Contents
Judgment of the Court (Seventh Chamber)22 June 2023note(Reference for a preliminary ruling — Commercial policy — Protection against dumping — Imports of biodiesel originating in Argentina and Indonesia — Validity of Implementing Regulation (EU) No 1194/2013 — Admissibility — No action for annulment brought by the applicant in the main proceedings — Importer — Determination of dumping — Factors to be taken into consideration)In Case C‑268/22,REQUEST for a preliminary ruling under Article 267 TFEU from the Nederlandstalige rechtbank van eerste aanleg Brussel (Brussels Court of First Instance (Dutch-speaking), Belgium), made by decision of 14 March 2022, received at the Court on 13 April 2022, in the proceedingsVitol SAvBelgische Staat,THE COURT (Seventh Chamber),composed of M.L. Arastey Sahún, President of the Chamber, F. Biltgen and N. Wahl (Rapporteur), Judges,Advocate General: T. Ćapeta,Registrar: A. Calot Escobar,having regard to the written procedure,after considering the observations submitted on behalf of:– Vitol SA, by P. De Baere and J. Van den Bon, advocaten,– the Belgian Government, by S. Baeyens, J.‑C. Halleux and C. Pochet, acting as Agents,– the Greek Government, by V. Baroutas and M. Tassopoulou, acting as Agents,– the Council of the European Union, by B. Driessen and P. Mahnič, acting as Agents, and by N. Tuominen, avocată,– the European Commission, by P.‑J. Loewenthal, G. Luengo and J. Zieliński, acting as Agents,having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,gives the following
Judgment
1This request for a preliminary ruling concerns the validity of Council Implementing Regulation (EU) No 1194/2013 of 19 November 2013 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of biodiesel originating in Argentina and Indonesia (OJ 2013 L 315, p. 2; ‘the regulation at issue’), as amended by Commission Implementing Regulation (EU) 2017/1578 of 18 September 2017 (OJ 2017 L 239, p. 9).
2The request has been made in proceedings between Vitol SA and the Belgische Staat (Belgian State) concerning the reimbursement to that company of anti-dumping duties paid on the importation of biodiesel from Argentina.
Legal context
The basic regulation
3At the time the regulation at issue was adopted, the provisions governing the imposition of anti-dumping measures by the European Union were contained in Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European [Union] (OJ 2009 L 343, p. 51; ‘the basic regulation’).
4Article 1 of the basic regulation provided:1. An anti-dumping duty may be applied to any dumped product whose release for free circulation in the [Union] causes injury.2. A product is to be considered as being dumped if its export price to the [Union] is less than a comparable price for the like product, in the ordinary course of trade, as established for the exporting country.3. The exporting country shall normally be the country of origin. However, it may be an intermediate country, except where, for example, the products are merely transhipped through that country, or the products concerned are not produced in that country, or there is no comparable price for them in that country.4. For the purpose of this Regulation, “like product” means a product which is identical, that is to say, alike in all respects, to the product under consideration, or in the absence of such a product, another product which, although not alike in all respects, has characteristics closely resembling those of the product under consideration.’
5Article 2 of that regulation concerns the determination of dumping. Paragraphs 3 and 5 of that article, which relate to the normal value, stated:3. When there are no or insufficient sales of the like product in the ordinary course of trade, or where because of the particular market situation such sales do not permit a proper comparison, the normal value of the like product shall be calculated on the basis of the cost of production in the country of origin plus a reasonable amount for selling, general and administrative costs and for profits, or on the basis of the export prices, in the ordinary course of trade, to an appropriate third country, provided that those prices are representative.A particular market situation for the product concerned within the meaning of the first subparagraph may be deemed to exist, inter alia, when prices are artificially low, when there is significant barter trade, or when there are non-commercial processing arrangements.…5. Costs shall normally be calculated on the basis of records kept by the party under investigation, provided that such records are in accordance with the generally accepted accounting principles of the country concerned and that it is shown that the records reasonably reflect the costs associated with the production and sale of the product under consideration.If costs associated with the production and sale of the product under investigation are not reasonably reflected in the records of the party concerned, they shall be adjusted or established on the basis of the costs of other producers or exporters in the same country or, where such information is not available or cannot be used, on any other reasonable basis, including information from other representative markets.Consideration shall be given to evidence submitted on the proper allocation of costs, provided that it is shown that such allocations have been historically utilised. In the absence of a more appropriate method, preference shall be given to the allocation of costs on the basis of turnover. Unless already reflected in the cost allocations under this subparagraph, costs shall be adjusted appropriately for those non-recurring items of cost which benefit future and/or current production.Where the costs for part of the period for cost recovery are affected by the use of new production facilities requiring substantial additional investment and by low capacity utilisation rates, which are the result of start-up operations which take place within or during part of the investigation period, the average costs for the start-up phase shall be those applicable, under the abovementioned allocation rules, at the end of such a phase, and shall be included at that level, for the period concerned, in the weighted average costs referred to in the second subparagraph of paragraph 4. The length of a start-up phase shall be determined in relation to the circumstances of the producer or exporter concerned, but shall not exceed an appropriate initial portion of the period for cost recovery. For this adjustment to costs applicable during the investigation period, information relating to a start-up phase which extends beyond that period shall be taken into account where it is submitted prior to verification visits and within three months of the initiation of the investigation.’
6Article 3 of the basic regulation, which concerns the determination of injury, provided, in paragraphs 4, 6 and 7 thereof, as follows:4.Where imports of a product from more than one country are simultaneously subject to anti-dumping investigations, the effects of such imports shall be cumulatively assessed only if it is determined that:(a) the margin of dumping established in relation to the imports from each country is more than de minimis as defined in Article 9(3) and that the volume of imports from each country is not negligible; and(b) a cumulative assessment of the effects of the imports is appropriate in light of the conditions of competition between imported products and the conditions of competition between the imported products and the like [Union] product.…6. It must be demonstrated, from all the relevant evidence presented in relation to paragraph 2, that the dumped imports are causing injury within the meaning of this Regulation. Specifically, this shall entail a demonstration that the volume and/or price levels identified pursuant to paragraph 3 are responsible for an impact on the [Union] industry as provided for in paragraph 5, and that this impact exists to a degree which enables it to be classified as material.7. Known factors other than the dumped imports which at the same time are injuring the [Union] industry shall also be examined to ensure that injury caused by these other factors is not attributed to the dumped imports under paragraph 6. Factors which may be considered in this respect include the volume and prices of imports not sold at dumping prices, contraction in demand or changes in the patterns of consumption, restrictive trade practices of, and competition between, third country and [Union] producers, developments in technology and the export performance and productivity of the [Union] industry.’
The provisional regulation
7On 27 May 2013, the European Commission adopted Regulation (EU) No 490/2013 imposing a provisional anti-dumping duty on imports of biodiesel originating in Argentina and Indonesia (OJ 2013 L 141, p. 6; ‘the provisional regulation’). In that regulation, the Commission found, inter alia, that imports of biodiesel originating in Argentina were being dumped, which was causing injury to the Union industry, and took the view that adopting an anti-dumping duty against those imports was in the interest of the European Union.
8Article 1(1) of that regulation stated:‘A provisional duty is hereby imposed on imports of fatty-acid mono-alkyl esters and/or paraffinic gasoils obtained from synthesis and/or hydro-treatment, of non-fossil origin, in pure form or as included in a blend, currently falling within … codes …, and originating in Argentina and Indonesia.’
The regulation at issue
9On 19 November 2013, by the regulation at issue, the Council of the European Union imposed a definitive anti-dumping duty on imports of biodiesel originating in Argentina and Indonesia.
10In the first place, with regard to the normal value of the like product in relation to Argentina, the Council confirmed the findings of the provisional regulation, namely that that value had to be constructed pursuant to Article 2(3) of the basic regulation, since the Argentine biodiesel market is heavily regulated by the State (recital 28 of the regulation at issue).
11As regards the costs of production, the Council accepted the Commission’s proposal to revise the findings of the provisional regulation and to disregard the costs of the main raw materials stated in the records of the Argentine exporting producers examined pursuant to Article 2(5) of the basic regulation. In its view, those data did not reasonably reflect the costs associated with the production of biodiesel in Argentina because the differential export tax system distorted the prices of the main raw materials on the Argentine domestic market. It therefore replaced them with the average of the reference prices of soya beans published by the Argentine Ministry of Agriculture for export free on board (FOB) during the investigation period (recitals 35 to 40 of the regulation at issue).
12In the second place, confirming most of the considerations contained in the provisional regulation, the Council found that the Union industry had suffered material injury, within the meaning of Article 3(6) of the basic regulation (recitals 105 to 142 of the regulation at issue), and that that injury had been caused by dumped imports of biodiesel originating in Argentina (recitals 144 to 157 of the regulation at issue). In that context, it found that other factors, including, in particular, imports made by the Union industry (recitals 151 to 160 of the regulation at issue), the low capacity utilisation of the Union industry (recitals 161 to 171 of the regulation at issue) and the system of double-counting of biodiesel made from waste oils in some Member States (recitals 173 to 179 of the regulation at issue) had been unable to break that causal link between the injury and the dumped imports of biodiesel originating in Argentina.
13In the third place, the Council confirmed that the adoption of the anti-dumping measures at issue was still in the interest of the European Union (recitals 190 to 201 of the regulation at issue).
14In the light of the dumping margins found and the level of the injury caused to the Union industry, the Council inter alia decided that the amounts secured by way of the provisional anti-dumping duties, imposed by the provisional regulation, should be definitively collected (recital 228 and Article 2 of the regulation at issue) and that a definitive anti-dumping duty should be imposed on imports of biodiesel originating in Argentina (Article 1(1) of the regulation at issue).
15By the judgments, all of 15 September 2016, PT Musim Mas v Council (T‑80/14, EU:T:2016:504); Unitec Bio v Council (T‑111/14, EU:T:2016:505); Molinos Río de la Plata and Others v Council (T‑112/14 to T‑116/14 and T‑119/14, EU:T:2016:509); Cargill v Council (T‑117/14, EU:T:2016:503); LDC Argentina v Council (T‑118/14, EU:T:2016:502); PT Ciliandra Perkasa v Council (T‑120/14, EU:T:2016:501); and PT Pelita Agung Agrindustri v Council (T‑121/14, not published, EU:T:2016:500) (together, ‘the judgments of 15 September 2016’), the General Court annulled Articles 1 and 2 of the regulation at issue in so far as it concerned the applicants in those cases.
16The General Court held, in essence, that the EU institutions had failed to establish to the requisite legal standard that there was appreciable distortion of the prices of the main raw materials used in the production of biodiesel in Argentina and Indonesia as a result of the differential export tax system, under which the raw materials and the biodiesel were taxed at different rates. The General Court considered that the EU institutions should not have taken the view that the prices of the raw materials were not reasonably reflected in the accounting records of the Argentine and Indonesian exporting producers and, therefore, should not have disregarded those records when constructing the normal value of the biodiesel produced in Argentina and Indonesia.
Regulation (EU) 2015/476
17Article 1 of Regulation (EU) 2015/476 of the European Parliament and of the Council of 11 March 2015 on the measures that the Union may take following a report adopted by the WTO Dispute Settlement Body concerning anti-dumping and anti-subsidy matters (OJ 2015 L 83, p. 6) provides:1.Whenever the [Dispute Settlement Body (DSB)] adopts a report concerning a Union measure taken pursuant to [the basic regulation] … (“disputed measure”), the Commission may take one or more of the following measures, whichever it considers appropriate, in accordance with the examination procedure referred to in Article 4(3):(a) repeal or amend the disputed measure; or(b) adopt any other special implementing measure deemed to be appropriate in the circumstances in order to bring the Union into conformity with the recommendations and rulings contained in the report.…3. In so far as it is appropriate to conduct a review before or at the same time as taking any measure under paragraph 1, that review shall be initiated by the Commission. The Commission shall provide information to the Member States once it decides to initiate a review.’
18Article 3 of that regulation provides:‘Any measures adopted pursuant to this Regulation shall take effect from the date of their entry into force and shall not serve as a basis for the reimbursement of the duties collected prior to that date, unless otherwise provided for.’
Implementing Regulation (EU) 2017/1578
19On 18 September 2017, the Commission adopted Implementing Regulation (EU) 2017/1578 amending Implementing Regulation (EU) No 1194/2013 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of biodiesel originating in Argentina and Indonesia (OJ 2017 L 239, p. 9).
20Implementing Regulation 2017/1578 follows, inter alia, the Panel Report, adopted on 26 October 2016 by the DSB of the World Trade Organization (WTO) in the dispute EU – Biodiesel (Argentina), according to which it had been concluded that the European Union had acted inconsistently with WTO law when it imposed anti-dumping duties on biodiesel originating in Argentina. As is apparent from recital 12 thereof, that regulation ‘seeks to correct WTO inconsistent aspects of the [regulation at issue] and to bring it into conformity with [the Panel Report and the Appellate Body Report]’.
21Recitals 130, 134 and 135 of Implementing Regulation 2017/1578 stated:(130) The Commission recalled that this review is initiated on the basis of the WTO enabling Regulation for the purpose of implementing the findings and recommendations of the Panel and Appellate Body in the dispute European Union – Anti-Dumping Measures on Biodiesel from Argentina (WT/DS 473/15). The review is thus limited to issues before the WTO and possible consequential and/or technical changes arising therefrom. Therefore, neither of Wilmar’s [(an Indonesian exporting producer)] claims [is] admissible. In addition, the Commission recalled that a similar claim regarding the profit margin was made by Wilmar already in the original investigation and rejected therein (see recitals 43 to 46 of the [regulation at issue]). Following disclosure the cooperating Argentine exporting producer COFCO Argentina S.A. (formerly known as Noble Argentina S.A.) submitted a request that the company be treated as a “newcomer” and be included in the list of companies with individual duty rates as “other cooperating companies”.…(134) On the basis of the … reassessment [initiated under Article 1(3) of Regulation 2015/476], the Commission concluded that the injurious dumping determined in the original investigation is confirmed.(135) The anti-dumping measures applicable to imports of biodiesel originating in Argentina and Indonesia imposed by [the regulation at issue] should therefore be maintained, with the revised dumping margins for Argentina recalculated as set out above.’
Implementing Regulation (EU) 2018/1570
22Recitals 89 to 94 of Commission Implementing Regulation (EU) 2018/1570 of 18 October 2018 terminating the proceedings concerning imports of biodiesel originating in Argentina and Indonesia and repealing Implementing Regulation (EU) No 1194/2013 (OJ 2018 L 262, p. 40) read as follows:(89) The Commission concludes it is not possible to establish a genuine and substantial causal relationship between the dumped imports from Argentina and the material injury suffered by the Union industry given the importance of other known factors contributing to that injury.(90) One company, COFCO Argentina …, came forward after the publication of Implementing Regulation (EU) 2017/1578 claiming that they met all three criteria for new exporting producers set out in Article 3 of the [regulation at issue] and provided supporting evidence. The Commission analysed the request and the evidence. However in light of the results of the re-opened investigation the request became moot.…(91) The investigation should be terminated (i) as dumping margins from Indonesia are de minimis and (ii) due to the fact that it cannot be established that there is a genuine and substantial causal relationship between the dumped imports from Argentina and the material injury suffered by the Union industry as required under Article 3(7) 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)]. This means that existing measures which are still in force for those exporting producers from Argentina and Indonesia that had not successfully challenged the anti-dumping measures before the General Court should be repealed. For the sake of clarity and legal certainty, [the regulation at issue] should therefore be repealed.(92) The definitive anti-dumping duties paid pursuant to [the regulation at issue] on imports of biodiesel from Argentina and Indonesia and the provisional duties definitively collected in accordance with Article 2 of that Regulation, should be repaid or remitted in so far as they relate to imports of biodiesel sold for export to the Union by the companies which successfully challenged that Regulation in court, that is, Argentinian exporting producers Unitec Bio SA, Molinos Rio de la Plata SA, Oleaginosa Moreno Hermanos SACIFI y A, Vicentin SAIC, Aceitera General Deheza SA, Bunge Argentina SA, Cargill SACI, Louis Dreyfus Commodities S.A. (LDC Argentina SA), and Indonesian exporting producers PT Pelita Agung Agrindustri, PT Ciliandra Perkasa, PT Wilmar Bioenergi Indonesia, PT Wilmar Nabati Indonesia, PT Perindustrian dan Perdagangan Musim Semi Mas (PT Musim Mas). The repayment or remission has to be requested from national customs authorities in accordance with the applicable customs legislation.(93) Following disclosure, PT Cermerlang Energi Perkasa claimed that the repayment and remission of anti-dumping duties should be available to all companies that had incurred such duties and not only to those companies that had successfully challenged the [regulation at issue] in Court. It also claims that not only [the regulation at issue] but also amending Implementing Regulation (EU) 2017/1578 should be repealed.(94) First, the Commission recalled that Implementing Regulation (EU) 2017/1578 only amended [the regulation at issue]. As the latter regulation is repealed the amending regulation becomes void of any legal effect. Therefore, there is no need to repeal explicitly also that regulation. Second, the General Court’s annulment of [the regulation at issue] only applies to those companies that challenged that regulation before the Court. Accordingly, the anti-dumping duties that have been levied on other companies have been legally collected under Union law. …’
23Article 1 of Regulation 2018/1570 provides that ‘the anti-dumping proceeding concerning imports of fatty-acid mono-alkyl esters and/or paraffinic gasoils obtained from synthesis and/or hydro-treatment, of non-fossil origin, in pure form or as included in a blend originating in Argentina and Indonesia, currently falling within … codes … (“biodiesel”) is hereby terminated’.
24Article 3 of that regulation provides that ‘[the regulation at issue] is repealed’.
The dispute in the main proceedings and the question referred for a preliminary ruling
25The applicant in the main proceedings, Vitol, is a company incorporated under Swiss law and independent importer of biodiesel. It is referred to neither in the regulation at issue nor in Implementing Regulation 2017/1578. However, the company COFCO Argentina, the Argentine supplier of biodiesel to the applicant in the main proceedings, is referred to in recital 130 of the latter regulation and included in the list of companies with individual duty rates as ‘other cooperating companies’.
26On 6 March 2018, BVBA Vandevyver, a company incorporated under Belgian law, filed, on behalf of the applicant in the main proceedings, two declarations for the importation of biodiesel from Argentina, only one of which is at issue in the dispute in the main proceedings. In the context of the declaration in question, that applicant paid, on the basis of the regulation at issue, as amended by Implementing Regulation 2017/1578, anti-dumping duties in the amount of EUR 1272 023.58.
27On 3 April 2018, the applicant in the main proceedings submitted to the competent national authorities an application for reimbursement of the anti-dumping duties that it had paid. By decision of 22 June 2018, that application was rejected. On 20 September 2018, it lodged a complaint against that decision, which was rejected by decision of 21 May 2019. The action brought by the applicant in the main proceedings before the adviseur-generaal (General Adviser, Belgium) against the latter decision was likewise dismissed on 25 August 2020.
28On 13 November 2020, the applicant in the main proceedings lodged an appeal with the referring court. In that context, it asked that court to refer a question to the Court for a preliminary ruling concerning the compatibility of the regulation at issue, as amended by Implementing Regulation 2017/1578, with the basic regulation as applied at the time.
29The referring court observes, in the first place, that it is only if it is established that a direct action brought by a person pursuant to the fourth paragraph of Article 263 TFEU would have been undoubtedly admissible that that person is prevented from pleading invalidity of the act in question before the national court having jurisdiction. Although the Court does, in principle, make that determination in the context of the preliminary ruling given, there is nothing to stop the referring court from undertaking a marginal review vis-à-vis whether it is necessary to submit a question for a preliminary ruling. On the basis of the evidence available to it, the referring court considers that it cannot be held that the applicant in the main proceedings was undoubtedly entitled to bring an action for annulment against the regulation at issue pursuant to the fourth paragraph of Article 263 TFEU.
30The referring court takes the view, in the second place, that the question whether the validity of the regulation at issue, as amended by Implementing Regulation 2017/1578, can still be challenged and the question whether an issue of validity can potentially be raised are relevant for the purpose of giving judgment in the case in the main proceedings. It finds that, in the present case, the applicant in the main proceedings has plausibly argued that the anti-dumping duties provided for in the regulation at issue are potentially contrary to the basic regulation. It refers in that regard to the judgments of 15 September 2016 and notes that neither Implementing Regulation 2017/1578, which reduced the anti-dumping duties, nor Implementing Regulation 2018/1570, which repealed the regulation at issue for the future, calls into question the potential incompatibility of the latter regulation with the basic regulation.
31In those circumstances, the Nederlandstalige rechtbank van eerste aanleg Brussel (Brussels Court of First Instance (Dutch-speaking), Belgium) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:‘Is [the regulation at issue], as amended by [Implementing] Regulation 2017/1578, contrary to the basic regulation …, inter alia because:– it has not been demonstrated that the conditions were met for disregarding, in the context of calculating the normal value of the like product, the costs associated with the production and sale of that product, as reflected in the records of the Argentinian exporting producers examined, in accordance with the rule laid down in Article 2(5) of the basic regulation;– the effects of the imports were erroneously assessed cumulatively in accordance with Article 3(4) of the basic regulation and it was thus not adequately demonstrated that dumped imports had caused injury within the meaning of the basic regulation, as referred to in Article 3(6) and (7) of that regulation;– and there was thus no question of dumping and no anti-dumping duty could be imposed as referred to in Article 1 of the basic regulation?’
Admissibility of the request for a preliminary ruling
32The admissibility of this request for a preliminary ruling, which concerns the assessment of the validity of the regulation at issue, is called into question in two respects. First, in the light of the observations of the Belgian and Greek Governments and of the Council, the question arises whether the applicant in the main proceedings is able to challenge that regulation, even though it has not brought an action for annulment against it. Second, in view of the observations specifically put forward by the Commission, it is necessary to determine whether the referring court sets out sufficiently the reasons why the validity of the regulation at issue proves problematic in the present case.
Standing to bring an action for annulment of the regulation at issue, pursuant to the fourth paragraph of Article 263 TFEU
33In their written observations submitted to the Court, the Belgian and Greek Governments and the Council express doubts as to the admissibility of this request for a preliminary ruling in the light of the case-law established inter alia in the judgments of 9 March 1994, TWD Textilwerke Deggendorf (C‑188/92, EU:C:1994:90), and of 15 February 2001, Nachi Europe (C‑239/99, EU:C:2001:101), on the ground that the applicant in the main proceedings could, undoubtedly, have brought an action for annulment before the EU judicature against the regulation at issue pursuant to the fourth paragraph of Article 263 TFEU.
34In that regard, it follows from the case-law that the possibility for a person to rely, in an action brought before a national court, on the invalidity of provisions contained in an EU measure, which constitutes the basis of a national decision taken concerning him, presupposes either that he has also brought, pursuant to the fourth paragraph of Article 263 TFEU, an action for annulment of that EU measure within the prescribed time limits, or that he has not done so, as a result of not having an undoubted right to bring such an action (judgments of 25 July 2018, Georgsmarienhütte and Others, C‑135/16, EU:C:2018:582, paragraph 17 and the case-law cited, and of 21 December 2021, Vítkovice Steel, C‑524/20, EU:C:2021:1048, paragraph 59).
35Accordingly, it is only if it can be held that a person would undoubtedly have been entitled to bring, before the EU judicature, a direct action seeking the annulment of an EU measure under the fourth paragraph of Article 263 TFEU, that that person is prevented from pleading the invalidity of that measure before the national courts and, therefore, from potentially getting those courts to refer questions to the Court for a preliminary ruling on the basis of Article 267 TFEU. Thus, where doubts may be entertained as to whether the contested provision or provisions are of direct and individual concern to the party in question, the plea of inadmissibility established in the case-law cited in the preceding paragraph of this judgment cannot be invoked.
36In the present case, as regards, first, the question whether the applicant in the main proceedings could clearly have brought an action before the EU judicature, under the final limb of the fourth paragraph of Article 263 TFEU, against the regulation at issue in so far as it constituted a regulatory act which directly concerned it and which did not entail implementing measures within the meaning of that provision, it is sufficient to note that it is by virtue of the decision of 22 June 2018 that the payment of the anti-dumping duties was imposed on it. The mechanical nature of the measures adopted at the national level is irrelevant to determining whether a measure entails implementing measures (see, to that effect, judgment of 18 October 2018, Internacional de Productos Metálicos v Commission, C‑145/17 P, EU:C:2018:839, paragraph 54 and the case-law cited). It follows that it cannot be held that that regulation manifestly does not entail implementing measures for the purposes of that provision (see, to that effect, judgment of 10 March 2021, Von Aschenbach & Voss, C‑708/19, EU:C:2021:190, paragraph 34 and the case-law cited).
37In those circumstances, it is only if it can be held that the applicant in the main proceedings is undoubtedly directly and individually concerned by the regulation at issue, within the meaning of the fourth paragraph of Article 263 TFEU, that it would be prevented from pleading before the national courts that that regulation is invalid.
38In that regard, it should be observed that regulations which impose an anti-dumping duty are of a legislative character inasmuch as they apply generally to the traders concerned (judgment of 10 March 2021, Von Aschenbach & Voss, C‑708/19, EU:C:2021:190, paragraph 36 and the case-law cited).
39However, it is apparent from the case-law of the Court that a trader may be directly and individually concerned by a regulation imposing an anti-dumping duty (judgment of 10 March 2021, Von Aschenbach & Voss, C‑708/19, EU:C:2021:190, paragraph 37 and the case-law cited).
40As regards, in the first place, the question whether the applicant in the main proceedings was directly concerned by the regulation at issue, it is not disputed that that regulation directly affected its legal situation, in that it constituted the legal basis of the anti-dumping duty imposed on it.
41As regards, in the second place, the question whether the applicant in the main proceedings was individually concerned by the regulation at issue, it should be pointed out that the Court has identified certain categories of traders that may be individually concerned by a regulation imposing an anti-dumping duty, without prejudice to the possibility that other traders may be individually concerned by reason of certain attributes which are peculiar to them and which differentiate them from all other persons (judgment of 10 March 2021, Von Aschenbach & Voss, C‑708/19, EU:C:2021:190, paragraph 40 and the case-law cited).
42The following may thus be individually concerned by a regulation imposing an anti-dumping duty: first, those of the producers and exporters of the product in question which have been charged with practising dumping on the basis of information relating to their business activities; second, importers of that product whose resale prices were taken into account for the construction of export prices and which are consequently concerned by the findings relating to the existence of dumping; and, third, importers associated with exporters of the product in question, particularly where the export price has been calculated on the basis of those importers’ resale prices on the EU market and where the anti-dumping duty itself has been calculated on the basis of those resale prices (judgment of 10 March 2021, Von Aschenbach & Voss, C‑708/19, EU:C:2021:190, paragraph 41 and the case-law cited).
43Therefore, it should be noted that the status of importer cannot, on its own, be sufficient to support the view that an importer is individually concerned by a regulation imposing an anti-dumping duty. Even if associated with exporters of the product in question, an importer is individually concerned only if it is able to prove that the information relating to its business activities has been taken into account for the purpose of establishing dumping or, failing that, that it has other attributes which are peculiar to it and which differentiate it from all other persons (judgment of 10 March 2021, Von Aschenbach & Voss, C‑708/19, EU:C:2021:190, paragraph 42 and the case-law cited).
44Accordingly, whilst it cannot be ruled out that an importer of the product in question may be regarded as individually concerned by a regulation imposing an anti-dumping duty, that importer must still demonstrate the existence of certain attributes which are peculiar to it and which differentiate it from all other persons.
45However, the referring court states that, on the basis of the evidence at its disposal, it cannot be held that the applicant in the main proceedings was undoubtedly entitled to bring an action under Article 263 TFEU.
46In the present case, it in fact appears, first of all, that it has not been demonstrated that information relating to the business activities of the applicant in the main proceedings was taken into account for the purpose of establishing dumping. In particular, it has not been proven that resale prices that may have been applied by the applicant in the main proceedings were used to construct the export prices and that, consequently, it is concerned by the findings relating to the existence of dumping.
47Next, it must be noted that the applicant in the main proceedings did not take part in the administrative procedure which led to the adoption of the anti-dumping duty either, unlike in particular in the case which gave rise to the judgment of 10 March 2021, Von Aschenbach & Voss (C‑708/19, EU:C:2021:190).
48Lastly, whilst it is true that the Argentine supplier of biodiesel to the applicant in the main proceedings, COFCO Argentina, is mentioned by name in Implementing Regulation 2017/1578 (recital 130) and in Implementing Regulation 2018/1570 (recital 90), that fact is not, however, capable of identifying the applicant in the main proceedings individually such that, as is required by case-law, it could undoubtedly be regarded as having standing to institute proceedings for the purposes of the fourth paragraph of Article 263 TFEU.
49In that regard, it is irrelevant that the applicant in the main proceedings could have, as the case may be, joined in the action for annulment brought by its associated producer. The ability to do so does not establish that the applicant in the main proceedings is undoubtedly individually concerned by the regulation at issue.
50In the light of all those considerations, it must be concluded that it cannot be held, on the basis of the information available to the Court, that Vitol would undoubtedly have had standing to bring an action for annulment against the regulation at issue before the EU judicature on the basis of the fourth paragraph of Article 263 TFEU.
Whether the information set out in the order for reference is sufficient to call into question the regulation at issue
51The Commission casts doubt on the admissibility of the request for a preliminary ruling, arguing that the referring court has failed to set out the reasons which led it to question the validity of the regulation at issue.
52It should be borne in mind that it follows from the spirit of cooperation which must prevail in the operation of the preliminary reference procedure that it is essential that the national court sets out in its order for reference the precise reasons why it considers a reply to its questions concerning the interpretation or validity of certain provisions of EU law to be necessary to enable it to give judgment (judgment of 4 May 2016, Philip Morris Brands and Others, C‑547/14, EU:C:2016:325, paragraph 47 and the case-law cited).
53It is therefore important that the national court should set out, in particular, the precise reasons which led it to question the validity of certain provisions of EU law and set out the grounds of invalidity which, consequently, appear to it to be capable of being upheld (judgment of 4 May 2016, Philip Morris Brands and Others, C‑547/14, EU:C:2016:325, paragraph 48 and the case-law cited). This is also a requirement under Article 94(c) of the Rules of Procedure of the Court.
54It must be emphasised in that regard that the information provided in orders for reference serves not only to enable the Court to give useful answers but also to ensure that governments of the Member States and other interested parties have the opportunity to submit observations in accordance with Article 23 of the Statute of the Court of Justice of the European Union. It is for the Court to ensure that that opportunity is safeguarded, given that, under that provision, only the orders for reference are notified to the interested parties (judgment of 5 May 2022, Universiteit Antwerpen and Others, C‑265/20, EU:C:2022:361, paragraph 26 and the case-law cited).
55It follows from the foregoing, first, that in a reference for a preliminary ruling, the Court will examine the validity of an EU act or certain provisions thereof in the light of the grounds of invalidity set out in the order for reference. Second, if there is no mention of the precise reasons which led the referring court to question the validity of that act or of those provisions, the questions relating to the invalidity thereof will be inadmissible (see, inter alia, judgment of 4 May 2016, Philip Morris Brands and Others, C‑547/14, EU:C:2016:325, paragraph 50).
56In the present case, the request for a preliminary ruling contains sufficient indications as to the reasons which led the referring court to put questions to the Court about the validity of the regulation at issue. The referring court makes reference in particular to the findings of the General Court in the judgments of 15 September 2016, in accordance with which, when constructing the normal value of the biodiesel produced in Argentina and Indonesia pursuant to the regulation at issue, the Council and the Commission should not have taken the view that the accounting records of the Argentine and Indonesian exporting producers did not reasonably reflect the prices of the raw materials and, therefore, those institutions should not have disregarded those records for the purposes of constructing that value. The referring court also points to the fact that Implementing Regulation 2017/1578 did not correct the legally erroneous findings which vitiated, ab initio, the regulation at issue vis-à-vis the calculation of the dumping margin.
57In those circumstances, the Court has at its disposal the points of fact and of law necessary to give a useful answer to the question submitted to it. In addition, those indications enabled the Commission to comment effectively on the substance of the question put to the Court.
58The fact that the question stems, in the words of the Commission, from a potential misunderstanding as to the scope of the judgments of 15 September 2016 relates to the substantive question concerning the assessment of the validity of the regulation at issue.
59In the light of all the foregoing considerations, the request for a preliminary ruling must be declared admissible.
The question referred for a preliminary ruling
60By its question, the referring court seeks, in essence, to ascertain whether the regulation at issue, as amended by Implementing Regulation 2017/1578, is invalid because it infringes the basic regulation.
61More specifically, it asks whether the regulation at issue, as amended by Implementing Regulation 2017/1578, first, is contrary to Article 2(5) of the basic regulation, in so far as, in the context of calculating the normal value of the like product, it has not been demonstrated that the conditions were met for disregarding the costs associated with the production and sale of that product, as reflected in the records of the Argentine exporting producers examined. Second, that court asks whether the regulation at issue, as amended by Implementing Regulation 2017/1578, is contrary to the basic regulation, in so far as the effects of the imports were assessed cumulatively, in breach of Article 3(4) of the basic regulation, and it was thus not adequately demonstrated that dumped imports had caused injury to the Union industry, within the meaning of Article 3(6) and (7) of that regulation.
62As a preliminary point, it should be borne in mind that, according to the case-law of the Court, in the sphere of the common commercial policy and, most particularly, in the realm of measures to protect trade, the EU institutions enjoy broad discretion by reason of the complexity of the economic and political situations which they have to examine (judgment of 4 February 2021, eurocylinder systems, C‑324/19, EU:C:2021:94, paragraph 37 and the case-law cited).
63Judicial review of the exercise of such discretion must, in the context of both an action founded on Article 263 TFEU and a request for a preliminary ruling on validity submitted pursuant to Article 267 TFEU, be limited to verifying whether the procedural rules have been complied with, whether the facts on which the contested choice is based have been accurately stated, and whether there has been a manifest error in the appraisal of those facts or a misuse of powers (judgment of 4 February 2021, eurocylinder systems, C‑324/19, EU:C:2021:94, paragraph 38 and the case-law cited).
64A review limited to examining whether the evidence upon which the EU institutions base their findings is able to support the conclusions reached by the institutions on that basis does not encroach on their broad discretion in the field of commercial policy (see, to that effect, judgment of 16 February 2012, Council and Commission v Interpipe Niko Tube and Interpipe NTRP, C‑191/09 P and C‑200/09 P, EU:C:2012:78, paragraph 68).
65In the present case, the reasons which led the referring court to question the validity of the regulation at issue, as amended by Implementing Regulation 2017/1578, are essentially based on the assessments of the General Court in the judgments of 15 September 2016 and on the findings made following the re-opening, in May 2018, of the anti-dumping investigation into the goods in question.
66With regard, first, to the question whether the regulation at issue, as amended by Implementing Regulation 2017/1578, is contrary to Article 2(5) of the basic regulation, it must be recalled that the latter provision allows the costs appearing in the accounting records of the exporting producers submitted to the investigation to be disregarded with a view to constructing the ‘normal value’ of the like product, it being understood that that value is used to determine whether dumping exists, for the purposes of Article 1(2) of the basic regulation.
67However, as the referring court has observed, it was not demonstrated in the regulation at issue, as amended by Implementing Regulation 2017/1578, that the conditions laid down in Article 2(5) of the basic regulation were met for the construction of the normal value of the like product.
68This conclusion follows inter alia from the judgments of 15 September 2016, which result from several actions for annulment brought by a number of Argentine and Indonesian exporting producers. On completion of its examination, the General Court had, in essence, held that the institutions had failed to establish to the requisite legal standard that there was an appreciable distortion of the prices of the main raw materials used in the production of biodiesel in Argentina and Indonesia as a result of the differential export tax system, under which the raw materials and the biodiesel were taxed at different rates.
69The General Court thus considered that the institutions should not have taken the view that the prices of the raw materials were not reasonably reflected in the accounting records of the Argentine and Indonesian exporting producers and should not have disregarded those records when constructing the normal value of the biodiesel produced in Argentina and Indonesia. Accordingly, it annulled Articles 1 and 2 of the regulation at issue in so far as it concerned the companies which challenged that regulation before it by bringing an action for annulment pursuant to Article 263 TFEU.
70Further to the Council’s decision to withdraw its appeals in Cases C‑602/16 P to C‑609/16 P, directed against the judgments of 15 September 2016, those cases were removed from the register of the Court of Justice by orders of the President of the Court of 15 and 16 February 2018. The judgments of 15 September 2016 therefore became final and have the force of res judicata from the date of their delivery, it being understood that the authority of res judicata exerted by an annulling judgment of a court of the EU judicature attaches to both the operative part and the reasoning that constitutes the ratio decidendi of the judgment (judgment of 14 November 2017, British Airways v Commission, C‑122/16 P, EU:C:2017:861, paragraph 82 and the case-law cited).
71Although the judgments of 15 September 2016 annul the regulation at issue only in so far as it concerns the applicants in the cases concerned, in accordance with the principle that the authority of a ground of a judgment annulling a measure cannot apply to the situation of persons who were not parties to the proceedings and with regard to whom the judgment cannot therefore have decided anything whatever (judgment of 14 September 1999, Commission v AssiDomän Kraft Products and Others, C‑310/97 P, EU:C:1999:407, paragraph 55), all the appropriate conclusions must be drawn from the findings made by both the General Court and the Commission itself further, in particular, to the re-opening, in May 2018, of the anti-dumping investigation regarding the imports of biodiesel originating in Argentina and Indonesia.
72It was clear that the approach taken by the Council of disregarding, in the context of constructing the normal value of the like product, the costs of the main raw materials shown in the records of the Argentine exporting producers examined, on account of the distortion of the prices of those raw materials caused by the differential export tax system, and of replacing them with the reference price, was not consistent with the first and second subparagraphs of Article 2(5) of the basic regulation.
73That conclusion cannot be called into question by the fact that recital 94 of Implementing Regulation 2018/1570 states that ‘the General Court’s annulment of [the regulation at issue] only applies to those companies that challenged that regulation before the Court [and that] the anti-dumping duties that have been levied on other companies have been legally collected under Union law’. A finding to that effect is without prejudice to the possibility of a national court, if seised of a challenge concerning the individual measures adopted by the national authorities pursuant to the regulation at issue, calling into question the validity of that regulation in the context of a request for a preliminary ruling, provided that it is not established that the person in question was undoubtedly entitled to bring an action seeking the annulment of the regulation.
74Second, as regards the question whether the regulation at issue, as amended by Implementing Regulation 2017/1578, is contrary to the basic regulation because the effects of the imports were erroneously assessed cumulatively pursuant to Article 3(4) of the basic regulation, such that it was not demonstrated to the requisite legal standard, in accordance with Article 3(6) and (7) of the basic regulation, that dumped imports had caused injury within the meaning of that regulation, reference must be made to the re-opening of the anti-dumping investigation into the goods in question, which resulted in the adoption of Implementing Regulation 2018/1570 and the repeal of the regulation at issue, both of which occurred after the facts at issue in the case in the main proceedings.
75By Implementing Regulation 2018/1570, the Commission concluded, further to the re-opening of the investigation following, in particular, the judgments of 15 September 2016, that not only were the dumping margins from Indonesia de minimis, but also that it could not be held that there was a genuine and substantial causal relationship between the dumped Argentinian imports and the material injury suffered by the Union industry as required by the basic regulation (recitals 81 to 89). When considering the effect of the imports from Argentina separately from those from Indonesia, it cannot be established that such a causal relationship existed.
76In those circumstances, it appears that the regulation at issue, as amended by Implementing Regulation 2017/1578, is invalid because it is contrary to the basic regulation on the ground that it has not been demonstrated, to the requisite legal standard, that dumped imports had caused injury to the Union industry within the meaning of Article 3(6) and (7) of the basic regulation.
77Accordingly, all the appropriate conclusions must be drawn from the finding, set out in particular in recital 91 of Implementing Regulation 2018/1570, that it had not been established, when the regulation at issue was adopted, that there was a genuine and substantial causal relationship between the dumped Argentinian imports and the material injury suffered by the Union industry as required under Article 3(6) and (7) of the basic regulation. It necessarily follows from that fact that it had not been duly proven that there was injury caused by dumping and that, therefore, an anti-dumping duty within the meaning of Article 1 of the basic regulation could be imposed.
78In the light of all those considerations, it must be held that the regulation at issue, as amended by Implementing Regulation 2017/1578, is invalid inasmuch as it infringes the requirements under Article 2(5) and Article 3(4), (6) and (7) of the basic regulation.
Costs
79Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
Operative part
On those grounds, the Court (Seventh Chamber) hereby rules: Council Implementing Regulation (EU) No 1194/2013 of 19 November 2013 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of biodiesel originating in Argentina and Indonesia, as amended by Commission Implementing Regulation (EU) 2017/1578 of 18 September 2017, is invalid inasmuch as it infringes the requirements under Article 2(5) and Article 3(4), (6) and (7) of Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European [Union].
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