Eurobolt (Right to an effective remedy - Scope of the national judicial review of a Union measure - Opinion) [2019] EUECJ C-644/17

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(Request for a preliminary ruling from the Hoge Raad der Nederlanden (Supreme Court of the Netherlands))

(Request for a preliminary ruling — Article 267 TFEU — Invalidity — Article 47 of the Charter of Fundamental Rights of the European Union — Right to an effective remedy — Scope of the national judicial review of a Union measure — Regulation (EC) No 1225/2009 — Article 15(2) — Regulation (EU) No 723/2011 — Circumvention of anti-dumping measures — Protection against dumping — Consultation with Member States — Notion of ‘relevant information’ — Infringement of time limit)

1. The present request for a preliminary ruling concerns the interpretation of Article 15(2) of Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (2) (‘the basic regulation’), Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’), and the validity of Council Implementing Regulation (EU) No 723/2011 of 18 July 2011 extending the definitive anti-dumping duty imposed by Regulation (EC) No 91/2009 on imports of certain iron or steel fasteners originating in the People’s Republic of China to imports of certain iron or steel fasteners consigned from Malaysia, whether declared as originating in Malaysia or not. (3) In particular, the critical question which arises from this reference is whether non-observance of certain procedural safeguards provided for by Article 15(2) of the basic regulation can lead to the annulment of the implementing regulation.

2. The request was made in proceedings between Eurobolt BV and the Staatssecretaris van Financiën (Secretary of State for Finance, Netherlands) concerning the imposition of anti-dumping duties for the import of certain iron or steel fasteners into the European Union.

3. The adoption of anti-dumping measures was, at the material time, ruled by the basic regulation.

4. First, it is convenient to draw attention to the provisions of recital 12 of the basic regulation:

‘It is necessary to lay down the manner in which interested parties should be given notice of the information which the authorities require, and should have ample opportunity to present all relevant evidence and to defend their interests. It is also desirable to set out clearly the rules and procedures to be followed during the investigation, in particular the rules whereby interested parties are to make themselves known, present their views and submit information within specified time limits, if such views and information are to be taken into account. It is also appropriate to set out the conditions under which an interested party may have access to, and comment on, information presented by other interested parties. There should also be cooperation between the Member States and the Commission in the collection of information.’

5. It is also useful to recall that recital 25 of the basic regulation provides that:

‘Information provided to Member States in the Advisory Committee is often of a highly technical nature and involves an elaborate economic and legal analysis. In order to provide Member States with sufficient time to consider this information, it should be sent at an appropriate time before the date of a meeting set by the Chairman of the Advisory Committee.’

‘1. Anti-dumping duties imposed pursuant to this Regulation may be extended to imports from third countries, of the like product, whether slightly modified or not, or to imports of the slightly modified like product from the country subject to measures, or parts thereof, when circumvention of the measures in force is taking place. Anti-dumping duties not exceeding the residual anti-dumping duty imposed in accordance with Article 9(5) may be extended to imports from companies benefiting from individual duties in the countries subject to measures when circumvention of the measures in force is taking place. Circumvention shall be defined as a change in the pattern of trade between third countries and the Community or between individual companies in the country subject to measures and the Community, which stems from a practice, process or work for which there is insufficient due cause or economic justification other than the imposition of the duty, and where there is evidence of injury or that the remedial effects of the duty are being undermined in terms of the prices and/or quantities of the like product, and where there is evidence of dumping in relation to the normal values previously established for the like product, if necessary in accordance with the provisions of Article 2.

3. Investigations shall be initiated pursuant to this Article on the initiative of the Commission or at the request of a Member State or any interested party on the basis of sufficient evidence regarding the factors set out in paragraph 1. Initiations shall be made, after consultation of the Advisory Committee, by Commission Regulation which may also instruct the customs authorities to make imports subject to registration in accordance with Article 14(5) or to request guarantees. Investigations shall be carried out by the Commission, which may be assisted by customs authorities and shall be concluded within nine months. When the facts as finally ascertained justify the extension of measures, this shall be done 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. The extension shall take effect from the date on which registration was imposed pursuant to Article 14(5) or on which guarantees were requested. The relevant procedural provisions of this Regulation with regard to initiations and the conduct of investigations shall apply pursuant to this Article.

‘1. Any consultations provided for in this Regulation shall take place within an Advisory Committee, which shall consist of representatives of each Member State, with a representative of the Commission as chairman. Consultations shall be held immediately at the request of a Member State or on the initiative of the Commission and in any event within a period which allows the time limits set by this Regulation to be adhered to.

2. The Committee shall meet when convened by its chairman. He shall provide the Member States, as promptly as possible, but no later than 10 working days before the meeting, with all relevant information.

3. Where necessary, consultation may be in writing only; in that event, the Commission shall notify the Member States and shall specify a period within which they shall be entitled to express their opinions or to request an oral consultation which the chairman shall arrange, provided that such oral consultation can be held within a period which allows the time limits set by this Regulation to be adhered to.

(a) the existence of dumping and the methods of establishing the dumping margin;

(d) the measures which, in the circumstances, are appropriate to prevent or remedy the injury caused by dumping and the ways and means of putting such measures into effect.’

8. On 26 January 2009, the Council adopted Regulation (EC) No 91/2009 imposing a definitive anti-dumping duty on imports of certain iron or steel fasteners originating in the People’s Republic of China. (4)

9. By Regulation (EU) No 966/2010, the Commission, based on Article 13(3) of the basic regulation, decided to initiate an investigation into the possible circumvention of anti-dumping measures imposed by Regulation No 91/2009 by means of transhipment in Malaysia. (5)

10. In accordance with Article 2 of Regulation No 966/2010, the imports into the European Union of certain iron or steel fasteners consigned from Malaysia had to be registered by the customs authorities.

11. By Implementing Regulation No 723/2011, the definitive anti-dumping duty imposed on certain iron or steel fasteners from China was extended to certain iron or steel fasteners consigned from Malaysia, whether declared as originating in Malaysia or not.

12. Eurobolt is a company with its registered office in ’s-Heerenberg (Netherlands). It trades in steel and iron fasteners, which it purchases from Asia with a view to selling them in the EU.

13. After definitive anti-dumping duties were imposed on certain iron or steel fasteners classified under CN code 7318 originating in the People’s Republic of China by Regulation No 91/2009, the applicant subsequently purchased similar fasteners from two suppliers established in Malaysia, namely, TZ Fasteners (‘TZ’) and HBS Fasteners Manufacturing (‘HBS’).

14. In the period 29 October 2010 to 4 August 2011, the applicant made 32 declarations in the Netherlands for the release of steel fasteners for free circulation, purchased from HBS and TZ. Malaysia was cited as the country of origin. In accordance with Regulation No 966/2010, the customs authorities registered those fasteners and released them for free circulation without charging anti-dumping duties.

15. After the publication of this regulation, the Commission decided to open an investigation. This was formally communicated to Chinese and Malaysian authorities, along with known importers from those countries — one of which was Eurobolt — and relevant industries throughout the EU.

16. HBS and TZ made themselves known to the Commission regarding that investigation and they submitted their responses to the anti-dumping questionnaire. Eurobolt also made itself known as an interested party.

17. By letter of 26 May 2011, the Commission sent Eurobolt its preliminary findings of the investigation. On 13 June 2011 the applicant responded to that letter in writing within the time limit it had been set. The Advisory Committee met on 15 June 2011.

18. By Implementing Regulation No 723/2011, the definitive anti-dumping duty imposed on certain iron or steel fasteners from China was extended to certain iron or steel fasteners consigned from Malaysia, whether declared as originating in Malaysia or not. The fasteners purchased by the applicant were accordingly not exempted from duty.

19. After the entry into force of that regulation, the Inspector imposed post-importation checks on the applicant. A levy of EUR 587 802.20 in anti-dumping duties was imposed.

20. After Nijmegen’s customs office rejected Eurobolt’s complaint, the applicant brought an action for annulment before the national courts. The action was rejected by both the Rechtbank Noord-Holland (District Court of North Holland, Netherlands) and the Gerechtshof Amsterdam (Court of Appeal, Amsterdam, Netherlands). Eurobolt then brought an appeal in cassation before the Hoge Raad der Nederlanden (Supreme Court of the Netherlands). It was that court which made the present reference.

21. In that appeal Eurobolt first pleaded the invalidity of Regulation No 723/2011 under the criteria provided by Article 13 of the basic regulation. Second, Eurobolt argued that its rights of defence were infringed by the Commission during the investigation because the Advisory Committee did not receive all the relevant information sent by Eurobolt to the Commission at least 10 working days before its meeting, contrary to Article 15(2) of the basic regulation.

22. In that context, the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) has doubts as to the scope of the task of the national courts in reviewing acts of the Union’s institutions, particularly by reference to Article 47 of the Charter. The other question which arises is whether the applicant’s response to the findings of the investigations should be considered as ‘relevant information’ as set down in Article 15(2) of the basic regulation and, if so, what consequences must be attached to the allegation that, contrary to prescribed provisions, the Advisory Committee did not receive all the documents from the Commission at least 10 working days before its meeting.

23. In those circumstances, the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

‘1(a) Must Article 47 of the Charter of Fundamental Rights of the European Union, read in conjunction with Article 4(3) TEU, be interpreted as meaning that an interested party may challenge the legality of a decision of an institution of the Union which must be implemented by national authorities, by pleading infringement of essential procedural requirements, infringement of the Treaties or misuse of powers?

1(b) Must Article 47 of the Charter of Fundamental Rights of the European Union, read in conjunction with Article 4(3) TEU, be interpreted as meaning that the institutions of the Union which are involved in the adoption of a decision whose validity is challenged in proceedings before a national court are bound to provide that court, if requested to do so, with all the information at their disposal and which was taken into account, or should have been taken into account, by them in the adoption of that decision?

1(c) Must Article 47 of the Charter of Fundamental Rights of the European Union be interpreted as meaning that the right to an effective remedy requires the court to conduct a robust review of whether the conditions for the application of Article 13 of Regulation (EC) No 1225/2009 have been satisfied? In particular, does Article 47 mean that that court is competent to fully assess whether the facts have been fully and adequately established so as to justify the legal effect relied upon? In particular, does Article 47 also mean that that court is competent to fully assess whether facts which were allegedly not taken into account in the adoption of the decision, but which could be detrimental to the legal effect associated with the facts which were established, should have been taken into account?

2(a) Must the term “relevant information” in Article 15(2) of Regulation (EC) No 1225/2009 be interpreted as including the response of an independent importer of the goods forming the subject of the investigation referred to in that provision, established in the European Union, to the findings of the Commission, if that importer was notified of that investigation by the Commission, provided requested information to the Commission and, having been given the opportunity to do so, responded in a timely fashion to the Commission’s findings?

2(b) If question 2(a) is answered in the affirmative, can that importer then plead infringement of Article 15(2) of Regulation (EC) No 1225/2009 if the response submitted by him was not made available at least 10 working days prior to the meeting of the Advisory Committee provided for in that provision?

2(c) If question 2(b) is answered in the affirmative, does that infringement of Article 15(2) of Regulation (EC) No 1225/2009 mean that that decision is unlawful and that it should not be implemented?’

24. Written observations were submitted by Eurobolt, the Italian and Netherlands Governments and by the Council and the European Commission. At the end of the written part of the procedure, the Court considered that it had sufficient information to proceed to judgment without a hearing, in accordance with Article 76(2) of the Court’s Rules of Procedure.

25. By its first sub-question, the referring court asks the Court, in essence, to clarify the scope of the task of the national courts when a question of the validity of an EU act is raised before them. The answer to those questions is to be found in the mechanism of judicial review that prevails in the European Union, which is based on the rule of law.

26. It is clear from Les Verts that the European Union is a union based on the rule of law, inasmuch as neither its Member States nor its institutions can avoid a review of the question of whether the measures adopted by them are in conformity with the basic constitutional charter, the Treaty, or the law which derives from it. (6) That means that ‘individual parties have the right to challenge before the courts the legality of any decision or other national measure relating to the application to them of an EU act’. (7)

27. To that end, the FEU Treaty has established, by Articles 263 and 277, on the one hand, and Article 267, on the other, a complete system of legal remedies and procedures designed to ensure judicial review of the legality of European Union acts, and has entrusted such review to the Courts of the European Union. (8)

28. Therefore, there is no doubt that judicial review of compliance with the European Union legal order is ensured by the Court of Justice and the courts and tribunals of the Member States. Article 19 TEU, which gives concrete expression to the value of the rule of law stated in Article 2 TEU, explicitly entrusts the responsibility for ensuring judicial review in the EU legal order not only to the Court of Justice but also to national courts and tribunals. (9)

29. In that context, it must also be recalled, first, that Article 19 TEU and Article 47 of the Charter are clearly linked. Indeed, according to the Court, the obligation imposed on the Member States in the second subparagraph of Article 19(1) TEU, to provide remedies sufficient to ensure effective legal protection in the fields covered by Union law, corresponds to the right enshrined in Article 47 of the Charter, which provides that everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal. (10) Second, requests for preliminary rulings which seek to ascertain the validity of a measure constitute, like actions for annulment, a means for reviewing the legality of European Union acts. (11)

30. It follows from this context and, above all, from the parallelism between the action for annulment and the request for a preliminary ruling that, as Article 267 TFEU is silent on that question, the grounds of review cited by Article 263 TFEU may be used to plead the invalidity of the European Union act at issue before a national court with a view to provoking a preliminary reference to the Court of Justice. (12)

31. It can be added that the Court has already ruled that ‘the jurisdiction of the Court to give preliminary rulings under Article [267 TFEU] concerning the validity of acts of the [Union] institutions cannot be limited by the grounds on which the validity of those measures may be contested’. (13) On the basis of this case-law, it can even be argued that the preliminary ruling on the validity of Union law is not limited to the grounds specified for the action for annulment. (14)

32. The second sub-question concerns the collaboration between the national judge and EU institutions involved in litigation. Indeed, by that question, the referring court asks the Court if Article 47 of the Charter, read in conjunction with Article 4(3) TEU, is to be interpreted as meaning that the institutions of the Union which are involved in the adoption of a decision whose validity is challenged in proceedings before a national court are bound to provide that court, if requested to do so, with all the information at their disposal and what was taken into account, or should have been taken into account, by them in the adoption of that decision.

33. As already mentioned, Article 19 TEU explicitly entrusts the responsibility for ensuring judicial review in the EU legal order to the Court of Justice and to national courts and tribunals. In so doing, Article 19 TEU confirms that the national judge is the first judge to apply EU law. (15)

34. For that purpose, if the judges in national courts have no jurisdiction themselves to declare that EU acts are invalid, (16) those courts may consider the validity of an EU act. If they consider that the grounds put forward by the parties in support of invalidity are unfounded, they may reject them, concluding that the measure is completely valid. On the other hand, where such a court considers that one or more arguments for invalidity, put forward by the parties or, as the case may be, raised of its own motion, are well founded, it is incumbent upon it to stay proceedings and to make a reference to the Court for a preliminary ruling on the act’s validity. (17)

35. In that context, as the national judge must have all the information necessary to guarantee the application and effectiveness of EU law, he must also have all the information necessary to proceed to the preliminary examination of legality and evaluate the necessity to make a preliminary ruling on the ground of Article 267 TFEU.

36. That is why, if a national court needs information that only EU institutions can provide, the principle of loyal cooperation laid down in Article 4(3) TEU will, in principle, require EU institutions when requested to do so by the national court to provide that information as soon as possible, unless refusal to provide such information is justified by overriding reasons relating to the need to avoid any interference with the functioning and independence of the Union or to safeguard its interests. (18)

37. This is especially true because that rule finds its justification in the fact that the European Union is a union based on the rule of law, inasmuch as neither its Member States nor its institutions can avoid a review of whether the measures adopted by them are in conformity with the Treaty, (19) and so ‘the duty of sincere cooperation imposed on [EU] institutions is of particular importance vis-à-vis the judicial authorities of the Member States, who are responsible for ensuring that [EU] law is applied and respected in the national legal system’. (20)

38. Nevertheless, it must be recalled that ‘measures of the EU institutions are in principle presumed to be lawful and accordingly produce legal effects until such time as they are withdrawn, annulled in an action for annulment or declared invalid following a reference for a preliminary ruling or a plea of illegality’. (21) It follows from this presumption that it is for the applicant invoking the illegality to demonstrate, first, the probability of their allegation and to provide all the information at their disposal.

39. The third sub-question concerns the scope of the judicial review. By its question, the referring court considers the assessment of the correctness of the facts but also the faculty to assess the completeness and the adequacy of the established facts.

40. It must be observed in that regard that, according to the Court’s case-law, in the sphere of the common commercial policy and, most particularly, in the realm of measures to protect trade, the EU institutions enjoy broad discretion because of the complexity of the economic, political and legal situations they have to examine. The judicial review of such discretion must therefore be limited to verifying whether the procedural rules have been complied with, whether the facts on which the contested decision is based have been accurately stated, and whether there has been a manifest error in the appraisal of those facts or a misuse of powers. (22)

41. As the Court has already stated regarding the General Court’s review of evidence, ‘the General Court must therefore not only establish whether the evidence put forward is factually accurate, reliable and consistent but also ascertain whether that evidence contained all the relevant information which had to be taken into account in order to assess a complex situation and whether it was capable of substantiating the conclusions reached’. (23)

42. As mentioned earlier, if the national courts have no jurisdiction themselves to declare that EU acts are invalid, those courts may consider the validity of an EU act. There is therefore no reason why the case law cited in the preceding paragraph does not apply to those courts.

43. In this perspective, the national judge must, without any doubt, be allowed to verify whether the procedural rules have been complied with, whether the facts on which the contested decision is based have been accurately stated but also whether the competent institution has taken into account all the relevant facts.

44. In doing so, the national judge does not substitute his assessment of the facts for that of the institution on which the Treaty has placed that task; he simply checks that the act was adopted on the basis of correct and sufficient information to allow a relevant assessment. This seems to me to be consistent with the role of a court or a tribunal which has jurisdiction to review the validity of an act.

45. By contrast, having collected and verified the relevant facts, since the EU institutions enjoy broad discretion in the realm of measures to protect trade, the judge reviewing the legality can assess only whether there is manifest error in the appraisal of these facts or in the omission of other facts. The assessment of the substantive conditions (under the basic regulation) is subject to the same limitation.

46. By its second question, the referring court asks the Court, in essence, if Implementing Regulation No 723/2011 is invalid by reference to the provisions of Article 15(2) of the basic regulation, inasmuch as the observations which Eurobolt submitted in response to the Commission’s findings (24) — if they are relevant information within the meaning of that provision — were not put at the disposal of the Advisory Committee no later than 10 working days before its meeting.

47. The basic regulation does not define the concept of ‘relevant information’. It is, however, apparent from the scheme of the basic regulation that the term ‘all relevant information’ in Article 15(2) of the basic regulation includes the response of an independent importer of the goods which are the subject of the Commission investigation.

48. Indeed, anti-dumping duties and their extension in case of circumvention are adopted by the Council, acting on a proposal from the Commission, after consultation of the Advisory Committee. The Commission proposal is based on the results of an investigation in which the views and information provided by the interested parties have to be taken into account under Article 5(10) of the basic regulation. Article 6(7) of that regulation adds that the complainants, importers and exporters and their representative associations, users and consumer organisations which have made themselves known in accordance with Article 5(10), may, in principle, inspect all information made available by any party to an investigation. According to that provision, ‘such parties may respond to such information and their comments shall be taken into consideration, wherever they are sufficiently substantiated in the response’. (25) Lastly, Article 20(4) of the basic regulation provides that ‘final disclosure shall be given in writing. It shall be made … as soon as possible and, normally, no later than one month prior to a definitive decision or the submission by the Commission of any proposal for final action pursuant to Article 9 …’, and Article 20(5) points out that representations made after final disclosure is given shall be taken into consideration if received within the period set by the Commission, which shall be at least 10 days.

49. That interpretation is confirmed by recital 12 of the basic regulation which underlined the importance of the rights of the defence and the opportunity for interested parties to present their views and defend their interests throughout the procedure.

50. In light of the foregoing considerations, it is clear that the information, observations and views provided to the Commission during the investigation, as well as observations submitted in response to the Commission’s findings on the investigation are, therefore, necessarily ‘relevant information’ for the Advisory Committee in order that it may give a relevant opinion on the Commission proposal. It is thus clear that the information supplied by Eurobolt in its letter of 13 June 2011 constituted ‘relevant information’ for this purpose.

51. As observations submitted in response to the Commission’s findings on the investigation constitute ‘relevant information’ under Article 15(2) of the basic regulation, the question then arises whether, and if so, what consequences should be attached to the fact that the Advisory Committee was not informed within the prescribed time limit.

52. First, it should be recalled that where an EU institution enjoys broad discretion — which is, as already pointed out, the case in the realm of measures to protect trade such as anti-dumping measures, (26) — a review of compliance with certain procedural guarantees is of fundamental importance. (27)

53. Article 15 of the basic regulation especially seeks to ensure the organisation in an orderly fashion of one of the obligatory steps of the procedure for the adoption of an anti-dumping duty, namely, the Advisory Committee’s consultation. This provision accordingly contains a number of procedural guarantees such as the requirement that the communication of all relevant information must be made ‘as promptly as possible, but no later than 10 working days before the meeting’.

54. There is thus no doubt but that Article 15 of the basic regulation can — in principle, at least — be relied on as a ground of an action for annulment or for a preliminary ruling on the issue of validity.

(b) Consequences of the infringement of Article 15(2) of the basic regulation

55. As a reminder, the Advisory Committee consists of representatives of each Member State, with a representative of the Commission as chairman. (28) This kind of committee is not unusual in the procedure for adopting acts of EU law.

56. Indeed, under the new legislation actually in force, the Advisory Committee is merely replaced by a committee within the meaning of Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers. (29)

57. In the context of Regulation No 182/2011, I would observe that, when the legislator requires that information has to be sent to the representatives of the Member States within a certain period of time, the Court has already ruled that this kind of time limit aims to guarantee that the governments of the Member States are informed about the Commission’s proposals through their committee member. (30) This kind of time limit further ensures that Member States have the time necessary to study the documents, which may be particularly complex and may require considerable contact and discussion between different administrative authorities, or internal and external consultations. (31)

58. In the present case, it cannot be denied that Article 15(2) pursues precisely this objective since recital 25 expressly points out that ‘information provided to Member States in the Advisory Committee is often of a highly technical nature and involves an elaborate economic and legal analysis’ and adds that ‘in order to provide Member States with sufficient time to consider this information, it should be sent at an appropriate time before the date of a meeting set by the Chairman of the Advisory Committee’.

59. Though the recital uses a conditional form, Article 15(2) of the basic regulation uses the indicative. Furthermore, the legislator added a strict time limit by the adjunction of the words ‘no later than 10 working days’ after the expression ‘as promptly as possible’. As the Court has already ruled in other contexts, ‘there can be no doubt that such wording makes that time limit binding’. (32)

60. This interpretation is also consistent with one of the main objectives of the basic regulation, which, according to recital 12, clearly sets out the rules and procedures to be followed during the investigation, in particular the rules whereby interested parties are to make themselves known, present their views and submit information within specified time limits, if such views and information are to be taken into account.

61. In the light of the foregoing considerations, I find myself obliged to apply the solution adopted by the Court in Tilly-Sabco v Commission and conclude that the requirements laid down by Article 15(2) of the basic regulation constitute ‘essential procedural requirements governing the proper conduct of proceedings, breach of which renders the act concerned void’. (33)

62. It is true that the infringement contested in that previous case was not the late submission of information but rather the late communication of the draft implementing act itself.

63. One might nevertheless observe that the principle underlying the reasoning in Tilly-Sabco is not based on the nature of the document submitted but rather turns on the objective of the time limit from submission of the draft implementing act and of the draft agenda. As underlined by the Court, that time limit ‘is to enable an unhurried examination of a draft implementing act before a meeting, by the Management Committee members’. (34) This requirement constitutes, according to the Court, one of those essential procedural requirements governing the proper conduct of proceedings, breach of which renders the act concerned void. (35)

64. In the present case, the legislator itself insists on the importance of a sufficient time to consider not only the Commission’s proposal but also the relevant information. Indeed, as previously pointed out, recital 25 of the basic regulation states that information provided to Member States in the Advisory Committee is often of a highly technical nature and involves an elaborate economic and legal analysis. For that reason, ‘in order to provide Member States with sufficient time to consider this information, it should be sent at an appropriate time before the date of a meeting set by the Chairman of the Advisory Committee’.

65. It is against this background that Article 15(2) of the basic regulation provides that the Advisory Committee’s chairman shall provide the Member States with all relevant information, as promptly as possible and adds a strict limit with the words ‘but no later than 10 working days before the meeting’.

66. In those circumstances, having regard to the wording and the objective of Article 15(2) of the basic regulation, I do not see why any other solution should be given in the case of an infringement of that provision other than that which the Court applied in Tilly-Sabco v Commission. The time limit laid down by that provision represents an essential procedural requirement governing the proper conduct of proceedings, a breach of which renders the act concerned void.

67. I now turn to the question of whether there was, in fact, such a breach in the present case.

68. In the present case, it is admitted that the Advisory Committee did not receive all the relevant information 10 working days prior to its meeting contrary to what Article 15(2) of the basic regulation provides. In these circumstances, the conclusion that there has been a breach is unavoidable.

69. The consequence of the infringement of this time limit is that the act adopted in the context of this procedure is void. In the present case, this also means that Regulation No 723/2011 is invalid.

70. It is true that the referring court does not, in terms, directly question the validity of Regulation No 723/2011. It is nonetheless clear from the terms of both questions 2(b) and 2(c) that the referring court has sought clarification on the implications of the failure to adhere to the requirements of Article 15(2) of the basic regulation. As the immediate consequence of such a failure so far as the present case is concerned is that the implementing Regulation is rendered invalid, I consider that the Court cannot avoid pronouncing on this issue — which, in any event, seems to be implicit in the questions posed by the referring Court — if a useful answer to this preliminary reference is to be given.

71. As, moreover, I have already observed, national courts have no jurisdiction themselves to declare that EU acts are invalid. (36) In that particular context and having regard to the nature of the questions posed by the referring Court and the general desirability of avoiding a second request for a preliminary ruling, I propose that the Court should declare Regulation No 723/2011 invalid.

72. Accordingly, I propose that the Court should answer the questions referred by the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) as follows:

1(a) Article 47 of the Charter of Fundamental Rights of the European Union, read in conjunction with Article 4(3) TEU, must be interpreted as meaning that the grounds of review cited by Article 263 TFEU may be used to plead invalidity of the European Union act at issue before a national court with a view to provoking a preliminary reference to the Court of Justice.

1(b) It is for the applicant invoking the illegality of an EU act to demonstrate, first, the probability of their allegation and to provide all the information at their disposal. However, if a national court needs information that only EU institutions can provide, the principle of loyal cooperation laid down in Article 4(3) TEU requires EU institutions, when requested to do so by the national court, to provide that information as soon as possible, unless refusal to provide such information is justified by overriding reasons relating to the need to avoid any interference with the functioning and independence of the Union or to safeguard its interests.

1(c) The national judge reviewing the legality is allowed to verify whether procedural rules have been complied with, whether the facts on which the contested decision is based have been accurately stated and also whether the competent institution has taken into account all the relevant facts. The judge reviewing the legality is also allowed to verify whether there is a manifest error in the appraisal of the conditions of Article 13 of the Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community.

2(a) The term ‘all relevant information’ in Article 15(2) of Regulation No 1225/2009 must be interpreted as including the observations submitted by interested parties in response to the Commission’s findings on the investigation.

2(b) The requirements laid down by Article 15(2) of Regulation No 1225/2009 are essential procedural requirements governing the proper conduct of proceedings. Therefore, an importer can plead infringement of Article 15(2) of Regulation No 1225/2009 if the response submitted by him was not made available to the Advisory Committee at least 10 working days prior to the meeting.

2(c) The adoption of anti-dumping measures in breach of the time limit provided for by Article 15(2) of Regulation No 1225/2009 renders the act at issue void.

3. Council Implementing Regulation (EU) No 723/2011 of 18 July 2011 extending the definitive anti-dumping duty imposed by Regulation (EC) No 91/2009 on imports of certain iron or steel fasteners originating in the People’s Republic of China to imports of certain iron or steel fasteners consigned from Malaysia, whether declared as originating in Malaysia or not is invalid.

5 Commission Regulation of 27 October 2010initiating an investigation concerning the possible circumvention of anti-dumping measures imposed by Council Regulation (EC) No 91/2009 on imports of certain iron or steel fasteners originating in the People’s Republic of China by imports of certain iron or steel fasteners consigned from Malaysia, whether declared as originating in Malaysia or not, and making such imports subject to registration (OJ 2010 L 282, p. 29).

6 Judgment of 23 April 1986, Les Verts v ParliamentLes Verts v ParliamentLes Verts v ParliamentLes Verts v Parliament, 294/83, EU:C:1986:166, paragraph 23.

7 Judgment of 27 February 2018, Associação Sindical dos Juízes PortuguesesAssociação Sindical dos Juízes Portugueses (C‑64/16, EU:C:2018:117, paragraph 31). See, also, judgment of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and CouncilInuit Tapiriit Kanatami and Others v Parliament and CouncilInuit Tapiriit Kanatami and Others v Parliament and CouncilInuit Tapiriit Kanatami and Others v Parliament and CouncilInuit Tapiriit Kanatami and Others v Parliament and CouncilInuit Tapiriit Kanatami and Others v Parliament and CouncilInuit Tapiriit Kanatami and Others v Parliament and Council (C‑583/11 P, EU:C:2013:625, paragraph 94).

8 See, to that effect, judgments of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and CouncilInuit Tapiriit Kanatami and Others v Parliament and CouncilInuit Tapiriit Kanatami and Others v Parliament and CouncilInuit Tapiriit Kanatami and Others v Parliament and CouncilInuit Tapiriit Kanatami and Others v Parliament and CouncilInuit Tapiriit Kanatami and Others v Parliament and CouncilInuit Tapiriit Kanatami and Others v Parliament and CouncilInuit Tapiriit Kanatami and Others v Parliament and Council (C‑583/11 P, EU:C:2013:625, paragraph 92 and the case-law cited), and of 28 March 2017, Rosneft (C‑72/15, EU:C:2017:236, paragraph 66).

9 See, to that effect, Opinion 1/09 (Agreement creating a Unified Patent Litigation System) of 8 March 2011 (EU:C:2011:123, paragraph 66); judgments of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and CouncilInuit Tapiriit Kanatami and Others v Parliament and CouncilInuit Tapiriit Kanatami and Others v Parliament and CouncilInuit Tapiriit Kanatami and Others v Parliament and CouncilInuit Tapiriit Kanatami and Others v Parliament and CouncilInuit Tapiriit Kanatami and Others v Parliament and CouncilInuit Tapiriit Kanatami and Others v Parliament and Council (C‑583/11 P, EU:C:2013:625, paragraph 90), and of 27 February 2018, Associação Sindical dos Juízes PortuguesesAssociação Sindical dos Juízes PortuguesesAssociação Sindical dos Juízes PortuguesesAssociação Sindical dos Juízes PortuguesesAssociação Sindical dos Juízes PortuguesesAssociação Sindical dos Juízes PortuguesesAssociação Sindical dos Juízes Portugueses (C‑64/16, EU:C:2018:117, paragraph 32).

10 See, to that effect, judgments of 16 May 2017, Berlioz Investment FundBerlioz Investment Fund (C‑682/15, EU:C:2017:373, paragraph 44), and of 26 July 2017, Sacko(C‑348/16, EU:C:2017:591, paragraph 30).

11 See, to that effect, judgments of 22 October 1987,Foto-FrostFoto-Frost (314/85, EU:C:1987:452, paragraph 16), and of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and CouncilInuit Tapiriit Kanatami and Others v Parliament and CouncilInuit Tapiriit Kanatami and Others v Parliament and CouncilInuit Tapiriit Kanatami and Others v Parliament and CouncilInuit Tapiriit Kanatami and Others v Parliament and CouncilInuit Tapiriit Kanatami and Others v Parliament and CouncilInuit Tapiriit Kanatami and Others v Parliament and Council (C‑583/11 P, EU:C:2013:625, paragraph 95 and the case-law cited).

12 See Craig, P., and De Búrca, G., EU Law: Text, Cases and Materials, 6th Edition, Oxford University Press, Oxford, 2015, p. 544; Pertek, J., Coopération entre juge nationaux et Cour de justice de l’UE. Le renvoi préjudiciel, Bruylant, Brussels, 2013, No 518.

14 See, to that effect, Lenaerts, K., Maselis, I., Gutman, K., EU Procedural Law, Oxford University Press, 2014, p. 360.

15 See, to that effect, Blumann, Cl., ‘L’organisation des juridictions de l’Union au lendemain du traité de Lisbonne’, inMahieu, St., (dir.), Contentieux de l’Union européenne, questions choisies, Larcier, coll. Europe(s), Brussels, 2014, pp. 17 to 41, in particular, pp. 25 and 27; Hofmann, H. Ch., ‘Article 47 — Specific Provisions (Meaning)’, in Peers, St., Hervey, T., Kenner, J., and Ward, A. (ed.), The EU Charter of Fundamental Rights — A commentary, Hart Publishing, 2014, pp. 1197 to 1275, in particular, No 47.50.

16 Judgment of 22 October 1987, Foto-FrostFoto-Frost(314/85, EU:C:1987:452, paragraph 20).

17 See, to that effect, judgment of 10 January 2006, IATA and ELFAA(C‑344/04, EU:C:2006:10, paragraph 30).

18 See, to that effect, judgment of 26 November 2002, First and FranexFirst and Franex (C‑275/00, EU:C:2002:711, paragraph 49 and the case-law cited).

19 See, to that effect, order of 13 July 1990, Zwartveld and OthersZwartveld and Others(C‑2/88‑IMM, EU:C:1990:315, paragraph 16).

20 Order of 13 July 1990, Zwartveld and OthersZwartveld and Others (C‑2/88‑IMM, EU:C:1990:315, paragraph 18).

21 Judgment of 6 October 2015, Schrems (C‑362/14, EU:C:2015:650, paragraph 52).

22 See, to that effect, judgments of 16 February 2012, Council v Interpipe Niko Tube and Interpipe NTRPCouncil v Interpipe Niko Tube and Interpipe NTRPCouncil v Interpipe Niko Tube and Interpipe NTRPCouncil v Interpipe Niko Tube and Interpipe NTRPCouncil v Interpipe Niko Tube and Interpipe NTRPCouncil v Interpipe Niko Tube and Interpipe NTRP (C‑191/09 P and C‑200/09 P, EU:C:2012:78, paragraph 63); of 14 December 2017, EBMA v Giant (China)EBMA v Giant (China)EBMA v Giant (China) (C‑61/16 P, EU:C:2017:968, paragraph 68); and of 4 September 2014, Simon, Evers & Co. (C‑21/13, EU:C:2014:2154, paragraph 29).

23 Judgment of 14 December 2017, EBMA v Giant (China)EBMA v Giant (China)EBMA v Giant (China)(C‑61/16 P, EU:C:2017:968, paragraph 69, emphasis added).

24 In the present case, that concerns the provisional conclusions of the Commission entitled ‘General disclosure document R 515’ (‘Anti-circumvention proceeding concerning imports of certain iron or steel fasteners consigned from Malaysia, whether declared as originating in Malaysia or not — Proposal to extend the definitive anti-dumping duties to Malaysia’).

27 See, to that effect, judgments of 16 June 2015, Gauweiler and OthersGauweiler and Others (C‑62/14, EU:C:2015:400, paragraph 69), and of 11 December 2018, Weiss and Others(C‑493/17, EU:C:2018:1000, paragraph 30).

29 OJ 2011 L 55, p. 13. See Article 15(1) of Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on protection against dumped imports from countries not members of the European Union (OJ 2016 L 176, p. 21).

30 See, to that effect, judgment of 20 September 2017, Tilly-Sabco v CommissionTilly-Sabco v CommissionTilly-Sabco v CommissionTilly-Sabco v Commission (C‑183/16 P, EU:C:2017:704, paragraph 103).

31 See, to that effect, judgments of 10 February 1998, Germany v CommissionGermany v CommissionGermany v Commission (C‑263/95, EU:C:1998:47, paragraph 31), and of 20 September 2017, Tilly-Sabco v CommissionTilly-Sabco v CommissionTilly-Sabco v CommissionTilly-Sabco v Commission (C‑183/16 P, EU:C:2017:704, paragraph 103).

32 Judgment of 29 July 2010, Greece v CommissionGreece v CommissionGreece v Commission (C‑54/09 P, EU:C:2010:451, paragraph 46).

33 Judgment of 20 September 2017, Tilly-Sabco v CommissionTilly-Sabco v CommissionTilly-Sabco v CommissionTilly-Sabco v Commission (C‑183/16 P, EU:C:2017:704, paragraph 114. See, also, judgment of 10 February 1998, Germany v CommissionGermany v CommissionGermany v Commission (C‑263/95, EU:C:1998:47, paragraph 32).

34 Judgment of 20 September 2017, Tilly-Sabco v CommissionTilly-Sabco v CommissionTilly-Sabco v CommissionTilly-Sabco v Commission (C‑183/16 P, EU:C:2017:704, paragraph 102. It could be added that the arguments alleged by the Commission according to which the members of the Management Committee did not complain about the Commission’s conduct, that the rules for the consultation of a committee are intended to ensure that the prerogatives of its members are respected, not to protect the rights of economic operators and that the applicant failed to establish that in the absence of the alleged infringement the outcome of the procedure would have been different were not considered as relevant by the Court.

35 Judgment of 20 September 2017, Tilly-Sabco v CommissionTilly-Sabco v CommissionTilly-Sabco v CommissionTilly-Sabco v Commission (C‑183/16 P, EU:C:2017:704, paragraph 114.

36 Judgment of 22 October 1987, Foto-FrostFoto-Frost (314/85, EU:C:1987:452, paragraph 20).

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Eurobolt (Right to an effective remedy - Scope of the national judicial review of a Union measure - Opinion) [2019] EUECJ C-644/17_O (28 February 2019) URL: http://www.bailii.org/eu/cases/EUECJ/2019/C64417_O.html Cite as: [2020] 1 WLR 879, [2019] EUECJ C-644/17_O, ECLI:EU:C:2019:164, EU:C:2019:164, [2020] WLR 879

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