Case C‑338/10

OPINION OF ADVOCATE GENERAL

BOT

delivered on 6 October 2011(1)

Case C‑338/10

Grünwald Logistik Service GmbH (GLS)

v

Hauptzollamt Hamburg-Stadt

(Reference for a preliminary ruling from the Finanzgericht Hamburg (Germany))

(Regulation imposing an anti-dumping duty on imports of certain prepared or preserved citrus fruits originating in China— Validity— Determination of normal value— Non-market economy exporting country— Commission’s obligation to take care to determine normal value on the basis of the price of a like product in a market-economy third country)

1.The Finanzgericht Hamburg (Germany) has asked to Court to give a ruling on the validity of two Regulations(2) pursuant to which provisional, and then definitive, anti-dumping duties were imposed on a German company which imports preserved mandarins and other citrus fruits from China into the Community.

2.The referring court is uncertain as to the legality of those Regulations because the Community institutions determined the normal value of the product in question on the basis of the prices paid for a like product in the Community without complying with the requirements of Council Regulation (EC) No384/96.(3)

3.According to the basic Regulation, the normal value of a product imported from a non-market economy country may be determined on the basis of the prices paid in the Community only if it is not possible to refer to the value of a like product on the market of another market‑economy third country or from such a third country to other countries.

4.The referring court therefore asks the Court to ascertain whether the Community institutions took all the requisite care before acting on the basis of prices in the Community and applying that alternative method of calculation.

5.The referring court has doubts on that point because the institutions used that method simply after finding that the two Thai companies questioned in the course of the investigation had not replied to the questionnaires which were sent to them. The institutions did not make other enquiries in Thailand or try to find an analogue third country, although a party had pointed out during the investigation that a like product was produced in Japan.

6.Consequently the present preliminary ruling procedure should enable the Court to clarify the European Commission’s obligations when it has to determine the normal value of a product imported from a country which, like the People’s Republic of China, does not have a market economy.

7.In this opinion I shall begin by showing that the present reference for a preliminary ruling to assess validity is admissible only against Regulation No1355/2008 imposing a definitive anti-dumping duty.

8.I shall then point out that, in the anti-dumping investigation procedure laid down by Regulation No1355/2008, although the Commission must comply with time limits and the parties are asked to submit their comments, particularly on the basis for calculating the normal value which the Commission proposes to use, the Commission must nevertheless, in accordance with the basic Regulation, take care to seek a third country with a market economy which can be taken into consideration for calculating the normal value in question.

9.I shall show that, if the Eurostat data available at the date of initiating the investigation show the existence of imports into the Community of products with the same tariff classification as the product referred to in the complaint and originating from one or more market-economy third countries and also show that the volume of such imports is not manifestly insignificant, the Commission must on its own initiative ascertain whether the normal vale of the product in question can be determined on the basis of the prices paid in one or the other of those countries, or from one of them. I shall suggest that the Commission cannot validly calculate the normal value on the basis of the prices paid for a like product in the Community without having made every effort to use the prices in or from an appropriate third country and without stating the reasons why it was impossible to do so.

10.I shall conclude that Regulation No1355/2008 is unlawful in so far as it does not show that the institutions made a serious and sufficient effort to determine the normal value of preserved mandarins and other citrus fruits on the basis of the prices in or from one of the market-economy third countries cited in the Eurostat statistics as being countries from which products with the same tariff classification as the product concerned were imported into the Community in 2006 or 2007 in quantities which were not manifestly insignificant.

I–The legal context

A–The basic Regulation

11.Regulations Nos642/2008 and 1355/2008 were adopted pursuant to the basic Regulation. The provisions of the basic Regulation that appear to be relevant in the present case concern, first, determination of the normal value, and second, the conduct of the procedure.

12.It is apparent from recitals 2, 3 and 5 of the basic Regulation that it aims to give effect, so far as possible, to the obligations arising from ArticleVI of the General Agreement on Tariffs and Trade (GATT) and from the Agreement on Implementation of that Article.

1.Determining the normal value

13.The basic Regulation authorises the Council of the European Union and the Commission to impose a duty on imports into the Community of a dumped product where such dumping causes injury to a Community industry. A product is dumped where it is put on sale in the Community at a price lower than its normal value.

14.The basic Regulation lays down the method for calculating the normal value depending on whether the third country from which the product is imported is a market-economy country or not.

15.If that is the case, the normal value is, in principle, based on the prices paid or payable for that product or a like product in that country, in the course of normal commercial transactions, by independent buyers. The basic Regulation then provides for other methods of calculation if the first method is not applicable, which is the case where, for example, neither the product concerned nor any like product is marketed in that country, or is marketed in a quantity insufficient for a valid comparison, or also where trading is between associated parties.

16.Where the exporting country is a non-market economy country, the relevant calculation methods are laid down in Article2(7)(a) of the basic Regulation, which is worded as follows:

‘In the case of imports from non-market economy countries …, normal value shall be determined on the basis of the price or constructed value in a market economy third country, or the price from such a third country to other countries, including the Community, or where those are not possible, on any other reasonable basis, including the price actually paid or payable in the Community for the like product, duly adjusted if necessary to include a reasonable profit margin.

An appropriate market economy third country shall be selected in a not unreasonable manner, due account being taken of any reliable information made available at the time of selection. Account shall also be taken of time‑limits; where appropriate, a market economy third country which is subject to the same investigation shall be used.

The parties to the investigation shall be informed shortly after its initiation of the market economy third country envisaged and shall be given 10 days to comment.’

17.In addition, under Article18(5) of the basic Regulation, if, in default of cooperation by an interested party, determinations, including those regarding normal value, are based on the available information, including the information supplied in the complaint, it will, where practicable and with due regard to the time limits of the investigation, be checked by reference to information from other independent sources which may be available, such as published price lists, official import statistics and customs returns.

18.Finally, under Article1(4) of the basic Regulation, ‘like product’ is defined as ‘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.’

2.The procedural rules

19.Under Article5(1) to (4) of the basic Regulation, an investigation is initiated on the basis of a complaint which, in order to be admissible, must contain various information and must be lodged by Community producers accounting for a significant proportion of Community production.

20.Under Article5(9) of the basic Regulation, the Commission has 45 days from the lodging of the complaint in which to decide whether to initiate an investigation or not. If it decides to do so, it must publish a notice in the Official Journal of the European Union stating the product and the countries concerned and state the period within which interested parties may make themselves known, submit information and apply to be heard.

21.Under Article6(1) and (2) of the basic Regulation, the investigation is to cover both dumping and injury and these are to be investigated simultaneously. The Commission must select an investigation period of not less than six months immediately prior to the initiation of the proceeding. Parties receiving questionnaires have at least 30 days to reply, but an extension may be granted.

22.Under Article6(3) and (4) of the basic Regulation, the Commission may request the Member States to supply information and to carry out all necessary checks and inspections.

23.Under Article6(5) of the basic Regulation, the parties which have made themselves known within the prescribed period following publication of the notice initiating the investigation will be heard if they have shown that they are really interested and that there are particular reasons why they should be heard.

24.Article6(6) of the basic Regulation provides also that a meeting may be organised between importers, exporters, representatives of the government of the exporting country, the complainants and parties with adverse interests and the absence of any party is not to prejudice that party’s case. Under the last sentence of Article6(6), oral information provided under that paragraph is to be taken into account in so far as it is subsequently confirmed in writing.

25.Article6(8) of the basic Regulation provides that the information which is supplied by interested parties and upon which findings are based is to be examined for accuracy as far as possible.

26.Under Article6(9) of the basic Regulation, an investigation is to be concluded, whenever possible, within one year and, in any event, within 15 months of initiation.

27.Article7 of the basic Regulation provides that provisional duties may be imposed for a period of not more than nine months, in the conditions which it lays down, not earlier than 60 days from the initiation of the proceedings and not later than 9 months thereafter.

28.Under Article9(4) of the basic Regulation, where the facts as finally established show that there is dumping and injury caused thereby, and if justified by the Community interest, a definitive anti-dumping duty is to be imposed by the Council, acting on a proposal submitted by the Commission after consulting an advisory committee. The amount of the anti-dumping duty is not to exceed the margin of dumping established but it should be less than the margin if such lesser duty would be adequate to remove the injury to the Community industry.

B–Regulations No642/2008 and No355/2008

29.Following a complaint lodged on 6September 2007 by the Spanish National Federation of Associations of the Processed Fruit and Vegetables Industry, the Commission, according to the notice published in the Official Journal of the European Union on 20October 2007,(4) decided to initiate an anti‑dumping proceeding concerning imports of prepared or preserved citrus fruits (namely mandarins, etc.) originating in China.

30.At paragraph 5.1(d) of the notice, the Commission stated that, in the absence of production of the product concerned outside the Community and China, it intended to base the normal value, in accordance with Article2(7)(a) of the basic Regulation, on any other reasonable basis, i.e. the prices actually paid or payable in the Community for the like product. The Commission requested the parties concerned to submit their comments on the appropriateness of that choice within ten days of the publication of the notice in the Official Journal of the European Union.

31.The investigation lasted from 1October 2006 to 30September 2007.

32.On 4 July 2008 the Commission adopted Regulation (EC) No642/2008. recitals 40 to 42 of the preamble to the directive read as follows:

‘(40)According to information contained in the complaint, the product concerned is not being produced in significant quantities outside the Community and the country concerned. It was therefore suggested in the notice of initiation to base the normal value on any other reasonable basis, i.e. the prices actually paid or payable in the Community for the like product. Interested parties were invited to submit their comments in this respect. The Commission itself continued to seek any potential analogue countries after the publication of the notice of initiation. The Commission sought cooperation from two companies in Thailand. One of them initially agreed to cooperate in the investigation but failed to reply to the questionnaire later on. The other company did not react at all.

(41)Two exporting producers from the country concerned and an association of importers and wholesalers disagreed with basing the normal value on the prices paid or payable in the Community but did not offer any other solution which would comply with the basic Regulation

(42)In view of the above, it was provisionally decided to determine normal value for all exporting producers in the sample on any other reasonable basis, in this case on the basis of the prices actually paid or payable in the Community for the like product, in accordance with Article2(7)(a) of the basic Regulation.’

33.On 18December 2008, the Council adopted Regulation No1355/2008. recital 17 of the Regulation is worded as follows:

‘Following the imposition of provisional measures, all three Chinese sampled cooperating exporting producers and two unrelated EC importers questioned the use of Community Industry prices for the calculation of normal value. It was submitted that normal value should have been calculated on the basis of the [Chinese] production costs, account taken of any appropriate adjustments relating to the differences between the EC and the [Chinese] markets. In this respect it is noted that the use of information from a non-market economy country and in particular from companies which have not been granted MET would be contrary to the provisions of Article2(7)(a) of the basic Regulation. Therefore, this argument is rejected. It was also argued that data on prices from all other importing countries or relevant published information could have been used as a reasonable solution, account taken of the lack of analogue country cooperation. However, such general information, in contrast to the data used by the Commission, could not have been verified and cross checked with regard to their accuracy in line with the provisions of Article6(8) of the basic Regulation. This argument is therefore rejected. No other argument was submitted that could cast doubt on the fact that the methodology used by the Commission is in line with the provisions of Article2(7)(a) of the basic Regulation and, in particular, the fact that it constitutes in this particular case the only remaining reasonable basis for calculation of normal value.’

34.Article1(1) of Regulation No1355/2008 states that a definitive anti-dumping duty is to be imposed on imports of prepared or preserved mandarins (including tangerines and satsumas), clementines, wilkings and other similar citrus hybrids, not containing added spirit, whether or not containing added sugar or other sweetening matter, and as defined under the Combined Nomenclature (CN) heading 2008, originating in China, falling within CN codes 20083055, 20083075 and ex 20083090.

35.Article1(2) of the Regulation lays down in euros per tonne of product the amount payable by each of the specified companies, the duty payable by all other companies being EUR531.20 per tonne of product.

36.Article3(1) of the Regulation states that amounts secured by way of the provisional anti-dumping duty pursuant to Regulation No642/2008 are to be definitively collected at the rate of the provisional duty.

II–The factual context, the question referred and the procedure before the Court

37.Grünwald Logistik Service GmbH (GLS)(5) imported a quantity of preserved mandarins and other citrus fruits from China into the Community, under heading 20083055 of the NC code, for which it had to pay provisional duty in the form of a security for EUR5311.92. This was later collected as definitive duty.

38.The objection by GLS to the duties charged was dismissed and it brought an action before the Finanzgericht Hamburg.

39.In support of its application, GLS argued that Regulation No1355/2008 was unlawful on the grounds that the Commission did not make sufficient efforts to obtain from Thailand the data necessary to determine the normal value and made no endeavour to find an (other) analogue country in accordance with Article2(7)(a) of the basic Regulation, although a party had informed the Commission that a like product was made in Japan.

40.The referring court states that the outcome of the action before it depends on whether Regulations No642/2008 and No1355/2008 are valid. It adds that, in view of the foregoing considerations, it has serious doubts as to whether the efforts of the Commission to find an appropriate analogue country satisfy the requirements of the basic Regulation.

41.The Finanzgericht Hamburg decided to stay judgment and to refer the following question to the Court:

‘Is an anti-dumping regulation adopted by the European Commission … under the [basic Regulation] invalid because the Commission adopted that anti-dumping regulation by reference to a normal value determined on “[an]other reasonable basis” (in this case, on the basis of the prices actually paid or payable for like products in the Community) without conducting further investigations to ascertain a normal value after two companies in a country which the Commission had initially considered to be an analogue country had been contacted in writing but to no effect (one of them not replying at all and the other indicating its willingness to cooperate but failing to respond to the questionnaire which was then sent to it), and parties to the proceedings had drawn the Commission’s attention to another possible analogue country?’

42.Following notification of that decision by Registrar of the Court in accordance with Article23 of the Statute of the Court of Justice of the European Union, written observations were lodged by GLS, the Council and the Commission.

43.On the basis of the information provided by the referring court and the written observations, the Court, by order of 15 June 2011, asked the Commission to produce the following documents within three weeks of notification of the said order:

–the record of the hearing which took place at the Commission on 19December 2007 and all observations submitted after the hearing which had not already been received by the Court, and

–the Eurostat statistics for 2005 to 2008 which were available on 18December 2008, relating to imports into the Community of products falling within CN codes 20083055, 20083075 and ex20083090, showing the exporting countries.

44.The documents were produced within the prescribed period. The Eurostat statistics available at the end of 2006 and 2007 show that products falling within CN codes 20083055, 20083075 and ex20083090 were imported into the Community from several market‑economy third countries in the following quantities, expressed in tonnes:

III–Assessment

45.The referring court has asked the Court to give a ruling on the validity of Regulation No642/2008 and Regulation No1355/2008. Before considering the substance of the case, the following remarks concerning the admissibility of this reference for a preliminary ruling are necessary.

A–Admissibility of the reference for a preliminary ruling

46.As the Council and the Commission have claimed, the present proceedings are, in my opinion admissible only so far as Regulation No1355/2008 is concerned.

47.It is accepted that, in anti-dumping proceedings, when the provisional duties have been collected by virtue of the regulation imposing a definitive duty, business undertakings no longer have an interest in challenging the legality of the regulation imposing a provisional duty because it has been replaced by the regulation imposing a definitive duty.(6)

48.In the present case, it appears from the information provided by the referring court that the provisional anti-dumping duty of EUR5311.92 charged to GLS was collected in full by the national customs authorities as definitive duty. It follows that the referring court has before it an action brought by GLS for the annulment of the decision of those authorities which has the effect of requiring GLS to pay the definitive duty charged to it by virtue of Regulation No1355/2008.

49.In conformity with the abovementioned case‑law, GLS no longer has an interest in challenging the legality of Regulation No642/2008.

50.On the other hand, it is not disputed, and it does not appear to be open to dispute, that GLS has standing to dispute the legality of Regulation No1355/2008 before the national court by way of an objection.

51.It is not apparent from the case file that GLS should be considered to be directly and individually concerned by that regulation and, therefore, that it would have had the right to seek its annulment before the General Court of the European Union. In particular, it does not appear from the case file, nor is it alleged, that GLS is the associated importer of one of the companies referred to by Regulation No1355/2008 whose resale price for the product in question formed the basis for constructing the export price used by the regulation for establishing the dumping margins concerning that company.(7)

52.In accordance with the case‑law, a regulation imposing an anti‑dumping duty concerns an importer such as GLS, not by reason of certain attributes peculiar to it or factual circumstances which differentiate it from all other persons, but by reason solely of its objective status as an importer of the products in question, in the same way as any other trader who is or may be in the same circumstances.(8)

53.Therefore I propose that the Court should consider the present reference for a preliminary ruling on the issue of validity solely in relation to Regulation No1355/2008.

B–The substance of the case

54.As the Council and the Commission point out in their written observations, the question from the referring court should be reformulated. However, the two institutions differ as to the wording to be used, which reflects the difference in their understanding of the order for reference with regard to the reasons for doubting the legality of Regulation No1355/2008.

55.The Commission considers that the referring court envisages only the two following grounds of annulment: first, the Commission took no further action with regard to the two Thai producers to which it had written and, secondly, it did not consider whether Japan could be an appropriate third country.

56.Like GLS and the Council, I do not agree with that restrictive reading of the order for reference. I think that the referring court clearly states that its doubts are based more on the allegation by GLS that the Community institutions did not make a sufficient effort to find an appropriate third country.

57.I therefore suggest that the Court should understand the question referred as meaning that the referring court is asking, in essence, whether Regulation No1355/2008 is invalid on the ground that the Commission determined the normal value of the product in question on the basis of the prices paid or payable in the Community for the like product, without making a serious and sufficient effort to determine the normal value on the basis of the current prices in an appropriate third country, contrary to Article2(7)(a) of the basic Regulation.

1.The parties’ observations

58.GLS submits that the Court’s reply to the question should be in the affirmative for several reasons, which may be summarised as follows.

59.The Commission failed to comply with Article2(7)(a) of the basic Regulation by determining the normal value on the basis of the price paid in the Community, when that is an alternative method of calculation and there were several third countries, such as Japan, which could have been chosen as analogue countries.

60.In view of the obligation laid down in Article2(7)(a) and in the case‑law,(9) the Commission ought to have tried on its own initiative to find whether there was an appropriate third country by using all the sources of information at its disposal, such as the Eurostat statistics on imports.

61.In the present case the information showed that a like product was made in Israel, the Philippines and Turkey. Consequently the Commission ought to have considered whether one of them was an appropriate country. In addition, at the hearing of 19 December 2007 one of the parties had pointed out that the product was made in Japan.

62.Likewise, before resorting to the prices in the Community, the Commission ought to have tried to find out whether a product closely resembling the product in question, in accordance with the definition of ‘like product’ in Article1(4) of the basic Regulation, was made in market-economy third countries.

63.As the Commission stated in Regulation No642/2008 that products covered by CN20083090, that is to say, preserved citrus fruits not containing added spirit or sugar, may be considered like products and those products were made in Israel, Morocco, Swaziland, Turkey and the United States, it ought to have found out whether undertakings in those countries were prepared to cooperate.

64.Finally, the Commission should not have confined itself to sending a single questionnaire to two Thai companies and concluding, because they did not reply, that it was impossible to determine the normal value on the basis of prices in Thailand.

65.Alternatively, GLS submits that the normal value on the basis of Community prices was incorrectly assessed because the Commission did not make the necessary adjustments for the advantages enjoyed by Chinese exporting producers by comparison with Spanish producers in relation to access to raw materials and the production process. GLS points out that the Commission made such adjustments in other cases.

66.GLS claims that, in the present case, the Commission ought to have taken account of the fact that the cost of raw materials is 45% higher in the Community than in China and that production costs are much higher in Spain because of the use of expensive machines which remain unused for a large part of the year.

67.The Council and the Commission deny that the regulation at issue is invalid, basing their position on the following grounds.

68.The Commission states that, according to the complaint, Spain and China were the only countries which produced preserved mandarins and that was why it stated in the notice of the initiation of the investigation that it, the Commission, intended to determine the normal value on the basis of prices in the Community.

69.The Commission adds that it had information indicating that there were also two producers of preserved mandarins in Thailand.

70.With regard to the steps it took vis-à-vis those two producers, the Commission states that it wrote to them on 29October 2007, that one of them did not reply and the other replied through a European company which, by letter of 5December 2007, asked for a questionnaire to be sent by email and for an extension of the deadline for a reply. The Commission states that it replied immediately that the deadline would be extended to 14December 2007 and that the company wrote on 14December 2007 that it could not complete the form by that deadline.

71.The Commission concludes that it made more than adequate efforts vis-à-vis the Thai producers.

72.On the question whether it should have considered the possibility of selecting Japan as an appropriate third country, the Commission begins by referring to the extent of its obligations under the basic Regulation.

73.It states that the Regulation provides for a procedure involving the participation of the parties, generally initiated after a complaint, and that, under the second paragraph of Article2(7)(a) of the basic Regulation, the Commission must base its decisions on any reliable information available within the prescribed time limits.

74.The Commission adds that the third country which it proposes to select for determining the normal value is made known to the parties and that they have ten days in which to submit any comments.

75.Finally, the Commission observes that, by virtue of the case‑law,(10) it has a broad discretion to determine the normal value. The Commission adds that it has been held that it cannot be objected that it did not carry out a detailed examination of other potential reference countries if the parties did not submit proposals to that effect.

76.The Commission concludes that, in the present case, it had no reason to consider whether Japan could be an appropriate country because it can find no trace of any reference to current production of preserved mandarins in Japan at the hearing of 19 December 2007 and, even supposing that such reference had been made, the Commission would not have been obliged to make enquiries in relation to Japan.

77.According to the Commission, first, Japan had not been indicated as a reference country within the ten-day limit following publication of the notice initiating the investigation and, secondly, under Article6(6) of the basic Regulation, oral information provided at a hearing is to be taken into account only if it is subsequently confirmed in writing.

78.The Council bases its position on the same arguments as the Commission and adds that neither it nor the Commission had any reason to look for other appropriate third countries on their own initiative because the Commission was entitled to assume that the interested parties were familiar with the market and would inform it of other possible analogue countries.

2.Assessment

79.Like GLS, I am of the opinion that Regulation No1355/2008 was adopted contrary to the provisions of Article2(7)(a) of the basic Regulation in so far as the Community institutions or, to be precise, the Commission, did not make a serious and sufficient effort to determine the normal value of the product in question on the basis of the current prices in a market-economy third country.

80.Before I set out the reasons why I consider that the Commission failed in its obligations in the present case, I think it would be helpful to bear in mind the purpose of normal value in the anti‑dumping procedure and the method of calculating it.

a)The purpose of normal value in the anti-dumping procedure and the method of calculating it

81.First of all, the normal value is a very important factor in an anti-dumping procedure.

82.It is used to determine whether a product imported into the Community is or is not being dumped because, according to the second paragraph of Article1(2) of the basic Regulation, a product is considered as being dumped if its export price to the Community is less than its normal value.

83.The normal value also makes it possible to evaluate the maximum anti‑dumping duty that the Community may impose on an undertaking because, by virtue of Article9(4) of the basic Regulation, it must not exceed the margin of dumping, which broadly corresponds to the difference between the normal value and the export price after those two figures have been adjusted to make them comparable.

84.It follows that, if the export price is constant, the higher the normal value the greater will be the dumping margin and, therefore, also the maximum anti‑dumping duty that can be imposed on exporters of the product in question.

85.Secondly, the normal value is an objective value. It is based in principle, as Article2(1) of the basic Regulation states, on the price paid for the product concerned by independent customers in the exporting country in the ordinary course of trade, that is to say, in ideal conditions of free competition.

86.The difficulty arises from the fact that, in reality, that price does not always exist or is not always usable. The basic Regulation therefore includes detailed provisions aiming to construct that price in the most reasonable way possible, on the basis either of prices in the exporting country charged by sellers of a like product or of a construction on the basis of production costs in that country or, finally, on the basis of export prices in an appropriate third country.

87.However, whenever possible, the basis should be the prices of the product concerned paid by independent buyers in the exporting country. I think the idea that the best method of determining the normal value is to find an objective reality is what favours priority being given to that criterion before the other methods of calculation mentioned in Article2 of the basic Regulation.

88.In my opinion, the same idea justifies the priority expressed in Article2(7)(a) of the basic Regulation in the case of imports from non‑market economy countries.

89.In that situation, it is not possible to take account of prices in the exporting country because they are not the normal result of market forces.(11) Therefore the Community legislature had to choose from other references. Consequently it provided that the normal value must be determined primarily on the basis of the prices in a market-economy third country, chosen in a reasonable manner or, only if that is impossible, on any other reasonable basis, such as the price paid or payable in the Community.

90.The priority accorded to the price of a like product in a third country chosen in a reasonable manner is also explained, in my opinion, by the aim of giving preference to a finding of an objective reality which, in this case, is as close as possible to the situation in the exporting country. Consequently the Community legislature intended the normal value to be determined, wherever possible, on the basis of the prices in a third country closely resembling the exporting country with regard to the product characteristics, the sales volume, access to raw materials and power, the production process and which, by reason of those similarities, may be considered an analogue country.

91.Consequently the prices of a like product in the Community are to be used only as an alternative because they may be influenced by factors such as the cost of labour and raw materials which are generally higher than in a non-market economy third country.

92.No doubt, as GLS claims in its alternative plea of annulment, the Commission can and must make adjustments to offset those differences. However, such adjustments are made in the light of estimates which are obviously more questionable than an objective finding of the actual prices in a third country which is an analogue of the country exporting the product concerned.

93.The priority expressly provided for in Article2(7)(a) of the basic Regulation in favour of the prices of a like product in a market‑economy third country aim therefore, in my view, to ensure that the anti-dumping duty does not exceed the dumping margin, in accordance with the requirement laid down by Article9(4) of the basic Regulation and the principle in ArticleVI(2) of the GATT, and also Article9 of the Agreement on Implementation of that Article.

94.The reasons why I consider that the Commission failed in its obligations in the present case should be examined in the light of the foregoing considerations.

b)The reasons why the Commission failed in its obligations

95.It is apparent from Article2(7)(a) of the basic Regulation that the Commission can legally determine the normal value on the basis of the price paid in the Community only if it is impossible for the Commission to choose a market‑economy third country which appears appropriate by reference to reliable information which is available and taking account of the prescribed time limits.

96.As the General Court observed in Case T‑255/01,(12) the Council and the Commission may choose not to apply the general rule set out in Article2(7)(a) of the basic regulation for the determination of the normal value of products originating in non-market economy countries, using a different reasonable basis, only where it is impossible to apply that general rule. The General Court considers that such impossibility arises only where the data required in order to determine normal value are not available or not reliable.(13)

97.That judgment provides the following pointers. First, contrary to what the Commission suggests in its written observations, the choice of the alternative calculation method, rather than the prices in or from an appropriate third country, is not a matter in which the Commission has a broad discretion. The case‑law to which the Commission referred, which states that it has a broad discretion in determining the normal value, is not applicable in the above-mentioned situation. The question whether, in the light of the available information, it was actually impossible for the Commission to take as a basis the prices in or from an appropriate third country does not necessitate an analysis of a complex economic situation and must therefore be open to a full judicial review.

98.Secondly, the concept of ‘available information’ within the meaning of Article2(7)(a) of the basic Regulation cannot be confined to the information provided by the complainant in its complaint or the information subsequently provided by the parties in the course of the investigation.

99.It is true, as the Council and the Commission point out, that the investigation provided for by the basic Regulation involves the participation of the interested parties, so that they have a right to submit their comments, particularly on the choice of the calculation method for the normal value proposed by the Commission. It is also true that an investigation is generally initiated as a result of a complaint and that the Commission must take into consideration the information in the complaint, particularly with regard to the production of the product concerned in the world.

100.Nevertheless, the Commission cannot be limited to those sources of information. No such limitation is laid down by Article2(7)(a) of the basic Regulation.

101.The Commission has an obligation to consider on its own initiative all the relevant information to which it may itself have access. In an anti-dumping investigation, the Commission does not act as an arbitrator whose remit is limited to making an award solely on the basis of the information and the evidence provided by the parties.

102.That conclusion is supported by Article6(3) and (4) of the basic Regulation, which authorises the Commission to request the Member State to supply information and to carry out all necessary checks and inspections.

103.In view of the importance of an anti-dumping procedure for the parties concerned, the Commission has an obligation to search, on its own initiative, in sufficiently reliable documents at its disposal for market-economy third countries in which products identical with or similar to the product concerned are made and which may be selected as analogue countries to the exporting country.

104.On that point, the statistics published by Eurostat, the Statistical Office of the European Union, which is a directorate-general of the Commission and which has the mission of providing the Union with a high-quality statistical information service, should certainly be considered a source of information which the Commission should examine systematically.

105.Consequently, if the Eurostat statistics available when the investigation was opened or during the investigation suggest that products similar to the products concerned are made in various market-economy countries in quantities which are not manifestly insignificant, it is for the Commission to establish on its own initiative whether one of them may be an analogue country within the meaning of Article2(7)(a) of the basic Regulation.

106.The Commission should also, under the third paragraph of Article2(7)(a), quickly inform the parties whom it considers interested in the investigation of the market-economy third country which it proposes to select so that they can submit their comments on that point within ten days of being informed.

107.In the present case, however, it must be said that the Commission failed in those obligations.

108.The Eurostat statistics available when the Commission examined the complaint which has given rise to this case show that products in the same CN classification as the product in question and originating from Israel, Morocco, the Philippines, Swaziland, Thailand and Turkey were imported into the Community. The fact that they have the same classification in the common customs tariff suggests that they could be considered like products within the meaning of the basic Regulation.

109.The statistical information also shows that, although those imports are in smaller quantities than those originating from China, they do not appear to be manifestly insignificant. Therefore the statistics suggest that products similar to the product in question were made in those countries in sufficient quantities for their price to be considered representative of the market concerned.

110.At the hearing the Commission explained that the Eurostat statistics show, for each third country, the quantities of products imported as an aggregate for the three CN codes, so that it is not possible to isolate a significant quantity of products comparable with the products in question. Nevertheless, it must be said that the statistics are objective evidence that other third countries exist in which such products can be made.

111.I also note that, in recital 17 of Regulation No1355/2008, the Council states that the Commission’s calculation of the normal value on the basis of prices in the Community was the only reasonable basis of calculation, without giving the reasons why none of the third countries mentioned above, which have a market economy, could be selected as an analogue country.

112.Finally, according to the case file, particularly the notice of initiation of the investigation, the Commission, on sight of the information in the complaint, proceeded from the assumption that the product concerned was not produced outside the Community and China.

113.As GLS very rightly says, the Commission therefore made an erroneous assessment regarding the production of the product concerned at world level and regarding the analogue countries which could have been taken into consideration, although the Commission had at its disposal the Eurostat statistics proving the importation, in quantities which were not manifestly insignificant, of products which could constitute like products originating from market-economy third countries.

114.However, the Commission admitted its mistake as it states, in recital 40 of Regulation 642/2008, that Thailand was a potential analogue country and that it, the Commission, sent questionnaires to two companies in Thailand, but to no effect.

115.It is true that, in doing so, the Commission did its best to rectify its initial error of assessment and, in my opinion, it cannot be criticised for failing to take due care with regard to the two companies in question.

116.It is not disputed that the way in which the questionnaires were sent and the time limit within which the two companies were asked to complete them would have enabled them to reply, so that their failure to do to is entirely attributable to themselves. Furthermore, the Commission of course has no means of bringing pressure to bear on companies in third countries to compel them to cooperate.

117.However, the step it took in that respect does not mean that the Commission duly fulfilled its obligations. After that setback in December 2007, the Commission did not consider, when it still had time to do so, whether another third country could be chosen as an analogue from among the market-economy countries shown in the Eurostat statistics which, like Thailand, appeared to be producers of the product concerned. Although the Commission was not required to take into account a country such as Japan since the reference to it in the course of a hearing was not subsequently confirmed in writing, contrary to the last sentence of Article6(6) of the basic Regulation, the Commission had a duty to carry out the necessary checks with regard to third countries on the basis of the evidence of its own statistics.

118.Therefore, in my opinion, the Commission failed to fulfil the requirements of Article18(5) of the basic Regulation which, if I may remind the Court, provide that if, in default of cooperation by an interested party, determinations, including those regarding normal value, are based on the available information, including the information supplied in the complaint, it will, where practicable and with due regard to the time limits of the investigation, be checked by reference to information from other independent sources which may be available, such as published price lists, official import statistics and customs returns.

119.That is why I consider, like GLS, that in the present case the Commission did not make a serious and sufficient effort to determine the normal value of the product in question on the basis of the current prices in a market-economy third country. I therefore propose that the Court’s reply to the question referred should be that Regulation No1355/2008 is unlawful on that ground.

IV–Conclusion

120.The reply to the question referred to the Court by the Finanzgericht Hamburg should therefore be as follows:

Council Regulation (EC) No1355/2008 of 18December 2008 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain prepared or preserved citrus fruits (namely mandarins, etc.) originating in the People’s Republic of China is invalid in so far as the European Commission determined the normal value of the product in question on the basis of the prices paid or payable in the European Community for a like product, without making a sufficient effort to determine the normal value on the basis of the current prices in an appropriate third country, contrary to the requirements of Article2(7)(a) of Council Regulation (EC) No384/96 of 22December 1995 on protection against dumped imports from countries not members of the European Community, as amended by Council Regulation (EC) No2117/2005 of 21 December 2005.

1– Original language: French.

2 – Commission Regulation (EC) No642/2008 of 4July 2008 imposing a provisional anti‑dumping duty on imports of certain prepared or preserved citrus fruits (namely mandarins, etc.) originating in the People’s Republic of China (OJ 2008 L178, p.19), and Council Regulation (EC) No1355/2008 of 18December 2008 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain prepared or preserved citrus fruits (namely mandarins, etc.) originating in the People’s Republic of China (OJ 2008 L350, p.35).

3 – Council Regulation (EC) No384/96 of 22December 1995 on protection against dumped imports from countries not members of the European Community 1996 (OJ 1996 L56, p.1), as amended by Council Regulation (EC) No 2117/2005 of 21 December 2005 (OJ 2005 L340, p.17), ‘the basic Regulation’).

4 – OJ 2007 C246, p.15.

5 – ‘GLS’.

6 – Joined Cases C‑305/86 and C‑160/87 Neotype Techmashexport v Commission and Council [1990] ECR I‑2945, paragraph 13, and cases cited.

7 – Case C‑239/99 Nachi Europe [2001] ECR I‑1197, paragraph 39.

8 – Case C‑157/87 Electroimpex and Others v Council [1990] ECR I‑3021, paragraphs 10 to 13.

9–GLC cites mainly Case C‑16/90 Nölle [1991] ECR I‑5163.

10 – The Commission refers to Nölle, and to Case C‑26/96 Rotexchemie [1997] ECR I‑2817, and Case T‑164/94 Ferchimex v Council [1995] ECR II‑2681.

11 – Rotexchemie, paragraph 9, and cases cited.

12 – Changzhou Hailong Electronics & Light Fixturse and Zhejiang Yankon v Council [2003] ECRII-4741.

13 – Paragraph 59.