis of the dumping and injury found, may not be applied where the authorities, on the basis of all the information submitted, can clearly conclude that it is not in the Union’s interest to apply such measures.’
83Under that provision, the EU authorities, and in particular the Commission, must, before adopting anti-dumping measures, determine whether it is in the interest of the European Union to take such measures. Thus, the Commission may decide not to take measures, even where dumping and injury are established, if it is not in the interest of the European Union to do so.
84It was on the basis of that provision that the exemption at issue was adopted (see recital 551 of Implementing Regulation 2020/1336).
85For the purposes of determining where the interest of the European Union lies, the third sentence of Article 21(1) of the basic regulation states that ‘the need to eliminate the trade distorting effects of injurious dumping and to restore effective competition shall be given special consideration’.
86It is apparent from that sentence that, to that end, the interest of producers in having their competitive position restored, where it has been affected by injurious dumping practices, is taken into account as a matter of priority.
87However, under the first sentence of Article 21(1) of the basic regulation, in determining whether it is in the interest of the European Union to adopt anti-dumping measures, the Commission must assess all the various interests taken as a whole, and accordingly the interests of producers are not the only interests it is required to take into account.
88That provision thus stipulates that the interests at stake include those of users of the product concerned.
89It cannot therefore be concluded, on the basis that the third sentence of Article 21(1) of the basic regulation relates only to the competitive position of Union industry producers, that the interest of users of the product concerned in not having their competitive position affected, in a situation such as that described in paragraph 87 above, is not to be taken into account.
90On the contrary, the interests of certain users of the product concerned in having their competitive position protected from the potentially distorting effects of such an exemption fall within the Union interest, within the meaning of Article 21(1) of the basic regulation.
91The link between the interests of users of the product concerned in having their competitive position preserved and the interest of the European Union is apparent not only from the reference to their interests in Article 21(1) of the basic regulation, but also from the fact that a general objective is set, in that regulation, of preserving competition within the internal market, which is not limited to the competitive position of EU producers.
92In that regard, it must be observed that in the third sentence of Article 21(1) of the basic regulation, reference is made to effective competition, and not merely to the competitive position of Union industry producers and their specific interests.
93Furthermore, it is provided in the second subparagraph of Article 9(4) of the basic regulation not only that the amount of the definitive anti-dumping duties must not exceed the margin of dumping, but also that it must not exceed the injury to the Union industry.
94Thus, on the one hand, Union industry producers are not given any competitive advantage over exporters from third countries engaged in dumping and, on the other hand, the amount of the anti-dumping duties does not go beyond what is strictly necessary, thus protecting the interests of downstream economic operators, in particular users of the product concerned.
95It follows that the basic regulation does not have the sole objective of restoring the competitive position of Union industry producers, but also pursues the objective of preserving effective competition within the internal market.
96Consequently, users of the product concerned have the right not to be to be subject to competition distorted by an act adopted by the Commission pursuant to the basic regulation, in the same way that a competitor of an undertaking receiving State aid has the right not to be subject to competition distorted by that aid.
97In view of the existence of that right, a Commission act capable of infringing it has effects on the legal situation of the holder of that right and thus directly affects the holder.
98From the point of view of the requirement for the applicant to be directly concerned, laid down in the fourth paragraph of Article 263 TFEU, the applicant is in a situation comparable to that of the applicants in the case which gave rise to the judgment of 6 November 2018, Montessori (C‑622/16 P to C‑624/16 P, EU:C:2018:873).
99In contrast, the case-law of the Court of Justice cited in paragraph 79 above, under which an economic operator put, following the adoption of an EU act, in an unfavourable competitive position is not to be regarded as directly affected by that act, does not mean that the condition of direct concern is not satisfied.
100It is true that the applicant submits – like the applicants in the cases referred to in paragraph 79 above – that the Commission has adopted a measure which, by virtue of the differences of treatment it entails, might affect its competitive position.
101However, unlike the factual position in the cases referred to in paragraph 79 above, the applicant’s interests, including the preservation of its competitive position, are taken into account under the basic regulation on the basis of which the exemption at issue was adopted.
102In contrast, in the cases described in paragraph 79 above, the interests of the applicants were not preserved by the legal rules which put their competitors at an advantage, as they not fall within the scope of those rules.
103Thus, in the judgment of 28 April 2015, T & L Sugars and Sidul Açúcares v Commission (C‑456/13 P, EU:C:2015:284, paragraphs 1 to 3 and 34), it was pointed out that the supply of sugar on the European Union market includes sugar produced, first, by the processing of sugar beet grown within the European Union and, second, by the refining of raw cane sugar imported from non-member countries, the final product being chemically identical in each case. The provisions at issue were designed to increase the supply of sugar on the European Union market, which was experiencing a shortage. Some of those provisions put EU producers at an advantage by permitting them to produce and market a limited quantity of sugar and isoglucose in excess of the domestic production quota. The applicants, which were not producers of sugar and isoglucose, but undertakings refining imported cane sugar, did not fall within the scope of the legal rules at issue.
104Similarly, in the case which gave rise to the judgment of 17 September 2015, Confederazione Cooperative Italiane and Others v Anicav and Others (C‑455/13 P, C‑457/13 P and C‑460/13 P, not published, EU:C:2015:616, paragraphs 2 to 9, 32 and 48), the provisions at issue put producer organisations in the fruit and vegetables sector at an advantage. The applicants, which were industrial processors of fruit and vegetables, and not producers of those foodstuffs, claimed that they were being discriminated against by comparison to producer organisations engaged in processing activities. However, they did not fall within the scope of the legal rules at issue.
105Lastly, in the case which gave rise to the judgment of 28 February 2019, Council v Growth Energy and Renewable Fuels Association (C‑465/16 P, EU:C:2019:155, paragraphs 73, 74 and 79 to 81), the purpose of the contested measures was to introduce an anti-dumping duty on imports of bioethanol from the United States. The applicant was a US bioethanol producer. It did not export its product to the European Union, but sold it to traders/blenders. Those undertakings exported the bioethanol they had purchased from, inter alia, the applicant, at which point an anti-dumping duty was applied to that product. The contested measures had been adopted on the basis of Article 9(5) of Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (OJ 2009 L 343, p. 51) (now Article 9(5) of the basic regulation). Those provisions imposed an anti-dumping duty ‘on imports’ of products entering EU territory. Thus, those provisions, like the entire system established by the basic regulation, and in particular Article 21(1) thereof, do not apply to third-country producers as such, but only to third-country producers exporting their products to the European Union.
106In the case which gave rise to the judgment of 6 November 2018, Montessori (C‑622/16 P to C‑624/16 P, EU:C:2018:873), both the applicant and its competitors fell within the scope of the law on State aid, inasmuch as they were operating within the internal market. Furthermore, under the system of legal rules which thus applied to both it and its competitors, the applicant had the right to have its competitive position preserved (see paragraph 81 above). The Commission decision that was challenged had been adopted on the basis of that system of rules and authorised a national measure introducing, within the system, a difference of treatment which was liable to put the applicant in an unfavourable competitive position.
107That is also the case here.
108As already pointed out, Article 21(1) of the basic regulation provides that, in determining whether it is in the interest of the European Union for anti-dumping duties to be applied, it is necessary to assess of all the various interests taken as a whole, including the interests of users of the product concerned.
109It was pursuant to Article 21(1) of the basic regulation, which refers to users of the product concerned – including, in the present case, all manufacturers of adhesives – that Article 1(4) of Implementing Regulation 2020/1336 was adopted (see paragraph 27 above).
110Thus, both manufacturers of liquid adhesives and their competitors manufacturing dry-blend adhesives fall within the scope of the basic regulation and, furthermore, have their interests taken into account in the application of that regulation.
111It must therefore be held that the case-law of the Court of Justice cited in paragraph 79 above does not preclude a finding that the exemption at issue has legal effects on the situation of manufacturers of liquid adhesives, inasmuch as that exemption may put those manufacturers in an unfavourable competitive position.
112Furthermore, it is true that, in the field of State aid, competitors of the beneficiaries of a national measure exempting them from a liability are, in principle, directly subject to that measure, as was the position in the cases which gave rise to the judgment of 6 November 2018, Montessori (C‑622/16 P to C‑624/16 P, EU:C:2018:873, paragraphs 6 and 50).
113In the present case, however, the applicant, as a user of PVAs, is not directly subject to the anti-dumping duties, which – as can be seen from Article 1(1) of Implementing Regulation 2020/1336 – are imposed on imports.
114Nonetheless, anti-dumping duties are liable to be passed on, in whole or in part, to purchasers of the product concerned within the European Union, and thus, in the present case, to users of PVAs, including manufacturers of liquid adhesives.
115Article 12 of the basic regulation provides that the Commission may reopen an investigation, within the meaning of Article 6 of that regulation, in order to examine whether the anti-dumping duties have affected prices, where it appears that there has been insufficient movement in the resale prices or subsequent selling prices in the European Union.
116Furthermore, the Commission, in so far as it considered it necessary, in the present case, to provide for an exemption from the anti-dumping duties for undertakings producing PVAs for use in the manufacturing of dry-blend adhesives, took the view that, in the absence of such an exemption, PVA users manufacturing such adhesives would bear some or all of the additional costs represented by the anti-dumping duties. There is nothing in the file to indicate that the situation of PVA users manufacturing liquid adhesives is different in this regard.
117Thus, the fact that the applicant is also an importer of PVAs (see paragraph 6 above) can be left aside, it being sufficient to observe that, as a user of that product, it will bear some or all of the anti-dumping duties imposed by Implementing Regulation 2020/1336.
118It follows from the considerations set out in paragraphs 112 to 117 above that the lack of any obligation on the part of the applicant, as a user of PVAs competing with the beneficiaries of the exemption at issue, to pay the anti-dumping duties itself does not affect the conclusion reached in paragraph 111 above.
119Next, it is necessary to determine whether, as a result of the exemption at issue, the applicant is liable to be put in an unfavourable competitive position.
120In that regard, in paragraph 46 of the judgment of 6 November 2018, Montessori (C‑622/16 P to C‑624/16 P, EU:C:2018:873), the Court of Justice added that, while it is not for the EU judicature, at the stage of the examination of admissibility, to rule definitively on the competitive relationships between an applicant and the beneficiaries of the national measures assessed in a decision of the Commission on State aid, a direct effect on such an applicant cannot be deduced from the mere potential existence of a competitive relationship.
121The Court of Justice stated that, given that the condition of direct concern requires the contested measure to produce effects directly on the applicant’s legal situation, the EU judicature must ascertain whether the applicant has adequately explained the reasons why the Commission’s decision is liable to place him or her in an unfavourable competitive position and thus to produce effects on his or her legal situation (judgment of 6 November 2018, Montessori, C‑622/16 P to C‑624/16 P, EU:C:2018:873, paragraph 47).
122With regard to the facts under consideration in that case, the Court of Justice held that the applicants, by demonstrating that they were operating in the same market as beneficiaries of the aid at issue, had adequately explained the reasons why the decision at issue was liable to place them in an unfavourable competitive position and, consequently, that that decision directly affected their legal situation, in particular their right not to be subject in that market to competition distorted by the measures in question (judgment of 6 November 2018, Montessori, C‑622/16 P to C‑624/16 P, EU:C:2018:873, paragraph 50).
123In the present case, the applicant has explained, in detail and without being contradicted in that respect, that it conducts its activity in the same market for goods and the same geographical market as one of the economic operators benefiting from the exemption at issue. It manufactures liquid PVA-based adhesive for use in the EU carton board industry. It adds that liquid adhesive and dry-blend adhesive are substitutable and that the costs borne by its customers as a result of the anti-dumping duties could lead them to change suppliers and purchase from producers of dry-blend adhesives instead.
124The applicant has thus explained the reasons why the exemption at issue is liable to place it in an unfavourable competitive position.
125The first of the criteria referred to in paragraph 71 above must therefore be held to be satisfied, and with it the condition of direct concern as a whole.
126It follows from all the considerations set out in paragraphs 49 to 125 above that the three conditions laid down in the third limb of the fourth paragraph of Article 263 TFEU, and set out in paragraph 44 above, are satisfied. It is therefore unnecessary to consider whether the conditions laid down in the second limb of the fourth paragraph of Article 263 TFEU are also satisfied.
127The Commission’s alternative plea of inadmissibility (see paragraph 12 above) must therefore be examined.
3.Whether there is a challengeable act
128The Commission submits, in the event of the Court holding that the applicant is directly concerned by the exemption at issue, that the action is nevertheless inadmissible, on the basis that Article 1(4) of Implementing Regulation 2020/1336 is not a challengeable act, as it does not affect the applicant’s interests by bringing about a distinct change in its legal position. According to the Commission, the potential relaxation of the case-law on the condition of direct concern that would result from the transposition, to the present case, of the approach taken by the Court of Justice in the judgment of 6 November 2018, Montessori (C‑622/16 P to C‑624/16 P, EU:C:2018:873), would create a risk of actio popularis, and, in order to counter that risk, ought to be accompanied by a requirement for the applicant to demonstrate, in relation to the condition requiring a challengeable act, that there has been a distinct change it its legal position.
129As a preliminary point, it must be observed that Article 1(4) of Implementing Regulation 2020/1336 is intended to exempt imports of PVAs originating in China from the definitive anti-dumping duties imposed by Article 1(1) of that regulation if the PVAs are imported for the manufacturing of dry-blend adhesives, produced and sold in powder form for the carton board industry.
130Article 1(4) of Implementing Regulation 2020/1336 thus produces legal effects vis-à-vis third parties, for the purposes of the first paragraph of Article 263 TFEU.
131However, the Court of Justice has held that any measure the legal effects of which are binding on, and capable of affecting the interests of, the applicant by bringing about a distinct change in his legal position is an act which may be the subject of an action for annulment under Article 263 TFEU (judgment of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 9).
132In that regard, the case-law cited in paragraph 131 above was developed in the context of actions brought before the EU judicature by natural or legal persons against measures of which they were the addressees. Where, as in the present case, an action for annulment is brought by a non-privileged applicant against a measure that has not been addressed to it, the requirement that the binding legal effects of the measure being challenged must be capable of affecting the interests of the applicant by bringing about a distinct change in his or her legal position overlaps with the admissibility conditions pertaining to actions for annulment, as they stood prior to the entry into force of the Lisbon Treaty, or in other words the conditions now set out in the fourth paragraph of Article 263 TFEU, with the exception of the third limb of that paragraph (see, to that effect, judgment of 13 October 2011, Deutsche Post and Germany v Commission, C‑463/10 P and C‑475/10 P, EU:C:2011:656, paragraph 38, and order of 15 April 2021, Validity and Center for Independent Living v Commission, C‑622/20 P, not published, EU:C:2021:310, paragraph 39).
133Thus, that case-law 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 second limb of the fourth paragraph of Article 263 TFEU, namely the conditions of direct concern and individual concern.
134Similarly, the case-law cited in paragraph 131 above 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.
135In the first place, it appears from the legislative history of Article III‑365(4) of the draft Treaty establishing a Constitution for Europe, the content of which was repeated in the same words in the fourth paragraph of Article 263 TFEU, that the addition of the third limb to that provision was intended to broaden the conditions of admissibility of actions for annulment with respect to natural and legal persons, and the only acts of general application for which a restrictive approach was to be maintained were legislative acts (judgment of 6 November 2018, Montessori, C‑622/16 P to C‑624/16 P, EU:C:2018:873, paragraph 26).
136Thus, the objective of the third limb of the fourth paragraph of Article 263 TFEU is to relax the conditions of admissibility of actions for annulment brought by natural and legal persons against all acts of general application, with the exception of those of a legislative nature (judgment of 6 November 2018, Montessori, C‑622/16 P to C‑624/16 P, EU:C:2018:873, paragraph 27).
137To impose an obligation on an applicant meeting all the conditions laid down in the third limb of the fourth paragraph of Article 263 to demonstrate a ‘distinct’ change in his or her legal position in order to demonstrate that the requirement for a challengeable act is satisfied would be to limit the relaxation of the conditions of admissibility of actions desired by the authors of the FEU Treaty.
138In the second place, the objective pursued by the third limb of the fourth paragraph of Article 263 TFEU also consists, as is apparent from its drafting history, in ensuring that individuals do not have to break the law in order to have access to a court (judgments of 19 December 2013, Telefónica v Commission, C‑274/12 P, EU:C:2013:852, paragraph 27, and of 6 November 2018, Montessori, C‑622/16 P to C‑624/16 P, EU:C:2018:873, paragraph 58).
139In the present case, if the action were held to be inadmissible on the basis that the applicant had not demonstrated a distinct change in its legal position, that might lead the applicant, if it wished to pursue its action, to submit a request to the competent customs authority seeking the benefit of the exemption at issue. However, such an obligation would be artificial, as has been noted in paragraph 68 above.
140In the light of the considerations set out in paragraphs 129 to 139 above, it must be concluded that the Commission is not justified in raising a plea of inadmissibility on the basis that Article 1(4) of Implementing Regulation 2020/1336 does not have binding legal effects on the applicant capable of affecting its interests by bringing about a distinct change in its legal position.
141The plea of inadmissibility raised by the Commission in that regard must therefore be dismissed.
142It should be added that the risk of actio popularis referred to by the Commission has not been established. The finding that the applicant is directly concerned is restricted, in the present judgment, to the situation where an exemption from anti-dumping duties introduces, within a scheme applicable to certain users of the product concerned, a difference of treatment giving rise to an unfavourable competitive situation (see paragraphs 110 and 111 above).
143It follows from all of the foregoing that the present action is admissible.
B.Substance
144It must be observed that, by Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994) (OJ 1994 L 336, p. 1), the Council of the European Union adopted a decision concluding the Agreement establishing the World Trade Organisation (WTO), signed in Marrakesh on 15 April 1994, as well as the agreements appearing, inter alia, in Annex 1A thereto, which include the General Agreement on Tariffs and Trade 1994 (OJ 1994 L 336, p. 11) and the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (OJ 1994 L 336, p. 103, ‘the Anti-Dumping Agreement’).
145In the present case, the applicant, which submits that Article 1(4) of Implementing Regulation 2020/1336 infringes the first subparagraph of Article 9(5) of the basic regulation, also relies on the first sentence of Article 9.2 of the Anti-Dumping Agreement.
146The applicant points out that the first subparagraph of Article 9(5) of the basic regulation and the first sentence of Article 9.2 of the Anti-Dumping Agreement provide that anti-dumping duties are imposed on a non-discriminatory basis. It submits that the only permitted exception relates to imports from sources in respect of which an undertaking has been accepted.
147As a result of the exemption, discriminatory anti-dumping duties have thus been imposed to the detriment of manufacturers of liquid adhesives, as those manufacturers are subject to the duties while manufacturers of dry-blend adhesives are exempt from them.
148The exemption at issue thus infringes the provisions referred to in paragraph 145 above.
149Furthermore, the applicant submits that only one of the Chinese PVA exporters can benefit from the exemption at issue, that exporter being the sole supplier of Cordial, the manufacturer of dry-blend adhesives whose situation was taken into account by the Commission in Implementing Regulation 2020/1336. It also claims that the exemption at issue discriminates against all the other Chinese PVA exporters.
150The Commission, in responding to the complaint set out in paragraphs 145 to 148 above, maintains, first, that the difference of treatment arising from the exemption at issue does not fall within the scope of the duty of non-discrimination, laid down by the first subparagraph of Article 9(5) of the basic regulation, second, that even if it did, that difference of treatment would not constitute discrimination within the meaning of that provision, and third, that, even if a finding of discrimination were to be made, such discrimination would be objectively justified by the interest of the European Union, pursuant to Article 21 of the basic regulation.
151The Commission also disputes that the exemption at issue is discriminatory in the way described in paragraph 149 above.
152It is apparent from the considerations set out in paragraphs 144 to 149 above that the applicant’s sole plea is divided into two limbs, the first based on discrimination between users of PVAs within the European Union and the second on discrimination between Chinese exporters of PVAs.
1.Discrimination between users of PVAs
153Article 9(5) of the basic regulation provides as follows:‘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 for imports from those sources from which undertakings under the terms of this Regulation have been accepted.…’
154The Commission submits that the first subparagraph of Article 9(5) of the basic regulation and, in particular, the expression ‘on a non-discriminatory basis’ are not applicable to a difference of treatment between users of the product concerned, which are established in the territory of the WTO member imposing the anti-dumping duties.
155In that regard, it must be observed that the applicant does not rely on a breach of the principle of equal treatment. Its complaint of discrimination between PVA users is based solely on infringement of the first subparagraph of Article 9(5) of the basic regulation.
156It its pleadings, the applicant states that the first subparagraph of Article 9(5) of the basic regulation, unlike the general principle of equal treatment, provides for only one exception to the imposition of anti-dumping duties, which relates to imports from sources in respect of which an undertaking has been accepted. Thus, it submits that any other exemption is necessarily discriminatory. It adds that the strict application of the general principle of equal treatment by that provision is very specific.
157Bearing in mind the manner in which the applicant has defined the scope of its complaint, it must be concluded that if, as the Commission submits, the first subparagraph of Article 9(5) of the basic regulation does not apply to a difference of treatment between users of the product concerned, the complaint is ineffective, which must therefore be determined.
158For the purposes of interpreting the first subparagraph of Article 9(5) of the basic regulation and, in particular, determining its scope, the parties refer to the first sentence of Article 9.2 of the Anti-Dumping Agreement and the way in which it has been interpreted by the WTO dispute settlement bodies.
159The first sentence of Article 9.2 of the Anti-Dumping Agreement provides as follows:‘When an anti-dumping duty is imposed in respect of any product, such anti-dumping duty shall be collected in the appropriate amounts in each case, on a non-discriminatory basis on imports of such product from all sources found to be dumped and causing injury, except as to imports from those sources from which price undertakings under the terms of this Agreement have been accepted …’
160The applicant’s reference to the first sentence of Article 9.2 of the Anti-Dumping Agreement must be understood as seeking to interpret the first subparagraph of Article 9(5) of the basic regulation in accordance with that provision.
(a)The extent to which it is appropriate to take account of the provisions of the agreement establishing the WTO, and of its annexes, and of the reports of WTO bodies involved in the dispute settlement process
161The extent to which regard can usefully be had, first, to the provisions of the agreement establishing the WTO and of its annexes, and second, to the reports of WTO bodies involved in the dispute settlement process, must be determined for the purposes of interpreting provisions of secondary legislation, such as the first subparagraph of Article 9(5) of the basic regulation.
(1)The provisions of the agreement establishing the WTO and of its annexes
162The Court of Justice has held, in relation to the influence that an international agreement to which the European Union is party, such as the General Agreement on Tariffs and Trade 1994, may have on the interpretation of a provision of secondary legislation, that the primacy of international agreements concluded by the Union over provisions of secondary EU legislation means that such provisions must, so far as is possible, be interpreted in a manner that is consistent with those agreements (judgments of 10 September 1996, Commission v Germany, C‑61/94, EU:C:1996:313, paragraph 52, and of 7 June 2007, Řízení Letového Provozu, C‑335/05, EU:C:2007:321, paragraph 16).
163Before considering whether such a consistent interpretation is possible in the present case, it should first be observed that the provisions of the basic regulation, inasmuch as they correspond to the provisions of the Anti-Dumping Agreement, are to be interpreted, as far as possible, in the light of the corresponding provisions of that agreement (see judgment of 14 July 2021, Interpipe Niko Tube and Interpipe Nizhnedneprovsky Tube Rolling Plant v Commission, T‑716/19, EU:T:2021:457, paragraph 98 and the case-law cited).
164Given that the first sentence of Article 9.2 of the Anti-Dumping Agreement and Article 9(5) of the basic regulation are in virtually identical terms, the latter provision corresponds to the former.
165It has been held, in that regard, that the first sentence of Article 9.2 of the Anti-Dumping Agreement is equivalent in scope to the first subparagraph of Article 9(5) of the basic regulation, in that it prohibits discriminatory treatment when anti-dumping duties imposed on a product are collected on the basis of the source of the imports in question (see, by analogy, judgment of 17 December 2008, HEG and Graphite India v Council, T‑462/04, EU:T:2008:586, paragraph 39).
166Consequently, the first subparagraph of Article 9(5) of the basic regulation must be interpreted, so far as is possible, in a manner that is consistent with the first sentence of Article 9.2 of the Anti-Dumping Agreement.
167It should be added that the possibility, referred to in the case-law of the Court of Justice cited in paragraph 162 above, of interpreting a provision of secondary legislation in the light of an international agreement, does not arise where the provision is clear and unambiguous and thus does not require any interpretation, as the expression ‘so far as is possible’ attests. If that case-law were applicable in such a case, the principle of consistent interpretation of secondary EU law would serve as the basis for an interpretation of that provision contra legem, which cannot be permitted (see, by analogy, judgment of 13 July 2018, Confédération nationale du Crédit mutuel v ECB, T‑751/16, EU:T:2018:475, paragraph 34). For the same reason, where the provision of secondary legislation at issue is unambiguous, a consistent interpretation cannot be applied when all possible interpretations of that provision are contrary to the higher-ranking rule.
168Thus, where the provision of secondary legislation at issue is unequivocal, and also where it is contrary to the higher-ranking rule in the international agreement, that provision cannot be interpreted in a manner consistent with that rule.
169In the present case, neither of those conditions is met.
170First of all, the expression ‘on a non-discriminatory basis’, in Article 9(5) of the basic regulation is open to several interpretations.
171Next, given that it is similar to the first sentence of Article 9.2 of the Anti-Dumping Agreement, the first subparagraph of Article 9(5) of the basic regulation cannot be regarded as contrary to that provision.
172Consequently, for the purposes of determining its scope, the expression ‘on a non-discriminatory basis’ in the first sentence of Article 9(5) of the basic regulation must be interpreted in a manner consistent with the expression ‘on a non-discriminatory basis’ in the first sentence of Article 9.2 of the Anti-Dumping Agreement.
173Furthermore, in the initial interpretation of that latter provision, other relevant provisions of the agreement establishing the WTO and its annexes can be taken into account. An international treaty is to be interpreted in accordance with the ordinary meaning to be given to the terms of that treaty in their context and in the light of the object and purpose of the treaty (see, to that effect, judgment of 11 July 2018, Bosphorus Queen Shipping, C‑15/17, EU:C:2018:557, paragraph 67), as is provided, in relation to the interpretation of international treaties, by Article 31(1) of the Vienna Convention on the Law of Treaties of 23 May 1969 (United Nations Treaty Series, Vol. 1155, p. 331), which forms part of the EU legal order (judgment of 25 February 2010, Brita, C‑386/08, EU:C:2010:91, paragraph 42) and is taken into account by the WTO Appellate Body (report of 20 May 1996 on the dispute ‘United States – Standards for Reformulated and Conventional Gasoline (WT/DS2/AB/R)’).
(2)Reports of WTO bodies involved in the dispute settlement process
174The Court of Justice has already held that the general international law principle of compliance with treaty commitments (pacta sunt servanda), laid down in Article 26 of the Vienna Convention on the Law of Treaties, means that the EU Courts must, for the purposes of interpreting and applying the Anti-Dumping Agreement, take account of the interpretation that the WTO bodies involved in the dispute settlement process have given to the various provisions of that agreement (see, to that effect, judgment of 20 January 2022, Commission v Hubei Xinyegang Special Tube, C‑891/19 P, EU:C:2022:38, paragraph 32 and the case-law cited).
175Thus, the Court of Justice has already referred to WTO Panel and Appellate Body reports in support of its interpretation of certain provisions of agreements annexed to the agreement establishing the WTO (see judgment of 20 January 2022, Commission v Hubei Xinyegang Special Tube, C‑891/19 P, EU:C:2022:38, paragraph 33 and the case-law cited).
176The Court of Justice has also accepted that the reports of WTO bodies involved in the dispute settlement process can be relied on for the purposes of interpreting EU law (judgments of 10 November 2011, X and X BV, C‑319/10 and C‑320/10, not published, EU:C:2011:720, paragraph 46, and of 20 January 2022, Commission v Hubei Xinyegang Special Tube, C‑891/19 P, EU:C:2022:38, point 34).
177The General Court has held, for its part, that there is nothing to preclude it from referring to reports of WTO bodies involved in the dispute settlement process when it comes to interpreting the provisions of the basic regulation in the light of the provisions of the Anti-Dumping Agreement (see, by analogy, judgment of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission, T‑300/16, EU:T:2019:235, paragraph 103 and the case-law cited).
178It follows from the considerations set out in paragraphs 174 to 177 above that the first subparagraph of Article 9(5) of the basic regulation, and in particular the expression ‘on a non-discriminatory basis’ which appears in that article, is to be interpreted in a manner consistent with the interpretation given by the WTO dispute settlement bodies to the first sentence of Article 9.2 of the Anti-Dumping Agreement.
(b)Whether the prohibition on imposing discriminatory anti-dumping duties is applicable to users of the product concerned
179In the first place, the WTO Appellate Body has stated, in paragraph 335 of the report of 28 July 2011 on the dispute ‘European Communities – Definitive Anti-Dumping Measures on Certain Iron or Steel Fasteners from China (WT/DS397/R)’, that the Anti-Dumping Agreement contains rules that focus on products as well as importers, exporters, and producers. In the same paragraph of that report, it stated that the first sentence of Article 9.2 of the Anti-Dumping Agreement refers to both products and suppliers.
180It is true that the Appellate Body did not expressly rule out the possibility that the expression ‘on a non-discriminatory basis’ in the first sentence of Article 9.2 of the Anti-Dumping Agreement could be applied to users of the product concerned established in the territory of the WTO member imposing the anti-dumping duties. Nonetheless, those economic operators are not covered by the prohibition on discrimination contained in a provision which, first, does not refer to them, and second, appears in an agreement which focuses on the products themselves and on economic operators other than them.
181In the second place, it follows from the wording of Article 9.2 of the Anti-Dumping Agreement that that article concerns only the origin of the products, and not their use in the territory of the WTO member imposing the anti-dumping duties.
182Article 9.2 of the Anti-Dumping Agreement refers to the suppliers and sources of the product, and not to its users.
183With regard, in particular, to the sources of the product, the first sentence of Article 9.2 of the Anti-Dumping Agreement provides that anti-dumping duties are to be collected on a non-discriminatory basis on imports of the product concerned, ‘from all sources’, with the exception of imports ‘from those sources’ from which price undertakings under the terms of this agreement have been accepted.
184The WTO Appellate Body stated, in paragraph 338 of the report of 28 July 2011 on the dispute ‘European Communities – Definitive Anti-Dumping Measures on Certain Iron or Steel Fasteners from China (WT/DS397/R)’, that the term ‘sources’, which appeared twice in the first sentence of Article 9.2 of the Anti-Dumping Agreement, referred to individual ‘exporters or producers’ and not to a country as a whole. It stated in paragraph 354 of the report that the term ‘sources’ meant ‘suppliers’. This latter term, in the context of Article 9.2 of the Anti-Dumping Agreement, thus appears to be interchangeable with the terms ‘exporters’ or ‘producers’.
185It is true, as the applicant rightly pointed out, that the question being addressed by the WTO Appellate Body in the dispute concerned was whether, as the European Union submitted (see paragraphs 333 and 337 of the report), the term ‘sources’, in the first sentence of Article 9.2 of the Anti-Dumping Agreement, could refer to a country as a whole, rather than referring solely to the exporting undertakings considered individually.
186Nonetheless, irrespective of the question under consideration by the WTO Appellate Body, it chose, in answering that question, to explicate the meaning of the term ‘sources’, and there is nothing in its answer to indicate that the scope of that meaning was limited to the answer to the question referred to in paragraph 185 above.
187The definition of the term ‘sources’ given by the WTO Appellate Body, inasmuch as that definition refers to producers, exporters and suppliers, confirms that Article 9.2 of the Anti-Dumping Agreement is only concerned with the origin of the products, and not their use in the territory of the WTO member imposing the anti-dumping duties. That definition thus supports the conclusion set out in paragraph 180 above.
188In the third place, it can be observed that Articles I and III of the General Agreement on Tariffs and Trade 1994, which relate respectively to ‘General Most-Favoured-Nation Treatment’ and ‘National Treatment on Internal Taxation and Regulation’, and provide the basis for the prohibition of discrimination within the legal system established by the WTO, refer to discrimination between ‘nations’ and thus between products originating from different members of the organisation, and not to discrimination between products originating in one and the same WTO member.
189Having regard to all the matters set out in paragraphs 179 to 188 above, the first sentence of Article 9.2 of the Anti-Dumping Agreement 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.
190In the light of the considerations set out in paragraphs 162 to 172 above, the expression ‘on a non-discriminatory basis’ in the first subparagraph of Article 9(5) of the basic regulation must be interpreted in the same way.
191Consequently, as the first subparagraph of Article 9(5) of the basic regulation does not apply to users of the product concerned, it does not assist the applicant to rely on that provision in order to challenge a difference in the treatment of users of the product concerned established in the European Union.
192The present complaint must therefore be dismissed as ineffective.
2.Discrimination between the various Chinese exporters
193The applicant observes that Cordial has only one supplier of PVAs, as stated in recital 618 of Implementing Regulation 2020/1336, and that that supplier is a Chinese exporter.
194Given that the exemption at issue is limited to PVAs for use in the manufacturing of dry-blend adhesives, which are produced by Cordial, the applicant submits that the Chinese exporter is receiving favourable treatment in comparison to other Chinese exporters of PVAs.
195In that regard, it is clear from Article 1(4) of Implementing Regulation 2020/1336 that, by making the exemption at issue subject to the condition that the imported PVAs are to be used in the manufacturing of dry-blend adhesives, produced and sold in powder form for the carton board industry, that provision is laying down general and abstract conditions (see paragraph 51 above). The exemption may thus apply to the products of any economic operator exporting PVAs for use in the manufacturing of dry-blend adhesives (see paragraph 52 above). It is thus not exclusive to Cordial’s supplier.
196Therefore, the products of all Chinese exporters of PVAs are, in principle, eligible for the exemption at issue.
197However, the applicant submits that, in reality, the exemption at issue only benefits Cordial’s Chinese supplier.
198It must be recalled that the General Court may refer to the reports of WTO bodies involved in the dispute settlement process when it is interpreting the basic regulation in the light of the Anti-Dumping Agreement (see paragraphs 174 to 178 above).
199Paragraph 7.101 of the panel report of 7 April 2000 on the dispute ‘Canada – Patent Protection of Pharmaceutical Products (WT/DS114)’ refers to the concept of ‘de facto discrimination’. It is stated in that paragraph that de facto discrimination is a general term describing the legal conclusion that an ostensibly neutral measure transgresses a non-discrimination norm because its actual effect is to impose a disadvantageous difference of treatment.
200Furthermore, the concept of ‘de facto discrimination’ is already employed in EU law, albeit in the field of State aid, for the purposes of finding that a national measure, although not taking the form of a tax advantage derogating from an ordinary tax system, but rather involving the application of a general tax scheme based on general criteria, operated de facto discrimination against undertakings that were in a comparable situation in the light of the objective pursued by that regime (judgment of 21 December 2016, Commission v World Duty Free Group and Others, C‑20/15 P and C‑21/15 P, EU:C:2016:981, paragraph 74).
201Lastly, the concept of ‘de facto discrimination’ is related to the concept – more widespread in EU law – of ‘indirect discrimination’ (see, to that effect, judgments of 20 October 1993, Spotti, C‑272/92, EU:C:1993:848, paragraphs 17 and 18, and of 7 May 1998, Clean Car Autoservice, C‑350/96, EU:C:1998:205, paragraphs 29 to 31), a concept which is also recognised by the European Court of Human Rights (ECtHR, 13 November 2007, D.H. and Others v. the Czech Republic, CE:ECHR:2007:1113JUD005732500, § 193 to 195), which refers to any covert form of discrimination that leads to the same result as overt discrimination (see, to that effect, judgment of 24 September 1998, Commission v France, C‑35/97, EU:C:1998:431, paragraphs 37 and 38).
202It is thus necessary to determine, on the basis of the material submitted by the applicant in support of the assertion referred to in paragraph 197 above, whether the exemption at issue gives rise to indirect or de facto discrimination between Chinese exporters of PVAs.
203In the first place, the applicant’s argument that the exemption at issue will apply to only one Chinese exporter of PVAs – Cordial’s supplier – necessitates consideration of whether that exemption might only benefit Cordial.
204In that regard, the procedure for manufacturing dry-blend adhesives produced and sold in powder form for the carton board industry is described as innovative in recital 623 of Implementing Regulation 2020/1336.
205Nonetheless, it is not apparent from the file, or in particular from the material submitted by the applicant, that Cordial is the only manufacturer of dry-blend adhesives in the European Union.
206Furthermore, there is nothing in the file, or in particular in the material submitted by the applicant, to indicate that it would be impossible or especially difficult for any economic operator other than Cordial to manufacture such products. In that regard, it is not apparent from the documents in the file that there is any legal, technical or financial barrier to prevent such an operator entering the market for dry-blend adhesives.
207Thus, the possibility of other manufacturers of dry-blend adhesives being present in or entering the market for such adhesives cannot be excluded. There is no reason to assume that other manufacturers of dry-blend adhesives do or would purchase from the same PVA supplier as Cordial and not from other suppliers, in particular Chinese exporters of PVAs. Consequently, it is conceivable that Chinese exporters of PVAs other than Cordial’s supplier could benefit from the exemption at issue.
208In the second place, it is stated in recitals 618 and 624 of Implementing Regulation 2020/1336 that the type of PVA imported by Cordial was specifically developed in cooperation with its supplier, and that a long-term relationship would be required in order for a supplier to adapt to Cordial’s product requirements.
209However, the persistence of a situation in which Cordial has only one supplier depends on a decision made by producers of PVAs, particularly Chinese exporters of such products, and not on external factors which are imposed on them (see, to that effect, judgment of 14 March 1990, Nashua Corporation and Others v Commission and Council, C‑133/87 and C‑150/87, EU:C:1990:115, paragraphs 40 and 41).
210There is nothing in the file, or in particular in the evidence produced by the applicant, to indicate that Chinese exporters of PVAs other than Cordial’s supplier would be unable to adapt their manufacturing processes in order to meet the specific requirements of Cordial referred to in paragraph 208 above.
211Thus, it is possible that Chinese exporters other than Cordial’s supplier would be able, if they so wished, to meet Cordial’s supply requirements.
212Furthermore, it is apparent from recital 624 of Implementing Regulation 2020/1336 that Cordial submitted evidence that it had previously attempted to purchase PVA from a Taiwanese producer, but was unable to conclude any deal, as that producer sells its product exclusively via a trader in the European Union, and was unwilling to adapt its products to Cordial’s requirements.
213Cordial’s desire to limit its dependence on its PVA supplier is apparent from recital 624 of Implementing Regulation 2020/1336 and, in particular, from the following extract, which is not disputed by the applicant:‘[Cordial] has already tried to establish new partnerships but, due to its small size, it was not able to establish a long-term relationship with alternative suppliers … The company submitted evidence that it has indeed tried in the past to purchase PVA from a Taiwanese producer, but could not conclude any deal, as this producer sells exclusively via a trader in the [European Union] and was not willing to adapt its products to Cordial’s requirements …’
214It follows from that recital that Cordial would be inclined to respond favourably to approaches from other exporters of PVAs – in particular Chinese exporters – wishing to supply it with such products.
215That supports the conclusion, reached in paragraph 211 above, that Chinese exporters other than Cordial’s supplier could, if they wished, meet Cordial’s supply requirements.
216It follows from the findings set out in paragraphs 203 to 215 above that the existence of obstacles which, in practice, prevent the exemption at issue from applying to Chinese exporters of PVAs other than Cordial’s supplier has not been established.
217Therefore, the existence of a difference in treatment operating to the disadvantage of Chinese exporters of PVAs other than Cordial’s supplier has not been demonstrated. In the absence of such a difference in treatment, no de facto discrimination can be regarded as having been established (see, to that effect, judgment of 23 October 2003, Changzhou Hailong Electronics & Light Fixtures and Zhejiang Yankon v Council, T‑255/01, EU:T:2003:282, paragraph 61).
218It follows from all the foregoing that the second complaint must be dismissed, and with it the plea in its entirety.
219The action must therefore be dismissed.
IV.Costs
220Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
221Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
Operative part
On those grounds,THE GENERAL COURT (Seventh Chamber, Extended Composition)hereby:
1.Dismisses the action;
2.Orders Grünig KG to pay the costs.
Delivered in open court in Luxembourg on 21 December 2022.
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