Canadian Solar Emea and Others v Council (Dumping - Imports of crystalline silicon photovoltaic modules - China - Opinion) [2018] EUECJ C-236/17P

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(Appeal — Dumping — Imports of crystalline silicon photovoltaic modules and key components (i.e. cells) originating in or consigned from the People’s Republic of China — Definitive duties — Regulation (EU) No 1168/2012 — Immediate application — Causal link — Other known factors — Level of the anti-dumping duty)

(ii) Should the anti-dumping duty offset only injury attributed to the dumped imports, not injury attributed to other known factors?

(iii) Did the General Court hold, in the judgment under appeal, that in setting the amount of the anti-dumping duty the institutions are required to take account of their findings in the non-attribution analysis?

1. By this appeal, Canadian Solar Emea GmbH (‘CSE’), Canadian Solar Manufacturing (Changshu), Inc. (‘CSM (Changshu)’), Canadian Solar Manufacturing (Luoyang), Inc. (‘CSM (Luoyang)’), CSI Cells Co. Ltd (‘CSI Cells’) and CSI Solar Power (China), Inc. (‘CSI Solar Power’) (collectively ‘Canadian Solar’ or ‘the appellant’) (2) request the Court to set aside the judgment of the General Court (3) by which the latter dismissed the action for the annulment of Council Implementing Regulation (EU) No 1238/2013 (‘the regulation at issue’). (4)

2. This appeal raises, in particular, a procedural issue, namely the immediate application of Regulation (EU) No 1168/2012, (5) which amended Article 2(7)(c) of Council Regulation (EC) No 1225/2009 (‘the basic regulation’) (6) to the effect that, where an anti-dumping investigation concerns imports from a non-market economy country and a producer subject to that investigation submits a claim for market economy treatment (an ‘MET claim’), the time limit by which a determination must be made on that claim (an ‘MET determination’) is extended from three months to eight months after the initiation of the investigation. This appeal also raises a substantive question, namely whether, where factors other than the dumped imports contribute to the injury suffered by EU industry, the amount of the anti-dumping duty must be set at a level where it offsets only the injury attributed to the dumped imports.

3. Article 2(7) of the basic regulation, headed ‘Determination of dumping’, provides:

(b) In anti-dumping investigations concerning imports from the People’s Republic of China, Vietnam and Kazakhstan and any non-market-economy country which is a member of the WTO at the date of the initiation of the investigation, normal value shall be determined in accordance with paragraphs 1 to 6, if it is shown, on the basis of properly substantiated claims by one or more producers subject to the investigation and in accordance with the criteria and procedures set out in subparagraph (c), that market economy conditions prevail for this producer or producers in respect of the manufacture and sale of the like product concerned. When this is not the case, the rules set out under subparagraph (a) shall apply.

(c) A claim under subparagraph (b) must be made in writing and contain sufficient evidence that the producer operates under market economy conditions, that is if:

– decisions of firms regarding prices, costs and inputs, including for instance raw materials, cost of technology and labour, output, sales and investment, are made in response to market signals reflecting supply and demand, and without significant State interference in this regard, and costs of major inputs substantially reflect market values,

– firms have one clear set of basic accounting records which are independently audited in line with international accounting standards and are applied for all purposes,

– the production costs and financial situation of firms are not subject to significant distortions carried over from the former non-market economy system, in particular in relation to depreciation of assets, other write-offs, barter trade and payment via compensation of debts,

– the firms concerned are subject to bankruptcy and property laws which guarantee legal certainty and stability for the operation of firms, and

A determination whether the producer meets the abovementioned criteria shall be made within three months of the initiation of the investigation, after specific consultation of the Advisory Committee and after the Community industry has been given an opportunity to comment. This determination shall remain in force throughout the investigation.’

4. Article 3 of the basic regulation, headed ‘Determination of injury’, states:

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 Community 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 Community 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 Community producers, developments in technology and the export performance and productivity of the Community industry.

5. According to Article 9(4) of the basic regulation, headed ‘Termination without measures; imposition of definitive duties’:

‘Where the facts as finally established show that there is dumping and injury caused thereby, and the Community interest calls for intervention in accordance with Article 21, a definitive anti-dumping duty shall be imposed by the Council, acting on a proposal submitted by the Commission after consultation of the Advisory Committee. The proposal shall be adopted by the Council unless it decides by a simple majority to reject the proposal, within a period of one month after its submission by the Commission. Where provisional duties are in force, a proposal for definitive action shall be submitted no later than one month before the expiry of such duties. The amount of the anti-dumping duty shall not 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.’

(a) in the penultimate sentence of subparagraph (c) the words “shall be made within three months of the initiation of the investigation” are replaced by the words “shall normally be made within seven months of, but in any event not later than eight months after, the initiation of the investigation”;

“(d) When the Commission has limited its examination in accordance with Article 17, a determination pursuant to subparagraphs (b) and (c) of this paragraph shall be limited to the parties included in the examination and any producer that receives individual treatment pursuant to Article 17(3).”;

‘This Regulation shall apply to all new and to all pending investigations as from 15 December 2012.’

8. CSM (Changshu), CSM (Luoyang), CSI Cells and CSI Solar Power are exporting producers of the product concerned. CSE imports the product concerned into the European Union, from the abovementioned and other suppliers.

9. On 6 September 2012, the Commission initiated an anti-dumping proceeding with regard to imports of crystalline silicon photovoltaic modules and key components originating in China. (7)

10. In view of the potentially large number of exporting producers in the country concerned involved in the proceeding, reference was made in Section 5.1(a) of the notice of initiation to the possibility that the sampling technique would be used, in accordance with Article 17 of the basic regulation. On 21 September 2012 Canadian Solar provided the Commission with the information for the selection by the Commission of a sample of exporting producers. The sample of exporting producers selected by the Commission consisted of seven groups of companies. (8) Canadian Solar was not selected for that sample.

11. On 13 November 2012 Canadian Solar submitted an MET claim pursuant to Article 2(7)(b) of the basic regulation.

13. On 3 January 2013 the Commission informed Canadian Solar that its MET claim would not be considered.

14. On 4 June 2013 the Commission adopted Regulation No 513/2013, whereby a provisional anti-dumping duty was imposed on imports of the product concerned from China. (10)

15. On 2 December 2013 the Council adopted the regulation at issue, whereby a definitive anti-dumping duty was imposed on imports of the product concerned from China. In Article 1 of that regulation, the Council imposed an anti-dumping duty of 41.3 % on imports invoiced by cooperating companies listed in Annex I to that regulation. CSM (Changshu), CSM (Luoyang), CSI Cells and CSI Solar Power were included on that list. Article 3 of the regulation at issue exempted from the duty imposed by Article 1 the imports invoiced by companies listed in the Annex to Commission Implementing Decision 2013/707/EU. (11)

16. Decision 2013/707 was adopted by the Commission on 4 December 2013. In that decision, the Commission accepted the amended undertaking offered by the China Chamber of Commerce for Import and Export of Machinery and Electronic Products and a group of exporting producers listed in the Annex to that decision. CSM (Changshu), CSM (Luoyang), CSI Cells and CSI Solar Power were included on that list.

17. On 4 June 2015 the Commission adopted Implementing Regulation (EU) No 2015/866, whereby acceptance of the undertaking was withdrawn in relation to CSM (Changshu), CSM (Luoyang), CSI Cells and CSI Solar Power. (12)

18. On 28 February 2014 Canadian Solar brought an action for the annulment of the regulation at issue.

19. By the judgment under appeal, the General Court rejected the six pleas in law and dismissed the action.

20. In particular, (13) the General Court rejected the fifth plea in law, alleging infringement of Article 2(7)(c) of the basic regulation, whereby the MET determination must be made within three months of the initiation of the investigation. Indeed, Regulation No 1168/2012, which amended Article 2(7)(c) of the basic regulation to the effect that the three-month time limit was extended to eight months, applies to all pending investigations as from 15 December 2012. Therefore, it applied to the Commission decision of 3 January 2013 rejecting Canadian Solar’s MET claim. The Commission’s failure to comply with the original three-month time limit did not create a definitive situation, which would have precluded the application of Regulation No 1168/2012. Nor, in the view of the General Court, did that failure render automatically unlawful the regulation at issue.

21. The General Court also rejected the sixth plea in law, namely that, in failing to conduct a separate assessment of the injury caused by the dumped imports and the injury caused by other known factors, the institutions infringed Article 3 of the basic regulation, and that, consequently, in setting the anti-dumping duty at a level to offset also injury caused by those other factors, they infringed Article 9(4) of that regulation. The General Court recalled that, by virtue of Article 3(6) and (7) of the basic regulation, the Council and the Commission (‘the institutions’) are under an obligation, first, to consider whether the injury suffered by the EU industry derives from the dumped imports (attribution analysis) and, second, to verify that known factors other than the dumped imports do not break the causal link between the injury suffered by the EU industry and the dumped imports (non-attribution analysis). It follows that, in setting the amount of the anti-dumping duty, the institutions must take into account their findings in the attribution and non-attribution analyses. Otherwise, there would be a risk that that duty would remove the injurious effects of factors other than the dumped imports. In the present case, the institutions had duly assessed the effects of the other known factors that contributed to the injury suffered by the EU industry. They had correctly found that those effects were insignificant and that, consequently, they did not break the causal link between the injury suffered by the EU industry and the dumped imports. Therefore, the amount of the anti-dumping duty had been correctly set.

22. By this appeal, Canadian Solar requests the Court to set aside the judgment under appeal, and either annul the regulation at issue in so far as it concerns the appellant or refer the case back to the General Court. Canadian Solar also requests the Court to order the Council to pay the appellant’s costs and its own, both at first instance and on appeal, or, if the case is referred back to the General Court, to reserve the costs at first instance and on appeal for final judgment by the General Court. Finally, Canadian Solar requests the Court to order any other parties to the appeal to pay their own costs.

23. The Council contends that the Court should dismiss the appeal and order Canadian Solar to pay the costs of the appeal and of the proceedings before the General Court.

24. The Commission contends that the Court should dismiss the appeal and order Canadian Solar to pay the costs.

25. The Commission brought a cross-appeal. It requests the Court to set aside the judgment under appeal and declare that the action at first instance is inadmissible or, in the alternative, declare that it is devoid of purpose or, in the further alternative, declare that it is unfounded and reverse the interpretation of causality under the sixth plea in law in the judgment under appeal. The Commission also requests the Court to order Canadian Solar to pay the costs.

26. Canadian Solar requests the Court to dismiss the cross-appeal. It also requests the Court to order the Commission to pay Canadian Solar’s costs and its own, both at first instance and on appeal, and order the Council to pay its own costs.

27. The Council requests the Court to set aside the judgment under appeal and declare that the action at first instance is inadmissible or, in the alternative, declare that it is devoid of purpose or, in the further alternative, declare that it is unfounded and reverse the interpretation of causality under the sixth plea in law in the judgment under appeal. The Council also requests the Court to order Canadian Solar to pay the costs.

28. At the hearing on 20 June 2018, Canadian Solar, the Council and the Commission presented oral argument.

29. Canadian Solar puts forward four grounds of appeal. As requested by the Court, I will limit myself in this Opinion to examining the third and fourth grounds of appeal.

30. By the third ground of appeal, Canadian Solar submits that the General Court erred in law in finding that Regulation No 1168/2012 applied to the investigation at issue and that the institutions’ failure to make an MET determination did not vitiate the regulation at issue. By the fourth ground of appeal, Canadian Solar claims that the General Court erred in law in allowing the institutions to set the anti-dumping duty at a level to offset not only the injury caused by the dumped imports, but also the injury caused by other known factors, and in unduly reversing the burden of proof as regards the effects of those other factors.

31. By the third ground of appeal, Canadian Solar challenges the General Court’s findings in paragraphs 152 to 154, 157, and 159 to 170 of the judgment under appeal.

33. In the first part of its third ground of appeal, Canadian Solar claims that the General Court erred in law in finding that Regulation No 1168/2012 applies. In that regard, Canadian Solar argues, first, that Regulation No 1168/2012 entered into force on 15 December 2012, that is, after the expiry on 12 December 2012 of the three-month time period by which the MET determination must be made under Article 2(7)(c) of the basic regulation in its original version. Second, substantive rules do not in principle apply to situations established before their entry into force. The expiry of the abovementioned three-month time limit created a definitive situation, and consequently Regulation No 1168/2012, being a substantive rule, does not apply. Third, the application of Regulation No 1168/2012 to pending investigations only where that three-month time limit had not expired before 15 December 2012 does not amount to a contra legem interpretation. If it were to be regarded as contra legem, Canadian Solar submits that Article 2 of Regulation No 1168/2012 is invalid in so far as it concerns the appellant, or that it cannot validly apply to the appellant’s situation because it infringes the principles of legal certainty and of non-retroactivity.

34. In the second part of its third ground of appeal, Canadian Solar submits that the General Court erred in law in finding that the failure to make an MET determination does not vitiate the regulation at issue. As Regulation No 1168/2012 did not apply, the Commission had an obligation to make a determination on its MET claim. Its failure to do so vitiated the regulation at issue and that failure cannot be challenged by Canadian Solar.

35. The Council submits that the first part of the third ground of appeal is inadmissible and, in any event, unfounded. First, the appellant’s argument that Regulation No 1168/2012 did not apply because the three-month deadline provided for by Article 2(7)(c) of the basic regulation in its original version expired before Regulation No 1168/2012 entered into force is inadmissible as it merely reiterates an argument raised before the General Court. In any event, that argument is unfounded since Article 2 of Regulation No 1168/2012 expressly provides that that regulation applies to all pending investigations as from 15 December 2012, and the anti-dumping investigation at issue was still on-going on 15 December 2012. Second, the appellant’s argument that the expiry of the abovementioned three-month period created a definitive situation is unfounded. Indeed, according to case-law, had the Commission made an MET determination within that period, it could have been changed at a later stage in the investigation. Third, the appellant’s argument that Article 2 of Regulation No 1168/2012 is invalid for the reason that the appellant did not raise before the General Court a plea of illegality of Article 2 of that regulation under Article 277 TFEU.

36. As for the second part of the third ground of appeal, the Council maintains that it is unfounded. An MET determination can be changed after it is made. Moreover, the present action is clear evidence that the failure to make an MET determination can be challenged.

37. The Commission maintains that the first part of the third ground of appeal is inadmissible and, in any event, unfounded. First, the appellant’s argument that Regulation No 1168/2012 did not apply because the three-month time limit provided for by Article 2(7)(c) of the basic regulation in its original version expired before Regulation No 1168/2012 entered into force is inadmissible, since the appellant is simply trying to re-litigate an issue raised before the General Court. In any event, that argument is unfounded, since Article 2 of Regulation No 1168/2012 states that that regulation applies to all pending investigations, whether or not that three-month time limit expired before the entry into force of that regulation. Second, the appellant’s argument that its situation became definitive on expiry of the three-month time limit is inadmissible as it merely reiterates a cause of action submitted to the General Court. In any event, that argument is unfounded as no rights crystallised on expiry of that three-month time limit. Third, the appellant’s argument that Article 2 of Regulation No 1168/2012 is invalid is inadmissible since it is a new plea in law, given that before the General Court, Canadian Solar did not raise a plea of illegality against Article 2 of Regulation No 1168/2012 pursuant to Article 277 TFEU. In any event, that argument is unfounded. Regulation No 1168/2012 was immediately applicable, since the expiry of the three-month period did not create a definitive situation.

38. The Commission submits that the second part of the third ground of appeal is unfounded. First, the Commission’s failure to make an MET determination did not vitiate the regulation at issue, since Regulation No 1168/2012 applied to the appellant’s situation and the Commission was therefore not obliged to make an MET determination. Second, Canadian Solar was able to challenge the Commission’s failure to make an MET determination, since it brought the present action.

39. Canadian Solar replies that the plea alleging invalidity of Article 2 of Regulation No 1168/2012 is admissible. Indeed, that plea was raised before, and examined by the General Court in paragraphs 154 to 170 of the judgment under appeal. According to settled case-law, it does not matter that that plea was not raised formally as a plea of illegality.

40. By the first part of its third ground of appeal, Canadian Solar claims that the General Court erred in law in finding that Regulation No 1168/2012 applied. By the second part of the third ground of appeal, Canadian Solar maintains that the General Court erred in law in finding that the institutions’ failure to make an MET determination did not vitiate the regulation at issue.

41. The Council submits that the first part of the third ground of appeal is inadmissible in part. The Commission contends that that first part is wholly inadmissible. (14)

42. First, both the Council and the Commission challenge the admissibility of the appellant’s argument that Regulation No 1168/2012 does not apply because the three-month time limit provided for by Article 2(7)(c) of the basic regulation in its original version expired before Regulation No 1168/2012 entered into force. This is because, according to the Council and the Commission, that argument merely reiterates an argument raised before the General Court.

43. In my view, that plea of inadmissibility must be rejected. By that argument, Canadian Solar is calling into question the application, by the General Court, of the transitional rule laid down in Article 2 of Regulation No 1168/2012. To that end, Canadian Solar has indicated that it considers, in particular, paragraph 152 of the judgment under appeal to be vitiated by an error of law. In paragraph 152 of that judgment, the General Court found that Regulation No 1168/2012 applied as it ‘does not provide for any exception as regards investigations in progress for which the time limit for deciding whether to grant MET by virtue of the second subparagraph of Article 2(7)(c) of the basic regulation … had already expired’. Therefore, Canadian Solar is not seeking a mere re-examination of the application submitted to the General Court. (15)

44. Second, the Commission argues that the appellant’s argument that its situation became definitive on expiry of the abovementioned three-month time limit is inadmissible as it merely reiterates an argument raised before the General Court.

45. That plea of inadmissibility must also, in my view, be rejected. By that argument, Canadian Solar is challenging the General Court’s reliance, in paragraph 157 of the judgment under appeal, on the case-law pertaining to the immediate application of new rules. According to that case-law, substantive rules, as opposed to procedural rules, do not apply to situations existing before their entry into force. Canadian Solar argues that the Commission’s obligation to make an MET determination is a substantive rule. Therefore, the appellant criticises the General Court’s finding, in paragraphs 159 to 162 of the judgment under appeal, that the expiry of the abovementioned three-month time limit did not create a definitive situation in its respect. Consequently, Canadian Solar is not seeking a mere re-examination of the application submitted to the General Court.

46. Third, the Council and the Commission challenge the admissibility of the appellant’s argument that Article 2 of Regulation No 1168/2012 is invalid in so far as it concerns Canadian Solar. The appellant did not raise before the General Court a plea of illegality of Article 2 of Regulation No 1168/2012. Therefore, that argument is challenged as being new and, as such, inadmissible.

48. It is true that Canadian Solar did not expressly refer to Article 277 TFEU before the General Court. (16)

49. However, in its application before the General Court, Canadian Solar argued that ‘interpreting [Regulation No 1168/2012] as applying to pending investigations in which the parties concerned have a vested right to have their MET claim reviewed within three months would violate the legitimate expectations of interested parties in the investigation’. Therefore, the plea of illegality was implicitly but clearly contained in the application before the General Court. Consequently, the plea of inadmissibility based on the alleged novelty of the plea of illegality must be rejected. (17)

50. Moreover, I note that, in paragraphs 154 and 167 of the judgment under appeal, the General Court held that, ‘even if [the fifth plea in law, alleging infringement of Article 2(7)(c) of the basic regulation] were to be understood as meaning that the applicants claim that Regulation No 1168/2012 is unlawful’, it would have to be rejected, since the principle of legal certainly concerns only situations established before the entry into force of the new rule, and this does not apply to the appellant’s situation. According to case-law, an appellant is entitled to rely on pleas arising from the judgment under appeal which seek to criticise, in law, its merits, whether or not the appellant raised those pleas before the General Court. (18)

51. Therefore, I consider that the first part of the third ground of appeal is admissible.

52. At the outset, I would point out that a producer from a non-market economy country may be granted market economy treatment (‘MET’) pursuant to Article 2(7)(b) of the basic regulation. In that case, normal value is calculated in accordance with the rules applicable to market economy countries. It is not calculated on the basis of prices in an analogue market economy third country, as is the case for producers subject to the same proceedings that are not granted MET, according to Article 2(7)(a) of that regulation. (19)

53. As mentioned in point 2 above, Regulation No 1168/2012 amended Article 2(7)(c) of the basic regulation to the effect that the MET determination ‘shall normally be made within seven months of, but in any event not later than eight months after, the initiation of the investigation’. Under Article 2(7)(c) of the basic regulation in its original version, the MET determination had to be made within three months of the initiation of the investigation.

54. Furthermore, Regulation No 1168/2012 limited the institutions’ obligation to make a determination on MET claims. When, in accordance with Article 17 of the basic regulation, the Commission has decided to limit its investigation to representative samples of traders, (20) the institutions are now obliged to make a determination only where the MET claim is submitted either by a producer included in the sample or by a producer who obtained the calculation of an individual dumping margin in accordance with Article 17(3) of that regulation. Under Article 2(7) of the basic regulation in its original version, there was no limitation on the institutions’ obligation to make a determination on MET claims.

55. I would also point out that the three-month time limit provided for by Article 2(7)(c) of the basic regulation in its original version had proved to be ‘impracticable, in particular in proceedings where sampling … is applied’ (21) and, in practice, it was not always complied with by the Commission. (22) That situation prompted the Commission to propose, in 2011, to extend that time limit to six months. (23) However, the three-month time limit was only extended following the Court’s ruling in Brosmann. (24) In that judgment, the Court held that, where sampling is applied, the institutions are obliged to examine all MET claims submitted by non-sampled traders within three months of the initiation of the investigation. (25) Since that judgment imposed ‘a disproportionate administrative burden’ on the Commission, (26) it was considered appropriate to extend to eight months the time limit by which the MET determination had to be made, thereby counteracting the consequences of the ruling in Brosmann (for that reason, Regulation No 1168/2012 is regarded as the ‘anti-Brosmann amendment’). (27)

56. In the present case, Canadian Solar submitted an MET claim on 6 September 2012. It was informed that that claim would not be considered on 3 January 2013, that is, after (i) the three-month time limit mentioned in point 53 above had expired on 6 December 2012, and (ii) after Regulation No 1168/2012 had entered into force on 15 December 2012. Canadian Solar was not included in the sample. Nor was it granted the benefit of Article 17(3) of the basic regulation.

57. By the first part of its third ground of appeal, Canadian Solar claims that the General Court erred in law in finding that Regulation No 1168/2012 applies.

58. I consider that Regulation No 1168/2012 applies to the investigation which led to the adoption of the regulation at issue.

59. First, Article 2 of Regulation No 1168/2012 states that that regulation applies to ‘all pending investigations as from 15 December 2012’. (28)

60. An anti-dumping investigation begins with the publication of a notice of initiation pursuant to Article 5(10) of the basic regulation. An investigation initiated pursuant to Article 5 of that regulation ends either with the adoption of definitive measures on the basis of Article 9(4) of that regulation, (29) or with a decision to terminate the proceeding without adopting measures based on Article 9(2) of the same regulation. (30) Consequently, an investigation should be regarded as ‘pending’ within the meaning of Article 2 of Regulation No 1168/2012 until either definitive measures or a decision pursuant to Article 9(2) of the basic regulation are adopted.

61. In the present case, the investigation began on 6 September 2012 with the publication of the notice of initiation and ended with the adoption of the regulation at issue on 2 December 2013. Therefore, it was still ‘pending’ when Regulation No 1168/2012 entered into force on 15 December 2012.

62. The question whether a specific producer in a non-market economy country operates under market economy conditions and should thus be granted MET is only one step in the investigation, whose purpose is to verify whether the conditions for imposing anti-dumping duties are satisfied, that is, whether there is dumping and injury caused thereby, and the Union interest calls for intervention. Once an MET determination has been made, or the time limit by which that determination must be made has expired, the investigation is still on-going in respect of all traders subject to that investigation, including the producer who submitted the MET claim (since normal value, as well as the other conditions for imposing anti-dumping duties, still needs to be assessed). Therefore, it is irrelevant that the three-month time limit, by which the MET determination had to be made under Article 2(7)(c) of the basic regulation in its original version, expired on 6 December 2012, that is, before Regulation No 1168/2012 entered into force on 15 December 2012. What matters is that Regulation No 1168/2012 entered into force before the regulation at issue was adopted.

63. Second, Article 2 of Regulation No 1168/2012 states that that regulation applies to ‘all pending investigations’. (31) It does not draw a distinction between investigations for which the three-month time limit for making the MET determination under the original version of Article 2(7)(c) of the basic regulation had already expired and investigations for which it had not.

64. Third, the appellant’s argument that Regulation No 1168/2012 is a substantive rule and, as such, does not apply to situations existing before its entry into force such as Canadian Solar’s, cannot be accepted.

65. It is settled case-law that, as a general rule, the principle of legal certainty precludes a European Union measure from taking effect from a point in time before its publication. However, it may exceptionally be otherwise where the purpose to be achieved so demands and where the legitimate expectations of those concerned are duly respected. (32) Therefore, while a new rule of law does not apply to legal situations that have arisen and become definitive under the old law, it does apply to their future effects, and to new legal situations too. (33) It is otherwise — subject to the principle of non-retroactivity of legal acts — only if the new rule is accompanied by special provisions which specifically lay down its conditions of temporal application. (34)

66. It is also settled case-law that procedural rules are generally held to apply to all proceedings pending at the time when they enter into force, (35) whereas, in order to ensure observance of the principles of legal certainty and the protection of legitimate expectations, substantive rules are usually interpreted as applying to situations existing before their entry into force only in so far as it clearly follows from their terms, their objectives or their general scheme that such an effect must be given to them. (36)

67. In the first place, it seems to me that Article 1(1)(a) of Regulation No 1168/2012, which extends from three months to eight months the time limit by which the MET determination must be made, is a procedural rule. Indeed, that provision has no impact on the producers’ right to request MET or the conditions for obtaining MET. Therefore, in my view, Article 1(1)(a) of Regulation No 1168/2012 applies to legal situations that had not become definitive when that regulation entered into force on 15 December 2012.

68. It should thus be determined whether, in the present case, Canadian Solar’s situation existed before Regulation No 1168/2012 entered into force (as opposed to a situation that was still provisional on 15 December 2012).

69. An instance of a situation ‘existing’ when the new rule entered into force may be found in Varec. (37) In that judgment, the Court found that a tenderer’s right to the protection of confidential information included in the tender ‘crystallised’ when that tender was submitted in the award procedure. Consequently, Directive 2004/18/EC, (38) which entered into force after the submission of that tender, did not apply. (39)

70. An example of a situation that was still provisional when the new rule entered into force is provided for by the Court’s judgment in Pokrzeptowicz-Meyer. (40) A fixed-term contract of employment concluded prior to the date on which the new rule entered into force, when the term of employment ends after that date, could not be regarded as an existing situation. Indeed, ‘the conclusion of a fixed-term contract of employment does not exhaust its legal effects on the date of its signature, but, on the contrary, continues regularly to produce its effects throughout the duration of that contract’. (41) Consequently, the new rule applied.

71. Another instance of a situation that was still provisional when a new rule entered into force may be found in Moravia Gas Storage. (42) Under Directive 2003/55/EC (43) and Directive 2009/73/EC, (44) which repealed Directive 2003/55, major new gas infrastructures may, upon request, be exempted from the obligation to provide negotiated third-party access. The exemption is granted by the competent national authority and notified by that authority to the Commission, which may request the Member State concerned to amend or withdraw the exemption decision. That decision was found not to create an existing situation, on the ground that the Commission may require its amendment or withdrawal. Therefore, Directive 2009/73, which entered into force after the adoption and notification of the exemption decision at issue but before the Commission ordered the Member State concerned to withdraw that decision, was to apply. (45)

72. I consider that the situation of Canadian Solar was still provisional when Regulation No 1168/2012 entered into force.

73. This is because no right ‘crystallised’ (46) on the expiry of the three-month time period by which the MET determination had to be made under Article 2(7)(c) of the basic regulation in its original version.

74. Indeed, according to case-law, failure to comply with that three-month time limit can result in the regulation adopted at the end of the procedure being annulled only if there is a possibility that, due to that irregularity, the procedure could have resulted in a different outcome. That regulation cannot be annulled on the sole ground that the Council and the Commission did not adjudicate within that time limit. (47) It follows that the institutions may validly make an MET determination after the expiry of the three-month time limit set out in Article 2(7)(c) of the basic regulation in its original version (as far as that delay had no impact on the outcome of the procedure). It also follows that Canadian Solar was not automatically granted MET on expiry of that three-month time limit by reason of the Commission’s failure to act.

75. Furthermore, had the Commission made an MET determination within the three-month time limit, that determination could have been amended at a later stage in the proceedings, after the expiry of that time limit. (48) It follows that no definitive situation is created on expiry of the three-month time limit. Similarly, in Moravia Gas Storage, the reason why no definitive situation existed on adoption of a national exemption decision was that that decision could still be called into question by the Commission at a later stage in the proceedings. (49)

76. Therefore, the General Court did not err in law in finding, in paragraphs 159 to 166 of the judgment under appeal, that Canadian Solar was in a provisional situation when Regulation No 1168/2012 entered into force.

77. Consequently, according to the case-law cited in point 66 above, the extension of the time limit by which the MET determination is to be made, provided for by Article 1(1)(a) of Regulation No 1168/2012, applied to the investigation which led to the adoption of the regulation at issue.

78. In the second place, Article 1(1)(b) of Regulation No 1168/2012 states that, when sampling is applied, the institutions are obliged to make a determination only where the MET claim is submitted by sampled producers or by producers that obtained the calculation of an individual dumping margin pursuant to Article 17(3) of the basic regulation. The institutions are not required to consider MET claims submitted by non-sampled producers like the appellant, unless they obtained the calculation of an individual dumping margin pursuant to Article 17(3) of the basic regulation. (50)

79. In my view, Article 1(1)(b) of Regulation No 1168/2012 is a substantive rule as it deprives non-sampled producers of their right to have their MET claims examined, unless they obtained the calculation of an individual dumping margin pursuant to Article 17(3) of the basic regulation. As a substantive rule, it should not, according to the case-law cited in point 66 above, apply to situations that were still provisional when it entered into force, such as Canadian Solar’s. (51) However, according to that same case-law, it nonetheless applied because it clearly follows from the terms of Article 2 of Regulation No 1168/2012 that ‘this regulation’, that is, all provisions thereof, applies to ‘all pending investigations as from 15 December 2012’.

80. Consequently, Article 1(1)(b) of Regulation No 1168/2012 applied to the investigation which led to the adoption of the regulation at issue.

81. The General Court correctly found, in paragraph 166 of the judgment under appeal that, because on 15 December 2012 Canadian Solar was in a provisional situation, Regulation No 1168/2012 applied.

82. Fourth, the plea of illegality raised by the appellant against Article 2 of Regulation No 1168/2012 cannot succeed. In Canadian Solar’s view, that provision infringes the principles of legal certainty and non-retroactivity. However, according to case-law, the principle of legal certainty does not preclude a European Union measure from exceptionally taking effect from a point in time before its publication, provided that the legitimate expectations of those concerned are respected. (52) The principle of the protection of legitimate expectations does not generally prevent new rules from applying to the future effects of situations which arose under the earlier rules (53) and, in the present case, Canadian Solar has not explained why the General Court erred in finding, in paragraph 168 of the judgment under appeal, that, at the time of the initiation of the investigation, the appellant could and should have foreseen the adoption of Regulation No 1168/2012. Consequently, the General Court did not err in law in finding, in paragraph 154 of the judgment under appeal, that Regulation No 1168/2012 was lawful.

83. The plea of illegality raised by the appellant and the first part of the third ground of appeal should, in my view, be rejected.

84. By the second part of its third ground of appeal, Canadian Solar claims that the General court erred in law in finding that the institutions’ failure to make an MET determination did not vitiate the regulation at issue.

86. First, it follows from point 77 above that the institutions did not have an obligation to make a determination within the three-month time limit provided for by Article 2(7)(c) of the basic regulation in its original version, as the eight-month time limit laid down by Regulation No 1168/2012 applied. Consequently, the institutions’ failure to make a determination within the former time limit cannot vitiate the regulation at issue. The General Court did not err in law in finding, in paragraph 163 of the judgment under appeal, that the institutions’ failure to comply with that time limit did not vitiate the regulation at issue.

87. Moreover, in my opinion, the institutions were not obliged to make a determination on the MET claim submitted by Canadian Solar. The reason is that, as mentioned in point 80 above, Article 1(1)(b) of Regulation No 1168/2012, which amended Article 2(7) of the basic regulation to the effect that a determination must be made only in respect of MET claims submitted by sampled producers or by producers that obtained the calculation of an individual dumping margin, applied. Since Canadian Solar was not included in the sample and it did not obtain the calculation of an individual dumping margin, the institutions were not obliged to make a determination on its MET claim. Therefore, the General Court correctly found, in paragraph 170 of the judgment under appeal, that Canadian Solar did not have any right to examination of its MET claim. Consequently, the institutions’ failure to make that determination could not vitiate the regulation at issue.

88. Second, the appellant’s argument that it cannot challenge the Commission’s failure to make an MET determination cannot be accepted. That failure was challenged by Canadian Solar within the framework of the action seeking annulment of the regulation at issue and it was duly examined by the General Court in paragraphs 149 to 170 of the judgment under appeal. It is challenged before the Court and considered in the present Opinion.

89. Consequently, the General Court did not err in law in finding that the institutions’ failure to make a determination on the MET claim submitted by Canadian Solar does not vitiate the regulation at issue.

92. In the first part of its fourth ground of appeal, Canadian Solar claims that the General Court erred in law in allowing, in paragraphs 205 to 217 of the judgment under appeal, the institutions to set the anti-dumping duty at a level to offset not only the injury attributed to the dumped imports, but also the injury attributed to other known factors. In that regard, Canadian Solar argues, first, that when determining the amount of the anti-dumping duty, the institutions must discard the effects of those other factors even where they do not break the causal link between the injury suffered by the Union industry and the dumped imports. Otherwise, protection would be granted to the Union industry beyond that which is necessary. Therefore, the General Court erred in holding that the institutions must discard the effects of those other factors only where they break the causal link. Second, the General Court erred in finding that, when setting the amount of the anti-dumping duty, the institutions were not required to discard the effects of three specific other known factors (namely, the purchase of the product concerned by EU producers for resale on the EU market as their own, the reductions in a support scheme by Member States, and the financial crisis) as those three factors did not break the causal link.

93. In the second part of its fourth ground of appeal, Canadian Solar claims that the General Court erred in law in finding, in paragraphs 202 and 205 of the judgment under appeal, that it was for the appellant to demonstrate the quantitative effects of factors other than the dumped imports.

94. The Council contends that the first part of the fourth ground of appeal should be dismissed as being unfounded and requests the Court to substitute the grounds in paragraphs 191 to 193 of the judgment under appeal and hold that the determination of injury pursuant to Article 3 of the basic regulation and the calculation of the injury margin in accordance with Article 9(4) thereof are two separate issues.

95. In the alternative, the Council submits that the first part of the fourth ground of appeal should be dismissed as being inadmissible in part and wholly unfounded. First, the Council claims that the appellant’s argument that the General Court erred in finding that the effects of the three other known factors mentioned in point 92 above are insignificant is inadmissible, as that is a question of fact. Second, the Council contends that the first part of the fourth ground of appeal is unfounded as, contrary what Canadian Solar argues, the General Court did not hold that the institutions are obliged to set the anti-dumping duty at a level to offset only injury attributed to the dumped imports. Nor did the General Court err in finding that the effects of the abovementioned three other known factors are insignificant.

96. The Council further contends that the second part of the fourth ground of appeal is unfounded.

97. The Commission maintains that the first part of the fourth ground of appeal is inoperative and, in the alternative, unfounded. It is inoperative because the General Court did not hold that, when determining the amount of the anti-dumping duty, the institutions are obliged to carry out an attribution analysis and a non-attribution analysis. In the alternative, if the Court were to consider that the General Court did hold that those analyses must be carried out for the determination of the amount of the anti-dumping duty, the Commission submits that the General Court erred in law and it requests that the grounds be substituted in that respect. (54)

98. The Commission contends that the second part of the fourth ground of appeal is unfounded. This follows, in particular, from the fact that the first part of that ground of appeal is unfounded.

99. By the fourth ground of appeal, Canadian Solar claims that the General Court erred in law in allowing the institutions to set the anti-dumping duty at a level to offset not only injury attributed to the dumped imports, but also injury attributed to other known factors, and in unduly reversing the burden of proof.

100. As mentioned in point 92 above, Canadian Solar claims that the General Court erred in finding that, when setting the amount of the anti-dumping duty, the institutions were not required to discard the effects of three specific other known factors because those other factors did not break the causal link between the injury suffered by the Union industry and the dumped imports. The Council contends that that argument is inadmissible, as it is a question of fact.

102. The question whether the effect of a specific known factor other than the dumped imports may be regarded as ‘insignificant’, so that it does not break the causal link between the injury suffered by the Union industry and the dumped imports, is a question of legal characterisation of the facts, not a question of fact. As such, it may be reviewed by the Court. (55)

103. Article 3(1) of the basic regulation requires the injury suffered by the Union industry to be ‘material’. Under Article 3(2) of that regulation, in order to determine whether the Union industry suffers material injury, consideration must be given, first, to the volume of the dumped imports and their effect on prices within the European Union and, second, to the consequent impact of those imports on the Union industry.

104. As regards the impact of the dumped imports on the Union industry, Article 3(6) of the basic regulation requires a demonstration that the volume and/or prices of those imports ‘are responsible for an impact on the [Union] industry …, and that this impact exists to a degree which enables it to be classified as material’. That analysis is known as the ‘attribution analysis’. (56)

105. Furthermore, factors other than the dumped imports may contribute to the injury suffered by the Union industry. By way of example, according to the regulation at issue, the financial crisis and its effects on access to finance had a certain impact on the situation of the EU solar industry, which is capital intensive. (57) According to Article 3(7) of the basic regulation, known factors other than the dumped imports must ‘be examined to ensure that injury caused by these other factors is not attributed to the dumped imports under paragraph 6’. That analysis is known as the ‘non-attribution’ analysis. (58)

106. According to settled case-law, it is for the institutions to ascertain whether the effects of those other factors were not such as to break the causal link between, on the one hand, the imports in question and, on the other, the injury suffered by the Union industry. It is also for them to verify that the injury attributable to those other factors is not taken into account in the determination of injury within the meaning of Article 3(7) of the basic regulation and, consequently, that the anti-dumping duty imposed does not go beyond what is necessary to offset the injury caused by the dumped imports. However, if the institutions find that, despite such factors, the injury caused by the dumped imports is material under Article 3(1) of the basic regulation, the causal link between those imports and the injury suffered by the Union industry can consequently be established. (59)

107. By the first part of its fourth ground of appeal, Canadian Solar claims that the General Court erred in law in allowing, in paragraphs 205 to 217 of the judgment under appeal, the institutions to set the anti-dumping duty at a level to offset not only the injury attributed to the dumped imports, but also the injury attributed to other known factors.

(ii) Should the anti-dumping duty offset only injury attributed to the dumped imports, not injury attributed to other known factors?

108. I consider that in setting the amount of the anti-dumping duty, the institutions are not required to take into account their findings in the non-attribution analysis carried out under Article 3(7) of the basic regulation.

109. First, this follows from the wording of Article 3(6) and (7) and Article 9(4) of the basic regulation.

110. The attribution and non-attribution analyses referred to in points 104 and 105 above are carried out in order to ascertain that the injury suffered by the Union industry is caused by the dumped imports, which is one of the conditions for applying an anti-dumping duty, together with the existence of dumping, injury and a Union interest for intervention. (60) Indeed, Article 3(6) of the basic regulation states that the demonstration ‘that the dumped imports are causing injury within the meaning of this [r]egulation’ entails a demonstration that the volume and/or prices of the dumped imports ‘are responsible for’ an impact on the Union industry, that is, that the injury suffered by the Union industry is attributable to the dumped imports. Conversely, Article 3(7) of that regulation requires a demonstration that injury attributable to factors other than the dumped imports is ‘not attributed to [those] imports’ or, in the words of the Court and of the General Court, a demonstration that the effects of those other factors are not such as to break the causal link between the injury suffered by the Union industry and the dumped imports. (61)

111. Pursuant to Article 3(6) of the basic regulation, the causal link between the injury suffered by the Union industry and the dumped imports is considered to be demonstrated if the injury attributable to the dumped imports is ‘material’. In that respect, it does not matter that there is injury attributed to factors other than the dumped imports, as far as the injury attributed to the dumped imports is material. (62)

112. As for the amount of the anti-dumping duty, it must, according to the last sentence of Article 9(4) of the basic regulation, ‘be adequate to remove the injury to the Union industry’. That sentence should be read in conjunction with the reference, in the first sentence of that provision, to ‘injury caused [by dumping]’. (63) Consequently, the anti-dumping duty must remove the injury ‘caused by’ the dumped imports within the meaning of Article 3(6) and (7) of the basic regulation. It follows that the anti-dumping duty may remove injury attributed to factors other than the dumped imports, as far as the injury attributed to the dumped imports is material since, in that case, the injury suffered by the Union industry is considered to be ‘caused by’ the dumped imports.

113. Had this not been the intention of the EU legislature, Article 9(4) of the basic regulation would have required the anti-dumping duty to remove injury ‘attributed to’ the dumped imports, rather than refer to injury ‘caused thereby’. I note, in that regard, that the term ‘attributed’ is used in Article 3(7) of that regulation, whereas it is not used in Article 9(4) thereof. I also note that the latter provision does not make reference to the former.

114. This is confirmed by the case-law cited in point 106 above. According to that case-law, the institutions are required to verify that injury attributable to other known factors is not taken into account in the determination of injury within the meaning of Article 3(7) of the basic regulation. Since, as explained above, that provision pertains to the demonstration of a causal link between the injury suffered by the Union industry and the dumped imports, this means that, according to that case-law, the institutions are required to verify that injury attributable to other known factors is not taken into account in the determination of the causal link. That case-law does not require the institutions to verify that injury attributable to those other factors is not taken into account in the determination of the anti-dumping duty. I should also stress that the statement of the Court and of the General Court that the anti-dumping duty cannot ‘go beyond what is necessary to offset the injury caused by the dumped imports’ is immediately followed by the assertion that it suffices, for the causal link to be established, that injury attributed to the dumped imports is material. (64)

115. Second, it is true that, according to case-law, the objective of Article 3(7) of the basic regulation is to ensure that protection is not granted to the Union industry beyond that which is necessary. (65) However, it does not follow that the anti-dumping duty should offset only injury attributed to the dumped imports.

116. Reference should be made, in that respect, to Advocate General Trstenjak’s Opinion in Moser Baer. (66) That case pertained to the annulment of a regulation imposing a definitive countervailing duty on imports of recordable compact discs originating in India. (67) The Council had examined the effects of another known factor, namely the payment of allegedly excessive royalties by EU producers, and found that that other factor did not break the causal link between the injury suffered by the Union industry and the subsidised imports. This was because, first, those royalties were paid not only by EU producers, but also by the Indian exporting producers and, second, they were already present before the subsidised imports became significant. Advocate General Trstenjak agreed with the Council that the causal link had not been broken by reason of the royalties. However, in her view, it did not necessarily follow that the anti-dumping duty was lawful. Indeed, in Advocate General Trstenjak’s words, ‘it may be appropriate, when computing the injury elimination threshold, to take account of factors which, although not breaking the causal link between the subsidised imports and the injury, might nevertheless have an effect on the level of the injury elimination threshold’. (68)

117. In support of that statement, Advocate General Trstenjak referred to the ‘lesser duty’ rule laid down in the last sentence of Article 15(1) of Regulation No 2026/97 or, as regards anti-dumping measures, the last sentence of Article 9(4) of the basic regulation. According to the latter provision, (69) ‘the amount of the anti-dumping duty shall not 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 [Union] industry’. Therefore, the injury margin is used to determine the rate of the anti-dumping (countervailing) duty where the dumping (subsidy) margin is higher than the injury margin. In Advocate General Trstenjak’s view, because ‘the aim of the “lesser duty” rule is that the [Union] industry should not be afforded protection beyond what is necessary’, account may be taken of factors other than the subsidised imports when computing the level of the countervailing duty, as mentioned in the preceding point. (70)

118. However, in Moser Baer, Advocate General Trstenjak considered that the Council was not required to take account of the effects of the royalties when computing the injury elimination threshold as those royalties were due not only by EU producers, but also by Indian exporting producers. (71)

119. In its judgment in Moser Baer, the Court found, first, that the causal link between the injury and the subsidised imports had not been broken by reason of the royalties, as that factor was present before the subsidised imports became significant and, second, that those royalties had no bearing on the calculation of the level of undercutting as they affected both EU prices and import prices. (72)

120. Consequently, the Court did not refer to the aim of the ‘lesser duty’ rule as analysed in points 116 and 117 above. Admittedly, the Court could have limited itself to finding that the causal link had not been broken without proceeding to verify whether the allegedly excessive royalties affected the level of undercutting. However, in Moser Baer, it was clear that the other known factor had no impact on the level of undercutting.

121. I agree with Advocate General Trstenjak (73) that the aim of the ‘lesser duty’ rule is to ensure that protection is not granted to the Union industry beyond that which is necessary. However, Article 9(4) of the basic regulation requires only that the anti-dumping duty be based on the injury margin when that margin is lower than the dumping margin. The application of such ‘lesser duty’ rule ensures that the protection granted does not exceed what is necessary.

122. I would also point out that Article 9(4) of the basic regulation does not require that the anti-dumping duty remove only the injury attributed to the dumped imports. As mentioned in point 113 above, that provision requires the removal of injury caused by the dumped imports, not of injury attributed to the dumped imports. Nor does Article 9(4) of the basic regulation make reference to Article 3(7) of that regulation.

123. Third, I should stress that the appellant does not cite any case where an anti-dumping duty was annulled because it offset injury attributed to a factor other than the dumped imports. The judgment in Allied Corporation, (74) on which Canadian Solar relied at first instance and in the cross-appeal, does not call into question the reasoning above.

124. In Allied Corporation, the Court annulled a regulation imposing a definitive anti-dumping duty on the ground that the Council, which found that factors other than the dumped imports contributed to the injury suffered by the Union industry, failed to ascertain whether the amount of the anti-dumping duty imposed was ‘necessary in order to remove the injury’. (75)

125. However, in Allied Corporation, the Council had set the anti-dumping duty at the level of the dumping margin without verifying whether the injury margin was lower than the dumping margin. Consequently, the contested regulation was annulled on the ground that the Council had failed to ascertain whether the ‘lesser duty’ rule applied. That regulation was not annulled on the ground that, when determining the amount of the anti-dumping duty, the Council had failed to discard the injury attributed to other known factors.

126. I should add that in Gold East Paper the General Court dismissed the plea alleging that ‘the institutions failed to ensure that the injury attributable to factors other than dumping was not taken into account in the determination of the level of the duty imposed on their imports’ on the ground that, because the institutions ‘examined the other known factors which could have caused injury to the Union industry and concluded that none of those factors was such as to break the causal link established between the dumped imports … and the injury suffered by the Union industry’, they ‘satisfied the necessary conditions’ to take the protective measures in question. (76)

127. Fourth, for the sake of completeness, I would point out that it does not follow from any of the reports of the Dispute Settlement Body (‘DSB’) of the World Trade Organization (‘WTO’) mentioned by the Council and the Commission (77) that there is, in the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (‘the WTO Anti-Dumping Agreement’) or the WTO Agreement on Subsidies and Countervailing Measures (‘the WTO SCM Agreement’), a requirement to discard injury attributed to factors other than the dumped (subsidised) imports when determining the amount of the anti-dumping (countervailing) duty. Nor has Canadian Solar provided any example to that effect. (78) Consequently, the interpretation of the DSB would support the statement in point 108 above.

128. However, in my view, those reports of the DSB should not be relied on to assess the legality of the regulation at issue.

129. According to case-law, only in two situations may the legality of an EU measure be reviewed in the light of the WTO agreements. The first such situation is where the European Union intended to implement a particular obligation assumed in the context of those agreements and the second is where the EU measure at issue refers explicitly to specific provisions of those agreements. (79) I would point out that, according to case-law, the provisions of the basic regulation must, so far as is possible, be interpreted in a manner consistent with the corresponding provisions of the Anti-Dumping Agreement. (80) However, that may only be the case where the former are the expression of the EU legislature’s intention to implement the latter, or where they explicitly refer to the latter. (81)

130. Article 3(7) and Article 9(4) of the basic regulation do not refer explicitly to the WTO Anti-Dumping Agreement. However, given their similar wording, Article 3(7) of the basic regulation may be regarded as implementing Article 3.5 of the WTO Anti-Dumping Agreement. (82) Nevertheless, Article 9(4) of the basic regulation cannot be regarded as an expression of the EU legislature’s intention to implement Article 9 of the WTO Anti-Dumping Agreement. Indeed, whereas, under the latter provision, the ‘lesser-duty’ rule is only ‘desirable’, it is mandatory under the former provision. (83)

131. I conclude that the institutions are not required, when determining the amount of the anti-dumping duty, to take account of their findings in the non-attribution analysis carried out under Article 3(7) of the basic regulation. They are not required to set that duty at a level to offset only injury attributed to the dumped imports, not injury attributed to other known factors.

132. I will now consider whether the General Court held that, in setting the amount of the anti-dumping duty, the institutions are obliged to take account of their findings in the non-attribution analysis carried out for the determination of the causal link between the injury suffered by the Union industry and the dumped imports.

133. Canadian Solar argues that the General Court erred in law in finding, in paragraphs 205 to 217 of the judgment under appeal, that the effects of other known factors have to be taken into account for the determination of the amount of the anti-dumping duty only when they break the causal link between the injury suffered by the Union industry and the dumped imports. Those other factors should, according to the appellant, be taken into account regardless of whether they broke the causal link.

134. Conversely, the Commission contends that the General Court erred in law in finding, in paragraphs 184 to 195 of the judgment under appeal, that the effects of other known factors have to be taken into account for the determination of the amount of the anti-dumping duty, and it requests the Court to substitute grounds in that regard. The Commission reiterates that argument in the third ground of its cross-appeal and requests the Court to ‘reverse the interpretation of causality in the sense of Article 3 of the basic regulation given by the General Court under the sixth plea in law at first instance’. (84)

135. In paragraphs 178 to 196 of the judgment under appeal, the General Court set out the principles for the determination of the causal link between the injury suffered by the Union industry and the dumped imports, and for the determination of the anti-dumping duty. In paragraphs 197 to 218, the General Court applied those principles to the case at hand. I will examine, first, whether, as the Commission submits, the General Court erred in law in setting out the principles and, second, whether, as Canadian Solar claims, it erred in law in applying those principles.

136. I consider that, although the General Court erred in law in setting out the principles for the determination of the amount of the anti-dumping duty, it did not draw any factual or legal conclusion for the present case from those findings. Consequently, the first part of the fourth ground of appeal should be rejected.

137. In the first place, I would point out that, in paragraphs 182 to 186 of the judgment under appeal, the General Court recalled the case-law cited in point 106 above, stating that the institutions are obliged to verify that injury attributed to other known factors is not taken into account in the determination of injury within the meaning of Article 3(7) of the basic regulation, so that the anti-dumping duty imposed does not go beyond what is necessary to offset the injury caused by the dumped imports. However, in paragraph 185 of the judgment under appeal, the General Court stated that ‘the institutions must take into account the findings [in regard to the non-attribution analysis] when determining the level of any anti-dumping duty’. (85)

138. The General Court went on to recall the ‘lesser duty’ rule laid down in the last sentence of Article 9(4) of the basic regulation. It stated, in paragraph 191 of the judgment under appeal, that ‘[the] institutions must, in [the] context [of Article 9(4) of the basic regulation], take into account the conclusions they reached as regards attribution and non-attribution analyses’. Otherwise, as paragraph 192 of that judgment stresses, the anti-dumping measures imposed would risk going beyond what is necessary in the light of their objective, namely, to remove the injurious effects of dumping. The General Court further stated, in paragraph 193 of the judgment under appeal, that this was consistent with the institutions’ decision-making practice.

139. In my opinion, the General Court erred in law in finding, in paragraphs 185, 191 and 192 of the judgment under appeal, that the institutions are required to take account of their findings in the attribution and non-attribution analyses when setting the amount of the anti-dumping duty. This follows from point 131 above.

140. I would also point out that the General Court’s statement, in paragraph 193 of the judgment under appeal, that the institutions in fact took account of the outcome of the attribution and non-attribution analyses for the determination of the rate of duty in the three cases mentioned in that paragraph, (86) is incorrect. Indeed, in those cases, the recitals referred to by the General Court indicate that, because factors other than the dumped imports had contributed to the injury suffered by the Union industry, the Commission or the Council decided to measure the injury elimination level by reference to price undercutting, not underselling. (87) There is no indication in the decision or the regulations cited in paragraph 193 of the judgment under appeal that injury attributed to those other factors was discarded when determining the amount of the anti-dumping duty. Quite the contrary, since it is stated twice that it is difficult to determine precisely the contribution of those other factors. (88)

141. However, even though in paragraphs 185, 191, 192 and 193 of the judgment under appeal the General Court erred in law, it follows from settled case-law that if the reasoning in a judgment of the General Court discloses an infringement of European Union law but its operative part is well founded on other legal grounds, an appeal must be dismissed. (89) Consequently, I will now examine whether the General Court erred in law in applying, in paragraphs 197 to 218 of the judgment under appeal, the principles for the determination of the amount of the anti-dumping duty set out in paragraphs 185, 191, 192 and 193 of that judgment.

142. In the second place, I would point out that, in paragraph 206 of the judgment under appeal, the General Court stated that, in any event, the institutions, in fact, did not take account of other known factors when determining the injury. In paragraphs 207 to 215, the General Court verified that the institutions had examined the effects of other known factors and upheld their conclusion that those other factors either had a random, at most marginal effect (purchase of the product concerned by EU producers for resale within the European Union as their own, imports from Taiwan, impact of raw material prices), (90) or that they had a limited effect (feed-in tariffs cutbacks), (91) or that they had a certain impact which did not, however, break the causal link (the financial crisis). (92) In paragraphs 216 and 217, the General Court held that the institutions correctly found that the impact of those other factors was insignificant and that, consequently, it did not break the causal link between the injury suffered by the EU industry and the dumped imports. The General Court concluded that, consequently, the institutions’ ‘assessment [conducted] under Article 9(4) of [the basic] regulation’ was also correct.

143. It seems to me that the General Court confined itself to verifying whether the institutions correctly found that the other known factors did not break the causal link between the injury suffered by the Union industry and the dumped imports. Having concluded that the institutions’ findings were correct, the General Court did not proceed to examine whether, in determining the amount of the anti-dumping duty, the institutions should have discarded the effects of those other factors even though they did not break the causal link. Thus, the General Court did not draw any factual or legal conclusion for the present case from its findings in paragraphs 185 and 191 to 193 of the judgment under appeal. I would also point out that, in paragraph 201 of the judgment under appeal, the General Court held that the institutions are not obliged to quantify the effects of other known factors, which would be a prerequisite if account had to be taken of those other factors for the determination of the level of the anti-dumping duty.

144. I conclude that, although the General Court incorrectly held that, in determining the level of the anti-dumping duty, the institutions are obliged to take account of the outcome of the attribution and non-attribution analyses carried out for the purposes of Article 3(6) and (7) of the basic regulation, it correctly ruled that, in the present case, no account had to be taken of the other known factors at issue for the determination of the level of the anti-dumping duty.

145. For the sake of completeness, I would also point out that, as regards the question whether the other known factors at issue broke the causal link between the injury suffered by the Union industry and the dumped imports, Canadian Solar did not allege that the institutions committed a manifest error of assessment. (93)

146. Consequently, the first part of the fourth ground of appeal should be dismissed and the Commission’s request for substitution of grounds should be granted.

147. In the second part of its fourth ground of appeal, Canadian Solar submits that the General Court erred in law in finding, in paragraphs 202 and 205 of the judgment under appeal, that it is for the appellant to demonstrate the quantitative effects of the other known factors.

148. In my opinion, the second part of the fourth ground of appeal should be rejected. It is ineffective, as it follows from point 131 above that the institutions are not required to set the anti-dumping duty at a level to offset only injury attributed to the dumped imports.

149. I conclude that the fourth ground of appeal should be rejected and the appeal dismissed.

150. In accordance with Article 184(2) of the Rules of Procedure, where an appeal is unfounded, the Court is to make a decision as to the costs.

151. Under Article 138(1) of the Rules of Procedure, applicable to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. As Canadian Solar has been unsuccessful, and as the Council has applied for costs, Canadian Solar should be ordered to pay the Council’s costs.

152. Under Article 140(1) of the Rules of Procedure, which is also applicable to appeal proceedings by virtue of Article 184(1) thereof, the Member States and institutions which intervene in the proceedings are to bear their own costs. In the present case, the Commission, which was an intervener at first instance, shall bear its own costs.

– order Canadian Solar Emea GmbH, Canadian Solar Manufacturing (Changshu), Inc., Canadian Solar Manufacturing (Luoyang), Inc., CSI Cells Co. Ltd and CSI Solar Power (China), Inc. to pay the costs incurred by the Council of the European Union;

3 Judgment of 28 February 2017, Canadian Solar Emea and Others v CouncilCanadian Solar Emea and Others v CouncilCanadian Solar Emea and Others v CouncilCanadian Solar Emea and Others v CouncilCanadian Solar Emea and Others v Council, T‑162/14, not published, EU:T:2017:124 (‘the judgment under appeal’).

4 Regulation of 2 December 2013 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of crystalline silicon photovoltaic modules and key components (i.e. cells) originating in or consigned from the ’People’s Republic of China (OJ 2013 L 325, p. 1).

5 Regulation of the European Parliament and of the Council of 12 December 2012 amending Council Regulation (EC) No 1225/2009 on protection against dumped imports from countries not members of the European Community (OJ 2012 L 344, p. 1).

6 Regulation of 30 November 2009 on protection against dumped imports from countries not members of the European Community (OJ 2009 L 343, p. 51).

7 Notice of initiation of an anti-dumping proceeding concerning imports of crystalline silicon photovoltaic modules and key components (i.e. cells and wafers) originating in the People’s Republic of China (OJ 2012 C 269, p. 5).

8 See recital 14 of Commission Regulation (EU) No 513/2013 of 4 June 2013 imposing a provisional anti-dumping duty on imports of crystalline silicon photovoltaic modules and key components (i.e. cells and wafers) originating in or consigned from the People’s Republic of China and amending Regulation (EU) No 182/2013 making these imports originating in or consigned from the People’s Republic of China subject to registration (OJ 2013 L 152, p. 5).

11 Decision of 4 December 2013 confirming the acceptance of an undertaking offered in connection with the anti-dumping and anti-subsidy proceedings concerning imports of crystalline silicon photovoltaic modules and key components (i.e. cells) originating in or consigned from the People’s Republic of China for the period of application of definitive measures (OJ 2013 L 325, p. 214).

12 Regulation of 4 June 2015 withdrawing the acceptance of the undertaking for three exporting producers under Implementing Decision 2013/707’ (OJ 2015 L 139, p. 30).

13 As requested by the Court, I will limit myself to examining the third and fourth grounds of appeal (see point 29 below), which criticise the General Court’s assessment of the fifth and sixth pleas raised before that court. Therefore, I will not summarise the General Court’s assessment of the first four pleas.

14 The admissibility of the second part of the third ground of appeal is not challenged.

15 Judgments of 19 January 2017, Commission v Total and Elf AquitaineCommission v Total and Elf AquitaineCommission v Total and Elf Aquitaine, C‑351/15 P, EU:C:2017:27, paragraphs 30 to 34, and of 9 November 2017, SolarWorld v CouncilSolarWorld v CouncilSolarWorld v Council, C‑204/16 P, EU:C:2017:838, paragraphs 23 and 24.

16 Nor does Canadian Solar make any express reference to Article 277 TFEU in its application before the Court.

17 Judgments of 16 February 2017, Antrax It v EUIPO — Vasco Group (Thermosiphons for radiators for heating)Antrax It v EUIPO — Vasco Group (Thermosiphons for radiators for heating)Antrax It v EUIPO — Vasco Group (Thermosiphons for radiators for heating)Antrax It v EUIPO — Vasco Group (Thermosiphons for radiators for heating), T‑828/14 and T‑829/14, EU:T:2017:87, paragraph 30; of 5 October 2017, Mabrouk v CouncilMabrouk v CouncilMabrouk v Council, T‑175/15, EU:T:2017:694, paragraph 126; and of 14 December 2017, Campo and Others v EEASCampo and Others v EEASCampo and Others v EEAS, T‑577/16, not published, EU:T:2017:909, paragraph 26.

18 Judgments of 29 November 2007, Stadtwerke Schwäbisch Hall and Others v CommissionStadtwerke Schwäbisch Hall and Others v CommissionStadtwerke Schwäbisch Hall and Others v CommissionStadtwerke Schwäbisch Hall and Others v CommissionStadtwerke Schwäbisch Hall and Others v CommissionStadtwerke Schwäbisch Hall and Others v Commission, C‑176/06 P, not published, EU:C:2007:730, paragraph 17; of 16 June 2016, Evonik Degussa and AlzChem v CommissionEvonik Degussa and AlzChem v CommissionEvonik Degussa and AlzChem v CommissionEvonik Degussa and AlzChem v CommissionEvonik Degussa and AlzChem v Commission, C‑155/14 P, EU:C:2016:446, paragraph 55; and of 28 February 2018, Commission v Xinyi PV Products (Anhui) HoldingsCommission v Xinyi PV Products (Anhui) HoldingsCommission v Xinyi PV Products (Anhui) Holdings, C‑301/16 P, EU:C:2018:132, paragraph 90.

19 A producer from a non-market economy country may also be granted individual treatment and have an individual anti-dumping duty applied to imports from it, pursuant to the second subparagraph of Article 9(5) of the basic regulation.

20 According to the first sentence of Article 9(6) of the basic regulation, producers which made themselves known in accordance with Article 17 thereof but were not included in the sample cannot have imposed on them an anti-dumping duty in excess of the weighted average dumping margin established for sampled producers. Non-sampled producers may, however, request the calculation of individual anti-dumping margins pursuant to Article 17(3) of that regulation, in which case individual anti-dumping duties are applied to imports from them in accordance with the last sentence of Article 9(6) thereof.

22 See Graafsma, F., and Vermulst, E., ‘The EU’s “Anti-Brosmann Amendment”: Back to the Future — Part II’, Global Trade and Customs Journal, Volume 8 (2013), Issue 6, p. 150.

23 See point 1 of Heading 24 in the Annex to the Commission’s proposal, of 7 March 2011, for a Regulation of the European Parliament and of the Council amending certain regulations relating to the common commercial policy as regards the procedures for the adoption of certain measures (COM(2011) 82 final).

24 Judgment of 2 February 2012, Brosmann Footwear (HK) and Others v CouncilBrosmann Footwear (HK) and Others v CouncilBrosmann Footwear (HK) and Others v CouncilBrosmann Footwear (HK) and Others v Council, C‑249/10 P, EU:C:2012:53.

25 Judgment of 2 February 2012, Brosmann Footwear (HK) and Others v CouncilBrosmann Footwear (HK) and Others v CouncilBrosmann Footwear (HK) and Others v CouncilBrosmann Footwear (HK) and Others v Council, C‑249/10 P, EU:C:2012:53, paragraphs 36 and 39.

29 See recital 18 of the basic regulation, which states that ‘ … where measures are to be imposed, it is necessary to provide for the termination of investigations …’, and Article 8(5) of that regulation, which provides that ‘where undertakings are, after consultation, accepted and where there is no objection raised within the Advisory Committee, the investigation shall be terminated’ (emphasis added).

30 Article 9(2) of the basic regulation states that ‘where, after consultation, protective measures are unnecessary and there is no objection raised within the Advisory Committee, the investigation or proceeding shall be terminated’ (emphasis added).

32 Judgment of 22 December 2010, Bayerischer BrauerbundBayerischer BrauerbundBayerischer Brauerbund, C‑120/08, EU:C:2010:798, paragraph 40.

33 Judgments of 10 July 1986, Licata v ESCLicata v ESCLicata v ESC, 270/84, EU:C:1986:304, paragraph 31, and of 6 July 2010, Monsanto Technology, C‑428/08, EU:C:2010:402, paragraph 66,

34 Judgments of 29 January 2002, Pokrzeptowicz-MeyerPokrzeptowicz-Meyer, C‑162/00, EU:C:2002:57, paragraphs 49 and 50; of 7 November 2013, Gemeinde Altrip and OthersGemeinde Altrip and OthersGemeinde Altrip and OthersGemeinde Altrip and Others, C‑72/12, EU:C:2013:712, paragraph 22; and of 26 March 2015, Commission v Moravia Gas StorageCommission v Moravia Gas StorageCommission v Moravia Gas Storage, C‑596/13 P, EU:C:2015:203, paragraph 32.

35 Judgments of 14 February 2008, Varec, C‑450/06, EU:C:2008:91, paragraph 27; of 8 July 2010, Commission v ItalyCommission v ItalyCommission v Italy, C‑334/08, EU:C:2010:414, paragraph 60; of 29 March 2011, ThyssenKrupp Nirosta v CommissionThyssenKrupp Nirosta v CommissionThyssenKrupp Nirosta v CommissionThyssenKrupp Nirosta v Commission, C‑352/09 P, EU:C:2011:191, paragraph 88; of 11 December 2012, Commission v SpainCommission v SpainCommission v Spain, C‑610/10, EU:C:2012:781, paragraph 45; and of 21 September 2017, Feralpi v CommissionFeralpi v CommissionFeralpi v Commission, C‑85/15 P, EU:C:2017:709, paragraph 27.

36 Judgments of 29 January 2002, Pokrzeptowicz-MeyerPokrzeptowicz-Meyer, C‑162/00, EU:C:2002:57, paragraph 49; of 11 December 2008, Commission v Freistaat SachsenCommission v Freistaat SachsenCommission v Freistaat SachsenCommission v Freistaat Sachsen, C‑334/07 P, EU:C:2008:709, paragraph 44; of 16 December 2010, Stichting Natuur en Milieu and OthersStichting Natuur en Milieu and OthersStichting Natuur en Milieu and OthersStichting Natuur en Milieu and OthersStichting Natuur en Milieu and OthersStichting Natuur en Milieu and Others, C‑266/09, EU:C:2010:779, paragraph 32; of 14 February 2012, Toshiba Corporation and Others, C‑17/10, EU:C:2012:72, paragraph 51; of 26 March 2015, Commission v Moravia Gas StorageCommission v Moravia Gas StorageCommission v Moravia Gas Storage, C‑596/13 P, EU:C:2015:203, paragraph 33; and of 6 October 2015, Commission v AndersenCommission v AndersenCommission v Andersen, C‑303/13 P, EU:C:2015:647, paragraph 50.

38 Directive of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114).

39 Judgment of 14 February 2008, Varec, C‑450/06, EU:C:2008:91, paragraph 29. See also Opinion of Advocate General Sharpston in Varec, C‑450/06, EU:C:2007:643, point 31.

41 Judgment of 29 January 2002, Pokrzeptowicz-MeyerPokrzeptowicz-Meyer, C‑162/00, EU:C:2002:57, paragraph 52.

42 Judgment of 26 March 2015, Commission v Moravia Gas StorageCommission v Moravia Gas StorageCommission v Moravia Gas Storage, C‑596/13 P, EU:C:2015:203.

43 Directive of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in natural gas and repealing Directive 98/30/EC (OJ 2003 L 176, p. 57).

44 Directive 2009/73/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in natural gas and repealing Directive 2003/55 (OJ 2009 L 211, p. 94).

45 Judgment of 26 March 2015, Commission v Moravia Gas StorageCommission v Moravia Gas StorageCommission v Moravia Gas Storage, C‑596/13 P, EU:C:2015:203, paragraphs 43 to 45. See also Opinion of Advocate General Kokott in Commission v Moravia Gas StorageCommission v Moravia Gas StorageCommission v Moravia Gas Storage, C‑596/13 P, EU:C:2014:2438, point 70.

46 See point 69 above and judgment of 16 December 2010, Stichting Natuur en Milieu and OthersStichting Natuur en Milieu and OthersStichting Natuur en Milieu and OthersStichting Natuur en Milieu and OthersStichting Natuur en Milieu and OthersStichting Natuur en Milieu and Others, C‑266/09, EU:C:2010:779, paragraph 34.

47 Judgment of 4 February 2016, C & J Clark International, C‑659/13 and C‑34/14, EU:C:2016:74, paragraphs 140 and 141.

48 Judgments of 1 October 2009, Foshan Shunde Yongjian Housewares & Hardware v CouncilFoshan Shunde Yongjian Housewares & Hardware v CouncilFoshan Shunde Yongjian Housewares & Hardware v CouncilFoshan Shunde Yongjian Housewares & Hardware v CouncilFoshan Shunde Yongjian Housewares & Hardware v CouncilFoshan Shunde Yongjian Housewares & Hardware v CouncilFoshan Shunde Yongjian Housewares & Hardware v Council, C‑141/08 P, EU:C:2009:598, paragraphs 110 to 112; of 8 November 2011, Zhejiang Harmonic Hardware Products v CouncilZhejiang Harmonic Hardware Products v CouncilZhejiang Harmonic Hardware Products v Council, T‑274/07, not published, EU:T:2011:639, paragraph 39; and of 11 September 2014, Gold East Paper and Gold Huasheng Paper v CouncilGold East Paper and Gold Huasheng Paper v CouncilGold East Paper and Gold Huasheng Paper v CouncilGold East Paper and Gold Huasheng Paper v CouncilGold East Paper and Gold Huasheng Paper v Council, T‑443/11, EU:T:2014:774, paragraph 74.

50 In my view, Canadian Solar challenges the immediate application not only of the extension of the time limit by which the MET determination must be made, provided for by Article 1(1)(a) of Regulation No 1168/2012, but also of Article 1(1)(b) of that regulation, which relieves the institutions of the obligation to make a determination on MET claims submitted by non-sampled producers. Indeed, Canadian Solar states in its appeal that ‘the Commission’s obligation to make an MET determination is a substantive rule and not a procedural rule’ and that obligation cannot, as a substantive rule, apply to situations existing before its entry into force. Canadian Solar refers expressly, in that respect, to subparagraph (d) of Article 2(7) of the basic regulation (see point 6 above). I would also point out that, in its application before the General Court, Canadian Solar stated that the institutions infringed Article 2(7)(c) of the basic regulation ‘in failing to (i) examine [Canadian Solar]’s MET reques[t] and (ii) make the MET determination within three months of the initiation of the investigation’ (emphasis added).

52 See judgment of 22 December 2010, Bayerischer BrauerbundBayerischer BrauerbundBayerischer Brauerbund, C‑120/08, EU:C:2010:798, paragraph 40, and the case-law cited in points 65 and 66 above. As noted by Advocate General Kokott, the key issue here is less one of retroactive effect than one of the immediate application of new rules (Opinion of Advocate General Kokott in Commission v Moravia Gas StorageCommission v Moravia Gas StorageCommission v Moravia Gas Storage, C‑596/13 P, EU:C:2014:2438, points 36 and 43).

53 Judgment of 29 January 2002, Pokrzeptowicz-MeyerPokrzeptowicz-Meyer, C‑162/00, EU:C:2002:57, paragraph 55.

54 The Commission reiterates that argument in the third ground of its cross-appeal and it requests the Court to ‘reverse the interpretation of causality in the sense of Article 3 of the basic regulation given by the General Court under the sixth plea in law at first instance’.

55 Judgment of 1 October 2014, Council v AluminaCouncil v AluminaCouncil v Alumina, C‑393/13 P, EU:C:2014:2245, paragraphs 15 to 19.

56 Judgments of 6 September 2013, Godrej Industries and VVF v CouncilGodrej Industries and VVF v CouncilGodrej Industries and VVF v Council, T‑6/12, EU:T:2013:408, paragraph 62; of 18 November 2014, Photo USA Electronic Graphic v CouncilPhoto USA Electronic Graphic v CouncilPhoto USA Electronic Graphic v Council, T‑394/13, not published, EU:T:2014:964, paragraphs 65 and 66; and of 11 July 2017, Viraj Profiles v CouncilViraj Profiles v CouncilViraj Profiles v CouncilViraj Profiles v Council, T‑67/14, not published, EU:T:2017:481, paragraph 40.

57 See recitals 301 to 306 of the regulation at issue and recitals 211 and 212 of Regulation No 513/2013.

58 Judgments of 25 October 2011, CHEMK and KF v CouncilCHEMK and KF v CouncilCHEMK and KF v Council, T‑190/08, EU:T:2011:618, paragraph 172, and of 11 September 2014, Gold East Paper and Gold Huasheng Paper v CouncilGold East Paper and Gold Huasheng Paper v CouncilGold East Paper and Gold Huasheng Paper v CouncilGold East Paper and Gold Huasheng Paper v CouncilGold East Paper and Gold Huasheng Paper v Council, T‑443/11, EU:T:2014:774, paragraph 311. See also the case-law cited in footnote 56 above.

59 Judgments of 3 September 2009, Moser Baer India v CouncilMoser Baer India v CouncilMoser Baer India v Council, C‑535/06 P, EU:C:2009:498, paragraphs 88, 90 and 91; of 19 December 2013, Transnational Company ‘Kazchrome’ and ENRC Marketing v CouncilTransnational Company ‘Kazchrome’ and ENRC Marketing v CouncilTransnational Company ‘Kazchrome’ and ENRC Marketing v CouncilTransnational Company ‘Kazchrome’ and ENRC Marketing v CouncilTransnational Company ‘Kazchrome’ and ENRC Marketing v Council, C‑10/12 P, not published, EU:C:2013:865, paragraphs 24 and 25; of 16 April 2015, TMK Europe, C‑143/14, EU:C:2015:236, paragraphs 36 and 37; of 4 February 2016, C & J Clark International, C‑659/13 and C‑34/14, EU:C:2016:74, paragraph 169; of 12 December 2014, Crown Equipment (Suzhou) and Crown Gabelstapler v CouncilCrown Equipment (Suzhou) and Crown Gabelstapler v CouncilCrown Equipment (Suzhou) and Crown Gabelstapler v CouncilCrown Equipment (Suzhou) and Crown Gabelstapler v CouncilCrown Equipment (Suzhou) and Crown Gabelstapler v Council, T‑643/11, EU:T:2014:1076, paragraph 107; of 11 July 2017, Viraj Profiles v CouncilViraj Profiles v CouncilViraj Profiles v CouncilViraj Profiles v Council, T‑67/14, not published, EU:T:2017:481, paragraphs 40 and 41; and of 23 April 2018, Shanxi Taigang Stainless Steel v CommissionShanxi Taigang Stainless Steel v CommissionShanxi Taigang Stainless Steel v CommissionShanxi Taigang Stainless Steel v CommissionShanxi Taigang Stainless Steel v Commission, T‑675/15, not published, EU:T:2018:209, paragraph 109.

62 Indeed, according to the case-law cited in point 106 above, the causal link is established if, despite other factors, the injury attributable to the dumped imports is material.

63 The first sentence of Article 9(4) of the basic regulation states that a definitive anti-dumping duty may be imposed ‘where the facts as finally established show that there is dumping and injury caused thereby’ (emphasis added).

64 Judgments of 3 September 2009, Moser Baer India v CouncilMoser Baer India v CouncilMoser Baer India v Council, C‑535/06 P, EU:C:2009:498, paragraphs 88, 90 and 91; of 19 December 2013, Transnational Company ‘Kazchrome’ and ENRC Marketing v CouncilTransnational Company ‘Kazchrome’ and ENRC Marketing v CouncilTransnational Company ‘Kazchrome’ and ENRC Marketing v CouncilTransnational Company ‘Kazchrome’ and ENRC Marketing v CouncilTransnational Company ‘Kazchrome’ and ENRC Marketing v CouncilTransnational Company ‘Kazchrome’ and ENRC Marketing v Council, C‑10/12 P, not published, EU:C:2013:865, paragraphs 24 and 25; of 16 April 2015, TMK Europe, C‑143/14, EU:C:2015:236, paragraphs 36 and 37; and of 11 July 2017, Viraj Profiles v CouncilViraj Profiles v CouncilViraj Profiles v CouncilViraj Profiles v CouncilViraj Profiles v CouncilViraj Profiles v Council, T‑67/14, not published, EU:T:2017:481, paragraphs 62 and 63.

65 Judgments of 19 December 2013, Transnational Company ‘Kazchrome’ and ENRC Marketing v CouncilTransnational Company ‘Kazchrome’ and ENRC Marketing v CouncilTransnational Company ‘Kazchrome’ and ENRC Marketing v CouncilTransnational Company ‘Kazchrome’ and ENRC Marketing v CouncilTransnational Company ‘Kazchrome’ and ENRC Marketing v CouncilTransnational Company ‘Kazchrome’ and ENRC Marketing v Council, C‑10/12 P, not published, EU:C:2013:865, paragraph 39, and of 11 July 2017, Viraj Profiles v CouncilViraj Profiles v CouncilViraj Profiles v CouncilViraj Profiles v Council, T‑67/14, not published, EU:T:2017:481, paragraph 62.

66 Opinion of Advocate General Trstenjak in Moser Baer India v CouncilMoser Baer India v CouncilMoser Baer India v Council, C‑535/06 P, EU:C:2008:532.

67 It is irrelevant that that case pertains to the imposition of countervailing duties rather than anti-dumping duties. Indeed, Article 8(7) of Council Regulation (EC) No 2026/97 of 6 October 1997 on protection against subsidised imports from countries not members of the European Community (OJ 1997 L 288, p. 1), which was applicable in Moser Baer, is identical to Article 3(7) of the basic regulation. As regards Article 15(1) of Regulation No 2026/97, see footnote 69 below.

68 Opinion of Advocate General Trstenjak in Moser Baer India v CouncilMoser Baer India v CouncilMoser Baer India v Council, C‑535/06 P, EU:C:2008:532, point 171 (emphasis added).

69 Reference is made here to the last sentence of Article 9(4) of the basic regulation even though Regulation No 2026/97 was applicable in Moser Baer. This is because the present case pertains to anti-dumping measures, not countervailing duties. The last sentence of Article 15(1) of Regulation No 2026/97 reads as follows: ‘The amount of the countervailing duty shall not exceed the amount of countervailable subsidies from which the exporters have been found to benefit, established pursuant to this Regulation, but should be less than the total amount of countervailable subsidies, if such lesser duty were to be adequate to remove the injury to the Community industry.’

70 Opinion of Advocate General Trstenjak in Moser Baer India v CouncilMoser Baer India v CouncilMoser Baer India v Council, C‑535/06 P, EU:C:2008:532, point 171.

71 Opinion of Advocate General Trstenjak in Moser Baer India v CouncilMoser Baer India v CouncilMoser Baer India v Council, C‑535/06 P, EU:C:2008:532, point 176.

72 Judgment of 3 September 2009, Moser Baer India v CouncilMoser Baer India v CouncilMoser Baer India v Council, C‑535/06 P, EU:C:2009:498, paragraphs 92 and 93.

74 Judgment of 23 May 1985, Allied Corporation and Others v CouncilAllied Corporation and Others v CouncilAllied Corporation and Others v Council, 53/83, EU:C:1985:227.

75 Judgment of 23 May 1985, Allied Corporation and Others v CouncilAllied Corporation and Others v CouncilAllied Corporation and Others v Council, 53/83, EU:C:1985:227, paragraph 19.

76 Judgment of 11 September 2014, Gold East Paper and Gold Huasheng Paper v CouncilGold East Paper and Gold Huasheng Paper v CouncilGold East Paper and Gold Huasheng Paper v CouncilGold East Paper and Gold Huasheng Paper v CouncilGold East Paper and Gold Huasheng Paper v Council, T‑443/11, EU:T:2014:774, paragraphs 313 and 318 (emphasis added). At paragraph 318 of that judgment, the Court found as follows: ‘the EU institutions examined the other known factors which could have caused injury to the Union industry and concluded that none of those factors was such as to break the causal link established between the dumped imports from China and the injury suffered by the Union industry … Thus, the EU institutions satisfied the necessary conditions to take the measures in question’ (emphasis added).

77 The Council and the Commission made reference to DSB reports relating to: (i) case ‘European Communities — Anti-Dumping Duties on Malleable Cast Iron Tube or Pipe Fittings from Brazil (WT/DS219/AB/R)’, paragraphs 180 to 195; (ii) case ‘European Union — Anti-dumping Measures on Certain Footwear from China (WT/DS405/R)’, paragraphs 7.487 to 7.489; and (iii) case ‘European Union — Countervailing Measures on Certain Polyethylene Terephthalate from Pakistan (WT/DS4886/R)’, paragraphs 7.133 to 7.140. It seems to me that the DSB’s findings in those paragraphs pertain to the causal link between the dumping (or the subsidies) and injury within the meaning of Article 3.5 of the WTO Anti-Dumping Agreement (or Article 15.5 of the WTO SCM Agreement), not to the determination of the amount of the anti-dumping duty (or countervailing duty).

78 In its response to the cross-appeal, Canadian Solar refers to the DSB report relating to the case ‘United States — Definitive Safeguard Measures on Imports of Circular Welded Carbon Quality Line Pipe from Korea (WT/DS202/AB/R)’. At paragraph 252 of that report, the DSB found that ‘only an appropriate share in the overall injury [must be] attributed to increased imports’, and this ‘informs the permissible extent to which the safeguard measure may be applied’. I stress, however, that this case pertains to safeguard measures, not anti-dumping measures, and that there is no equivalent in the basic regulation to Article 5.1 of the WTO Agreement on Safeguards, which provides that ‘a Member shall apply safeguard measures only to the extent necessary to prevent or remedy serious injury and to facilitate adjustment’. As for Canadian Solar’s reliance on paragraph 257 of that report, I reiterate that Canadian Solar failed to provide an example of a DSB report relating to anti-dumping measures with a similar finding.

79 Judgments of 16 July 2015, Commission v Rusal ArmenalCommission v Rusal ArmenalCommission v Rusal ArmenalCommission v Rusal ArmenalCommission v Rusal Armenal, C‑21/14 P, EU:C:2015:494, paragraphs 40 and 41, and of 4 February 2016, C & J Clark International, C‑659/13 and C‑34/14, EU:C:2016:74, paragraph 87.

80 Judgment of 19 December 2013, Transnational Company ‘Kazchrome’ and ENRC Marketing v CouncilTransnational Company ‘Kazchrome’ and ENRC Marketing v CouncilTransnational Company ‘Kazchrome’ and ENRC Marketing v CouncilTransnational Company ‘Kazchrome’ and ENRC Marketing v CouncilTransnational Company ‘Kazchrome’ and ENRC Marketing v Council, C‑10/12 P, not published, EU:C:2013:865, paragraph 54.

81 See, in that respect, judgment of 27 September 2007, Ikea Wholesale, C‑351/04, EU:C:2007:547, paragraph 35.

82 Article 3.5 of the WTO Anti-Dumping Agreement reads as follows: ‘... the authorities shall also examine any known factors other than the dumped imports which at the same time are injuring the domestic industry, and the injuries caused by these other factors must not be attributed to the dumped imports. Factors which may be relevant in this respect include, inter alia, the volume and prices of imports not sold at dumping prices, contraction in demand or changes in the patterns of consumption, trade restrictive practices of and competition between the foreign and domestic producers, developments in technology and the export performance and productivity of the domestic industry.’ See also judgment of 19 December 2013, Transnational Company ‘Kazchrome’ and ENRC Marketing v CouncilTransnational Company ‘Kazchrome’ and ENRC Marketing v CouncilTransnational Company ‘Kazchrome’ and ENRC Marketing v CouncilTransnational Company ‘Kazchrome’ and ENRC Marketing v CouncilTransnational Company ‘Kazchrome’ and ENRC Marketing v Council (C‑10/12 P, not published, EU:C:2013:865, paragraph 54).

83 See Rovegno, L., and Vandenbussche, H., ‘Anti-dumping practices in the EU: a comparative analysis of rules and application in the contest of WTO’, in Gaines, S., Egelund Olsen, B., and Engsig Sørensen, K. (eds.), Liberalising Trade in the EU and the WTO: a legal comparison, Cambridge University Press, 2012, p. 440. Rovegno and Vandenbussche note that ‘in contrast with other anti-dumping users such as the USA and Canada, EU anti-dumping duties do not necessarily have to match the entire dumping margin if a lower duty is sufficient to eliminate the material injury to the domestic industry. … [Between 1989 and 2009], in almost every year, average anti-dumping duty levels in the EU [were] much lower than in the USA. Compared to Canada, they [were] around the same levels at the beginning of the period considered, but [were] also lower towards the end’ (p. 445).

84 The question whether the Commission’s request for a substitution of grounds is admissible is not addressed in this Opinion because it should, in my view, be addressed together with the request for a substitution of grounds raised in the cross-appeal, and this Opinion is limited to examining two grounds of appeal (see point 29 above). However, for the sake of completeness, I would point out that the Commission’s request for a substitution of grounds raised in its response to the appeal is, in my opinion, admissible. This is because it may be regarded as a defence against the appellant’s fourth ground of appeal (judgment of 9 November 2017, TV2/Danmark v CommissionTV2/Danmark v CommissionTV2/Danmark v CommissionTV2/Danmark v Commission, C‑649/15 P, EU:C:2017:835, paragraph 61).

86 Commission Decision 91/392/EEC of 21 June 1991 accepting undertakings given in connection with the anti-dumping proceeding concerning imports of certain asbestos cement pipes originating in Turkey, and terminating the investigation (OJ 1991 L 209, p. 37); Commission Regulation (EC) No 2376/94 of 27 September 1994 imposing a provisional anti-dumping duty on imports of colour television receivers originating in Malaysia, the People’s Republic of China, the Republic of Korea, Singapore and Thailand (OJ 1994 L 255, p. 50); Council Regulation (EC) No 710/95 of 27 March 1995 imposing a definitive anti-dumping duty on imports of colour television receivers originating in Malaysia, the People’s Republic of China, the Republic of Korea, Singapore and Thailand and collecting definitively the provisional duty imposed (OJ 1995 L 73, p. 3); and Council Regulation (EC) No 1331/2007 of 13 November 2007 imposing a definitive anti-dumping duty on imports of dicyandiamide originating in the People’s Republic of China (OJ 2007 L 296, p. 1).

87 See recitals 28 and 29 of Decision 91/392; recital 141 of Regulation No 2376/94; recital 49 of Regulation No 710/95; and recitals 128 to 132 of Regulation No 1331/2007.

88 According to recital 28 of Decision 91/392, ‘the interpretation — and above all the quantification — of [the] effect of [the dumped imports] is imprecise, owing to the presence of other factors operating at the same time’. Recital 128(1) of Regulation No 1331/2007 states that ‘it is impossible to precisely determine the contribution of [the dumped imports and the other known factors]’.

89 Judgment of 29 March 2011, ThyssenKrupp Nirosta v CommissionThyssenKrupp Nirosta v CommissionThyssenKrupp Nirosta v CommissionThyssenKrupp Nirosta v Commission, C‑352/09 P, EU:C:2011:191, paragraph 136.

93 Judgments of 19 December 2013, Transnational Company ‘Kazchrome’ and ENRC Marketing v CouncilTransnational Company ‘Kazchrome’ and ENRC Marketing v CouncilTransnational Company ‘Kazchrome’ and ENRC Marketing v CouncilTransnational Company ‘Kazchrome’ and ENRC Marketing v CouncilTransnational Company ‘Kazchrome’ and ENRC Marketing v CouncilTransnational Company ‘Kazchrome’ and ENRC Marketing v Council, C‑10/12 P, not published, EU:C:2013:865, paragraph 22; of 16 April 2015, TMK Europe, C‑143/14, EU:C:2015:236, paragraph 34; of 10 September 2015, Bricmate, C‑569/13, EU:C:2015:572, paragraph 46; and of 2 June 2016, Photo USA Electronic Graphic v CouncilPhoto USA Electronic Graphic v CouncilPhoto USA Electronic Graphic v Council, C‑31/15 P, not published, EU:C:2016:390, paragraph 63.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Canadian Solar Emea and Others v Council (Dumping - Imports of crystalline silicon photovoltaic modules - China - Opinion) [2018] EUECJ C-236/17P_O (03 October 2018) URL: http://www.bailii.org/eu/cases/EUECJ/2018/C23617P_O.html Cite as: EU:C:2018:793, ECLI:EU:C:2018:793, [2018] EUECJ C-236/17P_O

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